McKinney v. Okoye

Carla MCK inney, appellant, v.
M atthias i. OKOye and
nebrasKa FOrensiC M ediCal
serviCes , p.C., appellees.
806 N.W.2d 571
Filed December 16, 2011. 	No. S-10-722.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a
district court’s grant of a motion to dismiss de novo, accepting all the allegations
in the complaint as true and drawing all reasonable inferences in favor of the
nonmoving party.
2. Libel and Slander. Whether a communication is privileged is a question of law.
3. Appeal and Error. An appellate court reviews questions of law independently of
the trial court’s decision.
4. Actions: Proof. A plaintiff in a malicious prosecution case must prove that pro-
ceedings were commenced or instituted against him or her, that the defendant
caused the proceedings to be commenced or instituted, that the proceedings
terminated in the plaintiff’s favor, that the defendant lacked probable cause to
institute or procure the proceedings, that the defendant acted with malice, and
that the plaintiff suffered damages.
5. Libel and Slander. An absolute privilege bars an action for libel or slander.
6. Libel and Slander: Liability: Immunity. Judges, attorneys, parties to proceed-
ings, witnesses, and jurors may assert an absolute privilege as an immunity from
liability for defamation for publications made during judicial proceedings if the
defamatory matter has some relation to the proceedings.
7. Libel and Slander. Absolute privilege applies to statements within a judicial
proceeding and statements preliminary or ancillary to judicial proceedings.
8. Criminal Law: Torts. At common law, a private citizen who initiated or pro-
cured a criminal prosecution can be sued for the tort of malicious prosecution.
9. Libel and Slander: Case Overruled. Absolute privilege does not bar an action
for malicious prosecution. To the extent that Central Ice Machine Co. v. Cole, 2
Neb. App. 282, 509 N.W.2d 229 (1993), holds otherwise, it is overruled.
Appeal from the District Court for Lancaster County: paul
d. M erritt, Jr ., Judge. Reversed and remanded for further
proceedings.
George H. Moyer, of Moyer & Moyer, for appellant.
James A. 	Snowden 	and 	Krista 	M. 	Carlson, 	of 	Wolfe,
Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.
heaviCan, C.J., Wright, COnnOlly, gerrard, MCCOrMaCK,
and M iller-lerMan, JJ.
880 	282 NebRASKA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

COnnOlly, J.
This appeal requires us to decide whether a person who gives
information to a prosecutor that results in a criminal prosecu-
tion against another has an absolute privilege from liability for
malicious prosecution.
Carla McKinney sued Matthias I. okoye, a pathologist,
and Nebraska Forensic Medical Services, P.C. (collectively
the appellees), for malicious prosecution. She alleged that
okoye had reported in an autopsy report that an infant under
McKinney’s care died of injuries from child abuse and that the
State charged McKinney with child abuse but later dropped
the charges. The district court granted the appellees’ motion
to dismiss McKinney’s complaint. It concluded that an abso-
lute privilege barred McKinney’s claim. We reach the oppo-
site conclusion; absolute privilege does not bar a claim for
malicious prosecution. We reverse, and remand for further
proceedings.
bACKGRoUND
McKinney alleges the following facts, which, given the pro-
cedural posture of the case, we accept as true.1
McKinney operated a daycare center in Lincoln, Nebraska.
on october 17, 2007, McKinney attempted to wake an infant
under her care. The infant was unresponsive, so McKinney
called the 911 emergency dispatch service. Paramedics were
unable to revive the infant, who was later pronounced dead.
okoye, who was working for Nebraska Forensic Medical
Services, conducted an autopsy on the infant. He reported to
prosecutors that the child had died from blunt force trauma to
the head, asphyxia, and hemorrhaging into the brain from child
abuse. McKinney alleges okoye acted maliciously and with-
out probable cause in reporting his findings. McKinney was
arrested and charged with felony child abuse.
Using 	the 	opinions 	of 	two 	other 	forensic 	pathologists,
McKinney eventually persuaded authorities to drop the charges
against her. Nevertheless, she claims that her name remains
on a child abuse registry, which prevents her from operating
1 See Dobrovolny v. Ford Motor Co., 281 Neb. 86, 793 N.W.2d 445 (2011).
MCKINNey v. oKoye 	881
Cite as 282 Neb. 880

