Wilken v. City of Lexington

3. inmAn ’ s cLAim A gAinst methodist And physiciAns
Inman’s claims against Methodist and physicians were also
dismissed because summary judgment was granted to Dorheim,
Duckert, and Feuerstein. Inasmuch as we have reversed the sum-
mary judgment granted to Feuerstein, we also reverse the sum-
mary judgment granted to Methodist and physicians.
V. CONCLUsION
We affirm the district court’s grant of summary judgment to
Duckert. We reverse the district court’s grant of summary judg-
ment to Feuerstein, Methodist, and physicians.
A ffirmed in pArt , And in pArt reversed And
remAnded for further proceedings .
shAunA wiLKen , mother And next friend of cheyenne wiLKen
And wyAtt wiLKen , minor chiLdren , And J effery wiLKen ,
AppeLLAnts And cross -AppeLLees , v . city of L exington ,
A poLiticAL subdivision of the stAte of nebrAsKA,
AppeLLee And cross -AppeLLAnt .
754 N.W.2d 616
Filed July 1, 2008. 	No. A-07-553.
1. Summary Judgment. summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue as to any material fact 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Political Subdivisions Tort Claims Act: Negligence. A negligence action brought
under the political subdivisions Tort Claims Act has the same elements as a neg-
ligence action against a private individual, i.e., duty, breach of duty, causation,
and damages.
4. Negligence: Proximate Cause: Proof. To establish proximate cause, there are
three basic requirements. First, the negligence must be such that without it, the
injury would not have occurred, commonly known as the “but for” rule. second,
the injury must be the natural and probable result of the negligence. Third, there
can be no efficient intervening cause.
WILKEN v. CITY OF LEXINGTON 	817
Cite as 16 Neb. App. 817
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

5. Negligence: Proximate Cause: Words and Phrases. An efficient intervening
cause is new and independent conduct of a third person, which itself is a proximate
cause of the injury in question and breaks the causal connection between the origi-
nal conduct and the injury.
6. Negligence: Tort-feasors: Liability. An intervening act cuts off a tort-feasor’s
liability only when the intervening cause is not foreseeable.
7. Negligence: Proximate Cause. It may be stated as a general rule that when,
between original negligence and an accident, there intervenes a willful, malicious,
and criminal act of a third person which causes the injury but was not intended by
the person originally negligent and could not have been foreseen by him, the causal
chain between the original negligence and the accident is broken.
8. ____: ____. The causal connection is broken if, between the defendant’s negligent
act and the plaintiff’s injury, there has intervened the negligence of a third person
who had full control of the situation and whose negligence was such as the defend-
ant was not bound to anticipate and could not be said to have contemplated, which
later negligence resulted directly in the injury to the plaintiff.
9. ____: ____. The act of a third person in committing an intentional tort or crime is
a superseding cause of harm to another resulting therefrom, although the actor’s
negligent conduct created a situation which afforded an opportunity to the third
person to commit such a tort or crime, unless the actor at the time of his negligent
conduct realized or should have realized the likelihood that such a situation might
be created, and that a third person might avail himself of the opportunity to commit
such a tort or crime.
10. Negligence: Liability. Once it is shown that a defendant had a duty to anticipate
an intervening criminal act and guard against it, the criminal act cannot supersede
the defendant’s liability.
11. Police Officers and Sheriffs: Probation and Parole: Liability. Law enforcement
officials, including supervising probation officers and, consequently, state and local
governments, generally may not be held liable for failure to protect individual citi-
zens from harm caused by criminal conduct.
12. Police Officers and Sheriffs: Liability. There are situations that provide excep-
tions to the no-duty rule: (1) where individuals who have aided law enforcement as
informers or witnesses are to be protected or (2) where the police have expressly
promised to protect specific individuals from precise harm.
13. Negligence. There is no duty to control the conduct of a third person so as to pre-
vent him from causing physical harm to another unless (1) a special relation exists
between the actor and the third person which imposes a duty upon the actor to
control the third person’s conduct or (2) a special relation exists between the actor
and the other which gives to the other a right to protection.
14. ____. One who takes charge of a third person whom he knows or should know to
be likely to cause bodily harm to others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent him from doing such harm.
15. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the controversy before it.
Appeal from the District Court for Dawson County: JAmes e.
doyLe iv, Judge. Affirmed.
818 	16 NEBRAsKA AppELLATE REpORTs

