Cotton v. State

K imberly C otton, appellant, v.
State of nebraSKa , appellee .
810 N.W.2d 132
Filed July 1, 2011. 	No. S-10-114.
1. Tort Claims Act: Appeal and Error. A district court’s findings of fact in a pro-
ceeding under the State Tort Claims Act will not be set aside unless such findings
are clearly erroneous.
2. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law
are presented, in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision made by the
court below.
3. Trial: Evidence. An objection based upon insufficient foundation is a gen-
eral objection.
4. Trial: Evidence: Appeal and Error. If an objection based on foundation is over-
ruled, the objecting party may not complain on appeal unless (1) the ground for
exclusion was obvious without stating it or (2) the evidence was not admissible
for any purpose.
5. ____: ____: ____. An improper exclusion of evidence is ordinarily not prejudicial
where substantially similar evidence is admitted without objection.
6. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of
sovereign immunity of the State or its subdivisions are strictly construed in favor
of the sovereign and against the waiver.
7. Judgments: Appeal and Error. In making the determination as to factual ques-
tions, an appellate court does not reweigh the evidence or resolve conflicts in the
evidence, but, rather, recognizes the trial court as the finder of fact and takes into
consideration that it observed the witnesses.
Appeal from the District Court for Sarpy County: DaviD K.
arterburn, Judge. Affirmed.
Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., for
appellant.
Robert S. Keith, of Engles, Ketcham, Olson & Keith, P.C.,
for appellee.
H eaviCan, 	C.J., 	WrigHt, 	C onnolly, 	gerrarD, 	StepHan,
mCC ormaCK, and miller-lerman, JJ.
per C uriam.
NATURE OF CASE
Kimberly Cotton appeals from the order and judgment
entered in favor of the State of Nebraska by the district court
COTTON v. STATE 	789
Cite as 281 Neb. 789
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

for Sarpy County in which the district court determined that
because no vehicular pursuit occurred under Neb. Rev. Stat.
§ 81-8,215.01(5) (Reissue 2008) of the State Tort Claims Act
and that, in any event, the actions of the driver of the vehicle
under investigation were the sole proximate cause of the acci-
dent in which Cotton was injured, the State was not liable to
Cotton as an injured innocent third party. We affirm.
STATEMENT OF FACTS
Cotton was severely injured in an accident that occurred
March 8, 2006, when a pickup crossed the centerline and
struck her vehicle. The pickup crossed the centerline because it
had been struck by a Ford Mustang driven by Aaron Anson at a
high rate of speed. Anson testified he was driving the Mustang,
a stolen vehicle, and was attempting to evade a Nebraska State
Patrol Trooper, Kent Kavan, when he hit the pickup.
Cotton filed the present action against the State of Nebraska
under the State Tort Claims Act, in particular § 81-8,215.01,
which makes the State liable for injuries to innocent third
parties proximately caused by a vehicular pursuit by a state-
employed law enforcement officer.
Section 81-8,215.01(1) provides: “In case of death, injury,
or property damage to any innocent third party proximately
caused by the action of a law enforcement officer employed
by the state during vehicular pursuit, damages shall be paid to
such third party by the state employing the officer.”
Section 81-8,215.01(5) defines “vehicular pursuit” as
an active attempt by a law enforcement officer operat-
ing a motor vehicle to apprehend one or more occupants
of another motor vehicle when the driver of the fleeing
vehicle is or should be aware of such attempt and is
resisting apprehension by maintaining or increasing his or
her speed, ignoring the officer, or attempting to elude the
officer while driving at speeds in excess of those reason-
able and proper under the conditions.
The state trooper, Kavan, testified that he initially saw a
Mustang pass on a highway near where he was parked. Kavan
thought that the Mustang might be one that had been reported
stolen but, because he did not have a good view of the license
790 	281 NEbRASKA REPORTS