a daycare. And she claims that the incident has greatly dimin-
ished her earning capacity.
Under Neb. Ct. R. Pldg. § 6-1112(b)(6), the appellees moved
to dismiss McKinney’s complaint. The district court granted
the appellees’ motion. The court concluded that McKinney
could not base an action for malicious prosecution on okoye’s
statements, because an absolute testimonial privilege shielded
them. The court went further, concluding that the privilege
shielded okoye’s statements from liability for any tort, and so
the court concluded that no amendment could cure McKinney’s
complaint.
ASSIGNMeNTS oF eRRoR
McKinney assigns that the district court erred in (1) apply-
ing the testimonial privilege to okoye’s report and (2) refusing
to allow McKinney to amend her complaint.
STANDARD oF ReVIeW
[1] An appellate court reviews a district court’s grant of
a motion to dismiss de novo, accepting all the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.2
[2,3] Whether a communication is privileged is a question
of law.3 An appellate court reviews questions of law indepen-
dently of the trial court’s decision.4
ANALySIS
absOlute privilege dOes nOt bar MCK inney’s
M aliCiOus prOseCutiOn C laiM
McKinney’s complaint is somewhat unclear as to whether
she is alleging a claim for defamation or malicious prosecu-
tion. The district court considered both. but before this court,
McKinney claims that she is asserting a claim only for mali-
cious prosecution. So we will address only that claim.
2 Id.
3 See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).
4 See id.
882 	282 NebRASKA RePoRTS

[4] The rules governing malicious prosecution are grounded
on competing public policies: A person who knows that a crime
has been committed should not be deterred from reporting it to
public officials out of fear of civil liability.5 Conversely, a per-
son wrongly charged with criminal conduct has an important
interest in his freedom and his reputation.6 A plaintiff in a mali-
cious prosecution case must prove that
• proceedings 	were 	commenced 	or 	instituted 	against 	him
or her;
• the defendant caused the proceedings to be commenced
or instituted;
• the proceedings terminated in the plaintiff’s favor;
• the defendant lacked probable cause to institute or procure
the proceedings;
• the defendant acted with malice; and
• the plaintiff suffered damages.7
Here, the appellees do not argue that McKinney has failed to
allege any of these elements. Instead, the appellees argue that
an absolute privilege bars McKinney’s claim.
[5-7] An absolute privilege bars an action for libel or slan-
der.8 Although referred to as a “privilege” because of historical
reasons, in reality, it is an immunity because it is based on the
speaker’s position or status.9 Absolute privilege recognizes the
necessity that certain persons, because of their special posi-
tion or status, should be as free as possible from fear that their
actions might have an adverse effect upon their own personal
5 See Kersenbrock v. Security State Bank, 120 Neb. 561, 234 N.W. 419
(1931). See, also, Bhatia v. Debek, 287 Conn. 397, 948 A.2d 1009
(2008).
6 See Bhatia, supra note 5.
7 See, Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d
511 (2001); Prokop v. Hoch, 258 Neb. 1009, 607 N.W.2d 535 (2000);
Johnson v. First Nat. Bank & Trust Co., 207 Neb. 521, 300 N.W.2d 10
(1980); Cimino v. Rosen, 193 Neb. 162, 225 N.W.2d 567 (1975); Schmidt
v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974);
Kersenbrock, supra note 5.
8 See Kocontes, supra note 3.
9 Restatement (Second) of Torts ch. 25, Title b, Introductory Note (1977).
MCKINNey v. oKoye 	883
Cite as 282 Neb. 880