Maren Lynn Chaloupka and Robert paul Chaloupka, of
Chaloupka, holyoke, hofmeister, snyder & Chaloupka, for
appellants.
Thomas J. Culhane and Jason R. Yungtum, of Erickson &
sederstrom, p.C., for appellee.
sievers , moore, and cAsseL, Judges.
moore, Judge.
INTRODUCTION
shauna Wilken, mother and next friend of the minor chil-
dren, Cheyenne Wilken and Wyatt Wilken, and Jeffery Wilken
(Wilken) brought a negligence action against the City of
Lexington, Nebraska (City), in the district court for Dawson
County. The district court granted summary judgment in favor
of the City. shauna and Wilken (hereinafter the Appellants)
appeal, and the City cross-appeals. Because the court did not err
in finding an efficient intervening cause cutting off any liability
on the part of the City for the injuries to Wilken, Cheyenne, and
Wyatt, we affirm the order granting the City’s motion for sum-
mary judgment.
BACKGROUND
On October 4, 2004, the Buffalo County sheriff’s office
received a report of a missing juvenile, W.V., who resided in
Elm Creek, Nebraska, and was reported missing by her mother.
The Lexington police Department received the missing person
report the day it was issued.
On October 5, 2004, Kenneth schumacher, an investigator
with the Lexington police Department, received a report from
an acquaintance that the acquaintance’s son had brought home
an unknown young girl. schumacher went to the acquaintance’s
home in Lexington, where he met a female juvenile who iden-
tified herself as W.V. schumacher asked W.V. to come with
him to the police department. W.V. left the house, walked
to schumacher’s vehicle, and rode with schumacher to the
police station without any restraints such as handcuffs. Nor did
schumacher control W.V. by holding on to her.
When schumacher and W.V. arrived at the police station, W.V.
got out of the vehicle, walked into the station, and accompanied
WILKEN v. CITY OF LEXINGTON 	819
Cite as 16 Neb. App. 817

schumacher to his office without any restraints or resistance.
schumacher interviewed W.V. in his office without incident.
schumacher telephoned the Buffalo County sheriff’s office,
learned additional information about W.V., determined that she
was the missing juvenile, and arranged for delivery of W.V. to
the Buffalo County sheriff’s office, all while W.V. was unre-
strained in his office.
schumacher and Buffalo County Deputy sheriff Katherine
Tvrdik arranged to meet near the county line in Overton,
Nebraska, to allow Tvrdik to pick up W.V. and return her
to 	Buffalo 	County 	authorities. 	shortly 	after 	making 	these
arrangements, schumacher and W.V. left the Lexington police
Department, walked to schumacher’s vehicle, and began the
drive to Overton. W.V.’s entry into schumacher’s vehicle and
the trip to Overton were completed without incident. At no
time during the trip was W.V. restrained, and she made no
effort to flee or resist schumacher in his efforts to return her to
Buffalo County.
During the time schumacher and W.V. were together on
October 5, 2004, W.V. advised schumacher that she had run
away from home and that she had taken a vehicle from Elm
Creek the previous day that was not hers, but that she believed
she was authorized to drive it. W.V. also told schumacher that
she had used methamphetamine in the preceding year and had
used it during the 24 hours preceding her apprehension by
schumacher. According to schumacher, W.V. did not appear
to be under the influence of any substance, including metham-
phetamine, despite her disclosure. schumacher also learned that
W.V. had been involved in an argument and possibly a fistfight
with another girl at her school on the previous day.
Upon reaching Overton, schumacher parked his car at a
gas station to wait for Tvrdik. W.V. was seated in the front
passenger seat of schumacher’s vehicle and was unrestrained
except for the seatbelt that she had worn during the trip. When
Tvrdik arrived, schumacher told W.V. to leave the car, and he
watched while she unbuckled her seatbelt and began to open the
passenger-side door. schumacher then got out of the vehicle,
leaving the key in the ignition and the engine running, and he
walked to the vehicle driven by Tvrdik.
820 	16 NEBRAsKA AppELLATE REpORTs