plate, he did not have enough information for a traffic stop. The
Mustang continued on the highway. Kavan decided to catch up
to the Mustang in order to read the license plate and run the
numbers to determine whether it was the stolen vehicle.
When Kavan reached the stop sign at the entrance to the
highway, he had to wait for other vehicles to pass before he
could enter the highway. In the time it took to get onto the
highway, Kavan lost sight of the Mustang and various other
vehicles had come between Kavan and the Mustang. Kavan
testified that he did not activate his vehicle’s emergency lights
or siren, but that he drove at an increased rate of speed in his
unsuccessful attempt to catch up to the Mustang.
before he succeeded in approaching the Mustang, the acci-
dent occurred at some distance in front of Kavan. The record
shows that there were several vehicles between Kavan and the
Mustang at the time of the accident. Kavan activated his vehi-
cle’s emergency lights after he saw the accident, and he briefly
stopped to assess the accident scene. When Kavan saw the
Mustang drive out of the ditch and take off, he began to chase
it and continued this pursuit for a short time before he discon-
tinued the pursuit in order to return to the accident scene. The
stolen Mustang and its driver were later apprehended by other
law enforcement officers.
During Kavan’s testimony, the State offered into evidence
a copy of a videotape made from a camera inside Kavan’s
vehicle. The court admitted the videotape into evidence over
Cotton’s objection based on foundation. Kavan testified that
the camera was set up such that it would automatically begin
recording when he turned on the emergency lights on top of his
vehicle. The videotape was consistent with Kavan’s testimony
that he did not turn on his vehicle’s emergency lights until after
the accident occurred and that there were still vehicles between
Kavan and the Mustang when he turned on the lights.
Kavan’s testimony conflicted in important respects with the
testimony of Anson, the driver of the stolen Mustang. Anson
admitted that he was driving a stolen vehicle. He testified that
he did not see the trooper parked by the side of the highway
and that the first time he saw the trooper’s vehicle on the high-
way, it was about three or four vehicles behind him. He stated
COTTON v. STATE 	791
Cite as 281 Neb. 789

he considered turning off the highway to avoid the trooper.
Anson testified that soon after he initially saw the trooper’s
vehicle, it was directly behind him with its emergency lights
flashing. Anson stated that he began speeding in order to get
away and that the accident happened when he was trying to
pass other vehicles.
During the trial, Kavan and a sergeant with the State Patrol
attempted to testify regarding the meaning of the word “appre-
hend” in § 81-8,215.01(5). This testimony was excluded.
However, Cody Paro, another state trooper, did testify in a
manner similar to the excluded evidence.
In its findings of fact, the court discounted Anson’s tes-
timony and generally credited Kavan’s testimony. The court
found that “[t]he greater weight of the evidence demonstrates
that . . . Anson accelerated his vehicle to high speeds and
drove his car erratically, if not recklessly, prior to Trooper
Kavan engaging his emergency lights and siren.” The court
also found that there “is no credible evidence that Trooper
Kavan was directly behind Anson prior to the accident as con-
tended by Anson.” The court determined that Kavan had not
turned on his vehicle’s emergency lights or siren prior to the
accident and that Kavan was investigating the matter prior to
the accident.
The court concluded that Kavan’s actions did not constitute
an “active attempt to apprehend” Anson under the statute and
therefore concluded that a “vehicular pursuit” as defined in
§ 81-8,215.01(5) had not occurred prior to the accident. The
court also found that, even if there had been a pursuit,
the proximate cause of the accident was due solely to the
decision of . . . Anson to operate his vehicle in a reckless
manner. Anson made the decision to flee even though he
had no firm basis to believe that the trooper was pursuing
or trying to apprehend him. It is telling that no other vehi-
cles on the road made any attempt to flee from Kavan,
even though Kavan was clearly accelerating in an attempt
to catch up to someone or get somewhere quickly.
because there was no vehicular pursuit and, in any event,
Anson’s actions were the sole proximate cause of the injuries
to Cotton and Cotton “failed to prove that . . . Trooper Kavan’s
792 	281 NEbRASKA REPORTS