interests.10 In defamation actions, we have, at least in part,
adopted the rule of absolute privilege from the Restatement
(Second) of Torts.11 Under the Restatement, judges,12 attor-
neys,13 parties to proceedings,14 witnesses,15 and jurors16 may
assert an absolute privilege as an immunity from liability for
defamation for publications made during judicial proceedings
if the defamatory matter has some relation to the proceedings.17
We have stated that this privilege applies to statements within
a judicial proceeding and statements preliminary or ancillary to
judicial proceedings.18
The absolute privilege rule appears in the Restatement as
a defense to defamation, injurious falsehood, and invasion of
privacy.19 At common law, absolute privilege was “an immu-
nity only against slander and libel actions.”20 before our deci-
sion in Kocontes v. McQuaid,21 this court had seldom, if ever,
extended absolute privilege beyond actions for defamation. but
in Kocontes, we stated that the privilege would bar a claim for
interference with a business expectancy.
While we have historically been reluctant to apply absolute
privilege to bar torts other than defamation, the Nebraska Court
10 Id.
11 See, e.g., Kocontes, supra note 3; Cummings v. Kirby, 216 Neb. 314, 343
N.W.2d 747 (1984).
12 Restatement, supra note 9, § 585.
13 Id., § 586.
14 Id., § 587.
15 Id., § 588.
16 Id., § 589.
17 See, e.g., Kocontes, supra note 3; Cummings, supra note 11; Beckenhauer
v. Predoehl, 215 Neb. 347, 338 N.W.2d 618 (1983).
18 See Kocontes, supra note 3. See, also, Restatement, supra note 9, § 586,
comment e.; § 587, comment e.; and § 588, comments b. and e.
19 See Restatement, supra note 9, §§ 588, 635, and 652F.
20 Kalina v. Fletcher, 522 U.S. 118, 133, 118 S. Ct. 502, 139 L. ed. 2d 471
(1997) (Scalia, J., concurring).
21 Kocontes, supra note 3.
884 	282 NebRASKA RePoRTS

of Appeals has applied it to bar other tort actions—including
malicious prosecution.22
In Central Ice Machine Co. v. Cole,23 the Court of Appeals
held that the absolute privilege barred claims for malicious
prosecution. In Cole, Central Ice Machine Company (Central
Ice) sued Ronald A. Cole for malicious prosecution for state-
ments he had made while consulting one of Central Ice’s cus-
tomers. Cole had told the customer that products the customer
had purchased from Central Ice were defective. Later, Cole
testified as an expert witness in a lawsuit between Central Ice
and the customer.
Central Ice later sued Cole for malicious prosecution, claim-
ing that Cole’s statements were the reason that its customer had
sued the company. The district court granted summary judg-
ment to Cole, finding that because he was an expert witness
in the later legal proceedings, he was immune from liability.
The Court of Appeals affirmed. The court noted that a witness
generally enjoyed an absolute immunity from civil liability for
his or her testimony. but the Court of Appeals refused to find
any distinction between statements Cole made as a consultant
and those he made as a witness. And the court refused to recog-
nize an exception to witness immunity for malicious prosecu-
tion claims.
In Cole, the underlying action that the defendant was alleged
to have instigated was civil, while here, the underlying action is
criminal. but this presents merely a difference in nomenclature,
not substantive elements. The elements for malicious prosecu-
tion—which deals with the wrongful institution of criminal
proceedings—and wrongful use of civil proceedings are essen-
tially identical.24 Further, while the Restatement assigns dif-
ferent names to the tort depending on whether the action that
22 See Central Ice Machine Co. v. Cole, 2 Neb. App. 282, 509 N.W.2d 229
(1993). See, also, Drew v. Davidson, 12 Neb. App. 69, 667 N.W.2d 560
(2003).
23 Cole, supra note 22.
24 Compare Prokop, supra note 7, and Schmidt, supra note 7. Compare
Restatement, supra note 9, § 653 with § 674.
MCKINNey v. oKoye 	885
Cite as 282 Neb. 880

the defendant instigated was civil or criminal, Nebraska courts
have not. We have referred to both causes of action as “mali-
cious prosecution.”25
[8] Upon further analysis, we conclude that Cole was incor-
rectly decided. This is because at common law, “[a] private citi-
zen who initiated or procured a criminal prosecution could (and
can still) be sued for the tort of malicious prosecution . . . .”26
Moreover, Cole is also inconsistent with both the Restatement
and this court’s case law. The Restatement makes clear that a
citizen can be liable for providing information to a public
prosecutor if the citizen knows the information is false or if
the citizen directed, requested, or pressured the prosecutor to
institute proceedings.27 We applied this rule in a case predating
Cole. There, we considered a malicious prosecution action
stemming from a report that a store security officer had given
prosecutors.28 but under Cole, no such case could proceed.
Absolute privilege would shield any statements an informant
made to a prosecutor, even if those statements were knowingly
false. extending the rule in Cole would cripple, if not kill, the
tort of malicious prosecution.29
Furthermore, because the elements of the tort are diffi-
cult to prove, it is unnecessary to grant informants absolute
privilege. “[T]here [is] a kind of qualified immunity built into
the elements of the tort.”30 Indeed, “all those who instigate
litigation are given partial protection by the rules that require
a plaintiff claiming malicious prosecution to show improper
purpose, a lack of probable cause for the suit or prosecution,
and other elements.”31 These elements effectively act as and
could be analogized to the defamation defense of qualified or
25 See, e.g., Prokop, supra note 7; Schmidt, supra note 7.
26 Kalina, supra note 20, 522 U.S. at 132 (Scalia, J., concurring).
27 See Restatement, supra note 9, § 653, comment g.
28 See Schmidt, supra note 7.
29 See Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007).
30 Kalina, supra note 20, 522 U.S. at 133 (Scalia, J., concurring).
31 Dan b. Dobbs, The Law of Torts § 429 at 1215 (2000).
886 	282 NebRASKA RePoRTS