As schumacher was handing a written report to Tvrdik, W.V.
climbed behind the steering wheel of schumacher’s vehicle and
drove off at a high rate of speed. schumacher got into Tvrdik’s
vehicle, and Tvrdik began a pursuit of W.V. The pursuit was
terminated before W.V. was apprehended, due to public safety
concerns. At all relevant times, schumacher was on duty as
an investigator for the City and the car driven initially by
schumacher and then taken by W.V. was owned and maintained
as a police vehicle by the City.
After taking schumacher’s vehicle, W.V. returned to Lexington
and picked up E.G., also a juvenile. W.V. and E.G. drove to
Cozad, Nebraska, stealing another vehicle and subsequently
abandoning schumacher’s vehicle. schumacher’s vehicle was
recovered on October 6, 2004, outside of Lexington, where it
had been abandoned by W.V. and E.G. W.V. and E.G. took vari-
ous items from schumacher’s vehicle, including a loaded police-
issued shotgun which was in the trunk of the vehicle.
W.V. and E.G.’s next encounter with law enforcement officials
occurred on October 6, 2004, when a Nebraska state patrol offi-
cer spotted them in the vehicle stolen from Cozad and attempted
to stop them. E.G. was driving, and when E.G. stopped the vehi-
cle, W.V. got out and used the shotgun taken from schumacher’s
vehicle to shoot at the patrol officer. After escaping from the
patrol officer, W.V. and E.G. abandoned the vehicle stolen from
Cozad and stole a third vehicle.
On October 7, 2004, W.V. and E.G. were seen in holdrege,
Nebraska, and officers from various law enforcement agencies
began a pursuit of W.V. and E.G. in phelps County, Nebraska.
The law enforcement officers pursued W.V. and E.G. on phelps
County Road 748, at which time the stolen vehicle encountered
a pickup truck being driven in the opposite direction by Wilken.
In the rear seat of Wilken’s pickup were his two children,
Cheyenne and Wyatt. As the stolen vehicle approached Wilken’s
pickup, E.G., using the shotgun and ammunition stolen from
the trunk of schumacher’s vehicle, fired a shot at the pickup.
The shot hit the rear side window of the pickup, shattering the
glass. Cheyenne and Wyatt sustained physical injuries. Later on
October 7, the pursuit of W.V. and E.G. concluded at a different
location, at which time W.V. and E.G. were apprehended.
WILKEN v. CITY OF LEXINGTON 	821
Cite as 16 Neb. App. 817

On October 21, 2005, the Appellants filed a complaint against
the City under Nebraska’s political subdivisions Tort Claims
Act. The Appellants alleged that Cheyenne and Wyatt sustained
physical and mental injuries and that Wilken sustained mental
injuries, all of which were proximately caused by the City’s
negligence. specifically, the Appellants alleged that the City was
negligent in that (1) schumacher left an unrestrained prisoner
and a loaded shotgun in his running vehicle, while he exited the
vehicle to visit with another person, and failed to take reason-
able measures to prevent W.V. from absconding with his vehicle
and weapon and (2) the City negligently supervised schumacher
during the course of his employment. The Appellants sought
compensatory damages for past and future medical expenditures,
psychiatric treatment, and pain and suffering in an amount to be
proved at trial.
On March 15, 2007, the City filed a motion for summary
judgment. On March 21, the Appellants filed a motion for partial
summary judgment seeking summary judgment on the issue of
the City’s negligence.
After a hearing on the parties’ summary judgment motions,
the district court entered an order on May 11, 2007, overruling
the Appellants’ motion for partial summary judgment and grant-
ing summary judgment in favor of the City. The court observed
that the reported cases in Nebraska addressing the issue of
foreseeability and proximate cause in the context of the actions
of a third party typically involve the actions of a third party with
whom the allegedly negligent party had some contact or a rela-
tionship. The court noted that in this case, the third party whose
act caused the injury, E.G., is in reality a “‘fourth party’” who
had no direct contact with the City, the alleged negligent party.
The court observed that E.G. used resources from the “third
party,” W.V., to injure Wilken, Cheyenne, and Wyatt and that
those resources were obtained by W.V. by virtue of the alleged
negligence of the City.
In considering the question of the City’s duty, the district
court found no genuine issue of material fact that the Lexington
police Department had taken control of W.V. and that W.V. was
a person who schumacher knew or should have known was
likely to cause bodily harm to others if she was not controlled.
822 	16 NEBRAsKA AppELLATE REpORTs