actions were a proximate cause of the accident,” the court
determined that the State was not liable to Cotton. The district
court entered judgment in favor of the State.
Cotton appeals.
ASSIGNMENTS OF ERROR
Cotton claims that the district court erred when it admitted
into evidence the videotape from the camera in Kavan’s vehicle
and excluded certain opinion testimony regarding the meaning
of the word “apprehend” under § 81-8,215.01(5). For a variety
of reasons, Cotton also claims, summarized and restated, that
the district court erred when it concluded that there was not
a vehicular pursuit under § 81-8,215.01(5) and that Anson’s
actions were the sole proximate cause of her injuries.
STANDARD OF REVIEW
[1] A district court’s findings of fact in a proceeding under
the State Tort Claims Act will not be set aside unless such find-
ings are clearly erroneous. Cingle v. State, 277 Neb. 957, 766
N.W.2d 381 (2009).
[2] To the extent that the meaning and interpretation of
statutes and regulations are involved, questions of law are
presented, in connection with which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. Travelers Indem. Co. v.
Gridiron Mgt. Group, ante p. 113, 794 N.W.2d 143 (2011).
ANALYSIS
Admission of the Videotape Was Not Error.
Cotton claims that the district court erred when it admitted
the videotape taken by the camera in Kavan’s vehicle which
depicted events at the accident scene. We find no merit to this
assignment of error.
The videotape was offered by the State at trial as support
for Kavan’s testimony that the camera automatically begins
recording when the emergency lights are activated and that
Kavan did not activate his lights until after the accident
occurred. The videotape also supported Kavan’s testimony that
there were several vehicles between Kavan’s vehicle and the
Mustang when Kavan activated his vehicle’s emergency lights.
COTTON v. STATE 	793
Cite as 281 Neb. 789

At trial, Cotton objected to admission of the videotape solely
on the basis of foundation. The objection was overruled, and
the videotape was received in evidence. On appeal, Cotton
claims that receipt of the videotape was error for a variety
of reasons.
[3,4] An objection based upon insufficient foundation is
a general objection. State v. Thompson, 278 Neb. 320, 770
N.W.2d 598 (2009). If such an objection is overruled, the
objecting party may not complain on appeal unless (1) the
ground for exclusion was obvious without stating it or (2)
the evidence was not admissible for any purpose. Id. We
understand Cotton’s appellate argument to be that the video-
tape was not admissible for any purpose.
Under 	the 	Nebraska 	Evidence 	Rules, 	Neb. 	Rev. 	Stat.
§ 27-1001(2) (Reissue 2008), photographs include video-
tapes. Videotapes are authenticated or identified where the
trial court is satisfied by sufficient evidence that the matter
in question is what its proponent claims. Neb. Rev. Stat.
§ 27-901 (Reissue 2008). The record shows that the testimony
surrounding the videotape was sufficient to establish that the
videotape accurately recorded the images and events in ques-
tion, that it had not been edited, and that the matter in ques-
tion was what the proponent purported it to be. Contrary to
Cotton’s objection, the foundation for receipt of the videotape
was sufficient.
There was a dispute at trial regarding whether Kavan had
activated his vehicle’s emergency lights prior to the accident.
The videotape included footage from the end of a previous
stop prior to and unrelated to the accident in question, fol-
lowed immediately by the accident scene. The videotape was
consistent with Kavan’s testimony that after the preceding
unrelated stop, the next time he activated the lights, thus turn-
ing on the camera, was after the accident. Contrary to Kavan’s
testimony, Anson testified that the lights were on prior to the
accident. According to Cotton, Anson’s testimony regarding the
lights provides some evidence that a vehicular pursuit was in
progress. The videotape was relevant to the issue of whether a
vehicular pursuit occurred.
794 	281 NEbRASKA REPORTS

The foundation for admitting the videotape was sufficient,
and the subject matter was relevant. The district court did not
err when it admitted the videotape.
Exclusion of Testimony Regarding Opinions as to
the Statutory Definition of “Apprehend”
Was Not Error.
Certain testimony was successfully objected to by the State
or otherwise stricken during the trial. Cotton claims it was
error for the district court to exclude the testimony of Kavan
and the State Patrol sergeant concerning their understanding of
the word “apprehend” as used in § 81-8,215.01(5). We find no
error in the district court’s rulings.
by various procedural means prior to and during the trial,
Cotton sought to elicit the opinions of Kavan and the State
Patrol sergeant with respect to their understanding of “appre-
hend” as used in § 81-8,215.01(5). The purpose of this pro-
posed testimony was to demonstrate to the court that “appre-
hend” was defined by experienced law enforcement people
as including “the act or investigation to catch someone in the
wrongdoing.” Cotton argues that this definition establishes
that even if Kavan was merely investigating or catching up to
Anson, such acts amount to an active attempt to apprehend,
thus satisfying the “apprehend” element in § 81-8,215.01(5).
A review of the record shows that the district court did permit
another state trooper, Paro, to give opinion testimony compa-
rable to that excluded above.
[5] The district court did not err when it excluded Cotton’s
proposed evidence regarding the meaning of “apprehend” as
used in § 81-8,215.01(5). The evidence sought to be entered
consisted of a legal opinion as to statutory interpretation. It
is generally not error to exclude evidence which calls for a
legal conclusion. See Heistand v. Heistand, 267 Neb. 300, 673
N.W.2d 541 (2004) (expert testimony concerning question of
law generally not admissible). Further, even if evidence is erro-
neously excluded, such error is reversible only if the complain-
ing party was prejudiced by the exclusion of such evidence. See
Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327,
754 N.W.2d 406 (2008). An improper exclusion of evidence is
COTTON v. STATE 	795
Cite as 281 Neb. 789

