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Henery v. City of Omaha4/12/2002
Appeal from the District Court for Douglas County: W. Mark Ashford, Judge. Affirmed. Cross-appeal dismissed.
NATURE OF CASE
During a police pursuit, a motor vehicle driven by Douglas L. Henderson collided with a building, and the vehicle's passenger, Carol Lee Henery (Henery), was killed. Jeffrey W. Henery, the special administrator of Henery's estate (special administrator), filed a petition in the district court for Douglas County alleging that the City of Omaha was liable for damages due to Henery's death by operation of Neb. Rev. Stat. § 13-911 (Reissue 1991) in that Henery was an "innocent third party" whose death was proximately caused by the vehicular pursuit by an Omaha police officer. The city filed an answer generally denying liability. Independently of its answer, the city filed a third-party petition against Henderson, generally alleging that Henderson was responsible for Henery's death and seeking judgment against Henderson in the event the city were found liable for damages for Henery's death.
The district court concluded that Henery was an "innocent third party" within the meaning of § 13-911 and concluded that the city was liable for damages due to Henery's death. The district court entered judgment against the city and in favor of the special administrator of Henery's estate in the amount of $185,211.22. The city appeals from the district court's judgment. Henderson filed a cross-appeal. We affirm the district court's judgment against the city and in favor of Henery's estate. Due to the lack of a final order as between the city and Henderson, we dismiss Henderson's cross-appeal.
STATEMENT OF FACTS
The relevant facts are not in dispute. At approximately 1:30 a.m. on July 28, 1991, Omaha police officer Charles Matson, patrolling in a marked police cruiser, observed a vehicle with two occupants driving north on Park Avenue at an excessive rate of speed. It was later determined that Henderson was the vehicle's driver and that Henery was a passenger in the car. Matson estimated that the vehicle was exceeding the posted speed limit by approximately 20 miles per hour. When the vehicle did not slow down, Matson initiated pursuit of Henderson as a speeder and suspected drunk driver.
Henderson turned his vehicle east onto Leavenworth Street. Matson followed in pursuit. Near 19th and Leavenworth Streets, Matson activated his overhead rotating lights. Several times during the police pursuit, he also gave short blasts of his police siren in an attempt to gain Henderson's attention. The parties have stipulated that Henderson was aware or should have been aware of Matson's pursuit and that he was "resisting apprehension by maintaining or increasing his speed, ignoring Officer Matson, or attempting to elude the officer while driving at speeds in excess of those reasonable and proper under the circumstances."
Matson lost sight of Henderson's vehicle after it crested a hill at 16th and Leavenworth Streets. As he approached the same hill, Matson heard screeching tires and a loud crash. Once he had gained the top of the hill, he saw that the vehicle driven by Henderson had left Leavenworth Street near 14th Street, traveled across a vacant lot, and crashed along its passenger side into a brick building.
Henery sustained serious injuries as a result of the accident and died without recovering consciousness. It was later determined that passenger Henery's blood alcohol level was 0.123. The driver, Henderson, was injured in the accident, and although he refused to undergo chemical tests to determine whether he was intoxicated, blood drawn for purposes of medical treatment was tested and the report listed an alcohol
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