The court concluded that the evidence established that a “‘spe-
cial relationship’” existed between the City and W.V., which
imposed a duty upon the City to control W.V.’s conduct. The
court further concluded that there was no genuine issue of mate-
rial fact that schumacher did not control W.V.’s conduct and that
because of his failure, W.V. stole his vehicle and its contents.
The court found that W.V.’s actions in stealing schumacher’s
vehicle were reasonably foreseeable.
The district court next considered proximate causation and
found no genuine issue of material fact that the injuries suffered
by Wilken, Cheyenne, and Wyatt were caused by E.G.’s dis-
charge of the shotgun. The court concluded that E.G.’s actions
were a new, independent force, which intervened between the
City’s negligent act and the injuries to Wilken, Cheyenne, and
Wyatt. The court observed that E.G. had full control of the situ-
ation and that it was his conduct which resulted directly in the
injuries. The court found that the City could not have reason-
ably anticipated or contemplated E.G.’s conduct, reasoning that
E.G., his propensities, his dangerousness, and any relationship
between him and W.V. were unknown to the City.
The court explained its reasoning regarding the finding of an
efficient intervening cause further as follows:
The court can find no Nebraska cases which required an
actor to foresee and avoid the intentional criminal acts of a
fourth party whose criminal acts were committed with the
assistance of a third party with whom the actor had a “spe-
cial relationship.” The firing of the shotgun by [E.G.] during
the chase of [E.G.] and [W.V.] in phelps County, Nebraska,
two days after the initial contact between [schumacher]
and [W.V.], broke the causal connection between the origi-
nal conduct of [schumacher] and the injuries suffered by
[Wilken, Cheyenne, and Wyatt].
While it can be argued that the City . . . had a duty
to anticipate that the theft of one of its police vehicles
containing a shotgun and ammunition could create the
potential for dangerous circumstances and situations, such
a result is not a natural “and probable” result. Crimes with
shotguns can and do occur in a variety of settings and
the fact that an additional shotgun became available to a
WILKEN v. CITY OF LEXINGTON 	823
Cite as 16 Neb. App. 817

person disposed as was [E.G.], does not support the impo-
sition of liability for the unlawful use of the stolen shotgun.
The facts alleged by the [Appellants] and those established
by [the evidence at the summary judgment hearing] do not
present the type of knowledge on the part of the City . . .
which would render the criminal conduct of an unknown
person such as [E.G.] reasonably foreseeable.
The criminal acts of [E.G.] were an efficient intervening
cause which destroys any claim that the alleged negligence
of the City . . . was the proximate cause of the . . . injuries
and damages.
(Emphasis in original.)
AssIGNMENTs OF ERROR
The Appellants assert that the district court erred in granting
the City’s motion for summary judgment.
On cross-appeal, the City asserts that the district court erred
in finding (1) that a special relationship existed between the City
and W.V. such that the City had a duty to control W.V.’s conduct,
(2) that schumacher failed to control W.V. and consequently
breached his duty, and (3) that it was foreseeable that W.V.
would steal schumacher’s vehicle.
sTANDARD OF REVIEW
[1] summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact 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. Heinze v. Heinze, 274 Neb. 595,
742 N.W.2d 465 (2007).
[2] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of
all reasonable inferences deducible from the evidence. Eastlick
v. Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628 (2007).
ANALYsIs
Efficient Intervening Cause.
[3] The Appellants assert that the district court erred in grant-
ing the City’s motion for summary judgment. specifically, they
824 	16 NEBRAsKA AppELLATE REpORTs