conditional privilege, which protects speakers in certain situa-
tions, but is lost if the speaker abuses it.32
For example, merely reporting the details of the crime is
insufficient to establish liability if the reporting is made in
good faith. In Schmidt v. Richman Gordman, Inc.,33 we approv-
ingly cited an eighth Circuit decision that said that “‘a person
who supplies information to prosecuting authorities is not
liable for his action as long as any ensuing prosecution is left
entirely to the official’s discretion.’” To be liable for malicious
prosecution, a defendant must either knowingly give false or
misleading information or otherwise direct or counsel officials
in such a way as to actively persuade and induce the officer’s
decision.34
In addition, a plaintiff must prove the absence of probable
cause.35 We have previously said that lack of probable cause is
the gist of malicious prosecution.36 Finally, the plaintiff must
prove that the defendant acted with malice, which means that
the defendant initiated the proceedings primarily for a purpose
other than that of bringing an offender to justice.37 Summed
up, a plaintiff has a steep climb in prosecuting a malicious
prosecution action.
The dissenting opinion seemingly agrees that an absolute
privilege for a witness statement does not apply in this case.
Instead, it argues that okoye is shielded by the same privilege
that protects a prosecutor’s decision to prosecute. but this
misses the mark in several respects. okoye never raised an
agency theory of prosecutorial privilege. but even if he had not
waived that claim, it is without merit. It is true that in Koch v.
32 See Restatement, supra note 9, §§ 593, 599, and 600.
33 Schmidt, supra note 7, 191 Neb. at 351, 215 N.W.2d at 109, quoting White
v. Chicago, Burlington and Quincy Railroad, 417 F.2d 941 (8th Cir. 1969).
See, also, Jensen v. Barnett, 178 Neb. 429, 134 N.W.2d 53 (1965); Gering
v. Leyda, 91 Neb. 430, 136 N.W. 53 (1912).
34 See, Holmes, supra note 7; Johnson, supra note 7; Schmidt, supra note 7.
See, also, Restatement, supra note 9, § 653, comment g.
35 See, e.g., Rose v. Reinhart, 194 Neb. 478, 233 N.W.2d 302 (1975).
36 Id.; Jones v. Brockman, 190 Neb. 15, 205 N.W.2d 657 (1973).
37 Restatement, supra note 9, § 668.
MCKINNey v. oKoye 	887
Cite as 282 Neb. 880

