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Big Crow v. City of Rushwille12/10/2002
Wallace Joseph Big Crow (Big Crow) filed a negligence suit against the City of Rushville, Nebraska (the City), after his son, Richard Lee Big Crow (Richard), was killed in a motor vehicle-pedestrian accident. The district court for Sheridan County entered summary judgment for the City because Big Crow did not strictly comply with procedural requirements of the Nebraska Political Subdivisions Tort Claims Act (the Act).
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of November 1, 1998, between approximately 1:45 and 2:34 a.m., Richard was killed on Highway 87 in a motor vehicle-pedestrian accident. He was found lying on Highway 87, approximately one-half mile from the City. The autopsy report showed that Richard had a blood alcohol level of .314 grams per 100 milliliters of blood.
Big Crow, the administrator of Richard's estate, served written notice of a claim against the City pursuant to the Act on Chief Paul Anderson of the Rushville Police Department and Sharon Michaelson, secretary of the City, on October 26 and 27, 1999, respectively. The notice stated that "upon information and belief," Richard was last seen alive by law enforcement officers from the Rushville Police Department. According to the notice, signed by a South Dakota lawyer who indicated that his law firm was representing Big Crow,
t is the position of Richard Lee Big Crow's family that if he was intoxicated, as indicated in the autopsy report, he should have been picked up and placed in a treatment center, detoxification center, or some other safe place in order to prevent him from harming himself, or allowing others to harm him.
The notice demanded $350,000 to settle the matter. The City did not respond to the claim.
On April 21, 2000, Big Crow filed suit under the Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue 1997 & Cum. Supp. 2002), in the district court for Sheridan County. The operative petition, an amended petition filed on July 24, states two causes of action: (1) negligence in training and supervision of Rushville police officers and (2) failure of law enforcement officers to act. The petition alleges that Rushville law enforcement officers came into contact with Richard on the night of his death, but that despite their duty to protect him, they failed to do so.
On April 30, 2001, the City filed a motion for summary judgment. The motion cites no specific grounds for summary judgment other than that "there is no genuine issue as to any material fact regarding issues raised in [Big Crow]'s Amended Petition and that the [City] is therefore entitled to judgment as a matter of law."
Big Crow, by another South Dakota lawyer, filed a "response" and subsequently a "final response" to the summary judgment motion. These pleadings are actually in the nature of briefs arguing Big Crow's position before and after the summary judgment hearing, rather than recognized pleadings under Nebraska rules of practice and procedure, but they are part of our transcript. The "response," filed before the hearing, says:
Pursuant to conversations with [the City's] counsel . . . the basis of the Motion . . . is limited to the legal issue of sufficient notice to the City . . . . According to discussions with [the City's counsel], no factual issues will be presented on the same. . . . he only issue addressed in this brief and the only issue [Big Crow] is agreeing to resolve regarding summary judgment is notice to the City . . . .
The "final response" addresses Big Crow's failure to withdraw the claim from the City before initiating suit in the district court, as required by § 13-906, which provides:
No sui
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