ordinarily not prejudicial where substantially similar evidence
is admitted without objection. Id.
Here, Paro’s testimony was substantially similar to the
excluded testimony and, regardless of the propriety of admit-
ting Paro’s testimony or the correctness of such opinion, Cotton
was not prejudiced by the rulings complained of. Cotton sought
to put before the trial court a certain understanding of “appre-
hend,” and she was able to do so. This assignment of error is
without merit.
The District Court Did Not Err When It Determined That
Anson’s Actions Were the Sole Proximate Cause of
Cotton’s Injuries and That the State Was Not
Liable Under § 81-8,215.01.
The substance of this case is Cotton’s claim that she was
entitled to damages under the State Tort Claims Act because
she was an innocent third party whose injuries were proxi-
mately caused by a vehicular pursuit conducted by a state law
enforcement officer. There is no dispute that she was an inno-
cent third party. Cotton claims the district court erred when it
concluded that a “vehicular pursuit” under § 81-8,215.01(5)
had not occurred prior to the accident, that her injuries were
not proximately caused by Kavan’s actions, and that the State
was not liable. She makes numerous arguments in support of
these claims.
Cotton focuses considerable attention in her appellate brief
on the issue of whether there was a vehicle pursuit under
§ 81-8,215.01(5). However, even assuming without deciding
that there was a pursuit, we determine the court’s factual find-
ings and conclusions to the effect that Anson’s actions were the
sole proximate cause of Cotton’s injuries and that Cotton failed
to prove that Kavan’s actions proximately caused the accident
are determinative of this appeal and without error. Accordingly,
we find no merit to this assignment of error.
This case is brought under the State Tort Claims Act. The
controlling provisions of § 81-8,215.01 provide:
(1) In case of death, injury, or property damage to any
innocent third party proximately caused by the action of
a law enforcement officer employed by the state during
796 	281 NEbRASKA REPORTS

vehicular pursuit, damages shall be paid to such third
party by the state employing the officer.
. . . .
(5) For purposes of this section, vehicular pursuit means
an active attempt by a law enforcement officer operating
a motor vehicle to apprehend one or more occupants
of another motor vehicle when the driver of the flee-
ing vehicle is or should be aware of such attempt and is
resisting apprehension by maintaining or increasing his or
her speed, ignoring the officer, or attempting to elude the
officer while driving at speeds in excess of those reason-
able and proper under the conditions.
[6] The quoted statutes essentially provide that the State is
liable for injuries to an innocent third party proximately caused
by a state law enforcement officer during a vehicular pursuit.
See Meyer v. State, 264 Neb. 545, 650 N.W.2d 459 (2002).
Statutes that purport to waive the protection of sovereign
immunity of the State or its subdivisions are strictly construed
in favor of the sovereign and against the waiver. Johnson v.
State, 270 Neb. 316, 700 N.W.2d 620 (2005).
The appellate courts of this State have decided numerous
cases under Neb. Rev. Stat. § 13-911 (Reissue 2007), which
is the comparable statute under the Political Subdivisions Tort
Claims Act, and we have previously indicated that we may
look to cases under both § 13-911 and § 81-8,215.01 in analyz-
ing law enforcement vehicular pursuit issues. See Staley v. City
of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006).
In Mid Century Ins. Co. v. City of Omaha, 242 Neb. 126,
494 N.W.2d 320 (1992), we reviewed the factual findings of
the trial court and affirmed the denial of recovery sought under
§ 13-911 based on the absence of proximate cause. In Lalley
v. City of Omaha, 266 Neb. 893, 670 N.W.2d 327 (2003), we
indicated that for liability to attach under § 81-8,215.01, the
actions of the law enforcement officer need to be merely a
proximate cause of the damages, not the sole proximate cause.
We apply the reasoning of these cases to the facts of the pres-
ent case.
[7] The court’s opinion is 17 pages in length. In its find-
ings of fact, the court describes competing testimony and even
COTTON v. STATE 	797
Cite as 281 Neb. 789