Grimminger,38 we held that public prosecutors are entitled to a
qualified privilege in deciding whether to prosecute:
[A] public prosecutor, acting within the general scope of
his official authority in making a determination whether to
file a criminal prosecution, is exercising a quasi-judicial
and discretionary function and that where he acts in good
faith he is immune from suit for an erroneous or negligent
determination.
but the qualified privilege in Koch does not apply to communi-
cations made to a prosecutor that inform his or her decision to
prosecute. It is correct that county attorneys are charged with
coroner duties and with appointing a coroner’s physician. but
the powers and duties of coroners are not judicial,39 and the
dissent cites no authority conferring a privilege on a coroner’s
communications to a prosecutor. because a county attorney’s
prosecutorial and coroner duties represent separate functions,
a prosecutorial privilege cannot extend to a coroner through an
agency theory. Moreover, the dissent’s reasoning that a coroner
physician conducting an autopsy acts in tandem with a pros-
ecutor has disturbing implications. We reject any suggestion
that a pathologist’s findings during a criminal investigation
should not be completely independent from a prosecutor’s
decision to prosecute.
Finally, under the difficult-to-prove elements of a malicious
prosecution claim, good faith mistakes are already immunized
and will not render a defendant liable for malicious prosecu-
tion. As the Connecticut Supreme Court said:
These stringent requirements [of the tort] provide adequate
room for both appropriate incentives to report wrongdo-
ing and protection of the injured party’s interest in being
free from unwarranted litigation. Thus, because the tort
of [malicious prosecution] strikes the proper balance, it is
unnecessary to apply an additional layer of protection to
would-be litigants in the form of absolute immunity.40
38 Koch v. Grimminger, 192 Neb. 706, 714, 223 N.W.2d 833, 837 (1974)
(emphasis supplied).
39 State, ex rel. Crosby, v. Moorhead, 100 Neb. 298, 159 N.W. 412 (1916).
40 Rioux, supra note 29, 283 Conn. at 347, 927 A.2d at 310.
888 	282 NebRASKA RePoRTS

[9] We conclude that absolute privilege does not bar an
action for malicious prosecution. To the extent that Cole is
inconsistent with this opinion, we disapprove.
CoNCLUSIoN
We conclude that the district court erred in holding that an
absolute privilege barred McKinney’s malicious prosecution
action. We reverse, and remand for further proceedings consist-
ent with this opinion.
reversed and reManded FOr
Further prOCeedings.
stephan, J., not participating.
heaviCan, C.J., dissenting.
It is well established that
a public prosecutor, acting within the general scope of his
official authority in making a determination whether to
file a criminal prosecution, is exercising a quasi-judicial
and discretionary function and that where he acts in good
faith he is immune from suit for an erroneous or negligent
determination.1
This case presents the question of whether a pathologist,
appointed by the prosecutor in accordance with state law, is
entitled to that same immunity in connection with his offi-
cial duties. because I believe that such a physician should be
granted that immunity, I respectfully dissent from the decision
of the majority.
Under Nebraska law, one of the primary duties of the
county attorney in each Nebraska county is, of course, to act
as a prosecuting attorney against those accused of violating the
law.2 but the county attorney is also vested with all the duties
enjoined by law on the county coroner.3 And one of those
duties is the statutory requirement that the county attorney
appoint a coroner’s physician, a physician whose duties include
certifying the cause of death for each death in the county not
1 Koch v. Grimminger, 192 Neb. 706, 714, 223 N.W.2d 833, 837 (1974).
See, also, Restatement (Second) of Torts § 656 (1977).
2 Neb. Rev. Stat. § 23-1201 (Reissue 2007).
3 Neb. Rev. Stat. § 23-1210 (Reissue 2007).
MCKINNey v. oKoye 	889
Cite as 282 Neb. 880

otherwise attended by another physician and conducting an
autopsy when requested by the county coroner or when other-
wise required by law.4 In this case, where the death was that of
a minor and under suspicious circumstances, state law required
that an autopsy be performed.5
Here, okoye was appointed as required by and in accord-
ance with state law. He was vested with the duty to conduct an
autopsy in connection with the minor in the underlying case.
During the course of that autopsy, okoye was tasked with
attempting to establish, “by a reasonable degree of medical
certainty, the cause or causes of the death” and was further
required to “certify the cause or causes of death to the county
attorney.”6
Under the circumstances presented by this case, I would
find that in his role, okoye was acting in tandem with the
county attorney, who was ultimately responsible for bringing
any necessary criminal charges. I would find that the coroner’s
physician’s duties, like the duties of a prosecutor in the same
situation, are quasi-judicial in nature. As such, I would find
that okoye is entitled to the same immunity as enjoyed by the
county attorney.
4 Neb. Rev. Stat § 23-1820 (Reissue 2007).
5 Neb. Rev. Stat. § 23-1824(1) (Reissue 2007).
6 § 23-1824(2).
M elissa alsidez , speCial adMinistratOr OF the estate
OF anthOny alsidez , deCeased, and M elissa alsidez ,
individually, appellants , v. aMeriCan FaMily
Mutual insuranCe COMpany, appellee .
807 N.W.2d 184
Filed December 16, 2011. 	No. S-10-1220.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law.
890 	282 NebRASKA RePoRTS