inconsistencies within testimony. In making the determination
as to factual questions, an appellate court does not reweigh
the evidence or resolve conflicts in the evidence, but, rather,
recognizes the trial court as the finder of fact and takes into
consideration that it observed the witnesses. State v. Vela, 279
Neb. 94, 777 N.W.2d 266 (2010). A district court’s findings of
fact in a proceeding under the State Tort Claims Act will not be
set aside unless such findings are clearly erroneous. Cingle v.
State, 277 Neb. 957, 766 N.W.2d 381 (2009). In a section enti-
tled “Resolution of Facts,” the court generally found Anson’s
testimony not to be credible, because “[b]y his own admission,
. . . Anson’s memory is far from exact, is blurred, and full of
gaps. He was under the influence of methamphetamine at the
time of the incident. Many of his statements are clearly rebut-
ted by the videotape and the weight of the evidence.”
The court heard testimony surrounding the accident and
found that Anson drove the Mustang “erratically, if not reck-
lessly.” The court elsewhere stated that Anson operated the
Mustang “in a reckless manner.” We cannot say these findings
are clearly erroneous. See Cingle v. State, supra. The court
logically concluded that “the accident was due solely” to
Anson’s conduct and that Cotton failed to prove that Kavan’s
actions were a proximate cause of her injuries. The court’s
findings and conclusions are supported by the record and
properly apply the principles enunciated in our jurisprudence
described above. The court’s proximate cause analysis was
not error.
In sum, we find no error in the district court’s determi-
nations that “the proximate cause of the accident was due
solely to the decision of . . . Anson to operate his vehicle in
a reckless manner” and that Cotton “has failed to prove that
. . . Trooper Kavan’s actions were a proximate cause of the
accident.” Even assuming without deciding that there was a
vehicular pursuit under § 81-8,215.01(5), the law enforce-
ment officer’s actions were not a proximate cause of Cotton’s
injuries and the court did not err when it entered judgment in
favor of the State.
798 	281 NEbRASKA REPORTS

CONCLUSION
We find no error in the evidentiary rulings challenged
on appeal. Further, the district court did not err when it
determined that, even if there had been a vehicular pursuit
under § 81-8,215.01(5), Kavan’s actions were not a proximate
cause of Cotton’s injuries. We affirm the district court’s order
entering judgment in favor of the State.
affirmeD.
AMERICAN NAT. bANK v. MEDVED 	799
Cite as 281 Neb. 799
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appellee anD CroSS-appellee , v. miCHael meDveD,
an inDiviDual , appellant, H igHWay leaSing, llC,
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appelleeS, anD laura meDveD,
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801 N.W.2d 230
Filed July 1, 2011. 	Nos. S-10-611, S-10-616.
1. Jurisdiction: States. When there are no factual disputes regarding state contacts,
conflict-of-law issues present questions of law.
2. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
3. Parties: Words and Phrases. An indispensable or necessary party to a suit is
one whose interest in the subject matter of the controversy is such that the con-
troversy cannot be finally adjudicated without affecting the indispensable party’s
interest, or which is such that not to address the interest of the indispensable party
would leave the controversy in such a condition that its final determination may
be wholly inconsistent with equity and good conscience.
4. Parties: Jurisdiction. If necessary parties to a proceeding are absent, the district
court has no jurisdiction to determine the controversy.
5. Contracts: Judgments: Merger. As a general rule, when a claim on a contract is
reduced to judgment, the contract between the parties is voluntarily surrendered
and canceled by merger in the judgment and ceases to exist.
6. Actions: Damages: Judgments: Merger. When a cause of action for the recov-
ery of money damages is merged in a valid and final judgment in favor of the
plaintiff, the cause of action is extinguished and a new cause of action on the
judgment is created.