argue that the court erred in determining that E.G.’s actions
amounted to an efficient intervening cause, cutting off the City’s
liability for any negligence. A negligence action brought under
the political subdivisions Tort Claims Act has the same elements
as a negligence action against a private individual, i.e., duty,
breach of duty, causation, and damages. Doe v. Omaha Pub. Sch.
Dist., 273 Neb. 79, 727 N.W.2d 447 (2007). The question of
causation, specifically, whether there was an efficient interven-
ing cause cutting off the City’s liability for any negligence, is at
issue in the present appeal.
[4-6] The district court found that the Lexington police
Department had taken control over W.V., creating a special rela-
tionship and imposing a duty to control her conduct. however,
the court found that the intervening intentional criminal conduct
of E.G. was not foreseeable and was thus an efficient interven-
ing cause, breaking any causal connection between the City’s
breach of its duty to control W.V. and the injuries to Wilken,
Cheyenne, and Wyatt. To establish proximate cause, there are
three basic requirements. First, the negligence must be such
that without it, the injury would not have occurred, commonly
known as the “but for” rule. second, the injury must be the
natural and probable result of the negligence. Third, there can
be no efficient intervening cause. Malolepszy v. State, 273 Neb.
313, 729 N.W.2d 669 (2007). An efficient intervening cause is
new and independent conduct of a third person, which itself
is a proximate cause of the injury in question and breaks the
causal connection between the original conduct and the injury.
Id. An intervening act cuts off a tort-feasor’s liability only when
the intervening cause is not foreseeable. Willet v. County of
Lancaster, 271 Neb. 570, 713 N.W.2d 483 (2006).
[7-9] It may be stated as a general rule that when, between
original negligence and an accident, there intervenes a willful,
malicious, and criminal act of a third person which causes the
injury but was not intended by the person originally negligent
and could not have been foreseen by him, the causal chain
between the original negligence and the accident is broken.
Shelton v. Board of Regents, 211 Neb. 820, 320 N.W.2d 748
(1982). The Nebraska supreme Court has stated that the causal
connection is broken if, between the defendant’s negligent act
WILKEN v. CITY OF LEXINGTON 	825
Cite as 16 Neb. App. 817

and the plaintiff’s injury, there has intervened the negligence of
a third person who had full control of the situation and whose
negligence was such as the defendant was not bound to antici-
pate and could not be said to have contemplated, which later
negligence resulted directly in the injury to the plaintiff. Id. The
act of a third person in committing an intentional tort or crime
is a superseding cause of harm to another resulting therefrom,
although the actor’s negligent conduct created a situation which
afforded an opportunity to the third person to commit such a tort
or crime, unless the actor at the time of his negligent conduct
realized or should have realized the likelihood that such a situa-
tion might be created, and that a third person might avail himself
of the opportunity to commit such a tort or crime. Id.
In Shelton, an employee with a criminal background stole poi-
son from his employer. The employee then broke into the homes
of several people and placed the poison in beverages found in
their homes. several individuals were poisoned as a result, and
some died. The injured parties sued the employer, alleging it was
negligent in failing to discover the employee’s criminal back-
ground and allowing him access to the poison. The Nebraska
supreme Court determined that the employee’s criminal actions
of stealing the poison, breaking into the homes, and poisoning
the victims were the proximate cause of the appellants’ injuries.
The court observed that none of the employer’s alleged failures
was related in any way to those acts and that those acts could not
have been reasonably contemplated by the employer. The court
determined that because the employee’s past criminal history did
not involve theft or poisoning, even if the employer had learned
of the criminal history, the employee’s action still would not
have been foreseeable.
[10] In Shelton, the supreme Court found an efficient inter-
vening cause where the alleged negligence was indirect and
distant from the perpetration of the criminal act. In contrast,
in Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 248
Neb. 651, 538 N.W.2d 732 (1995), the court found no efficient
intervening cause where the defendant’s alleged negligence has
a direct connection with and effect on the criminal acts that fol-
lowed. In Anderson/Couvillon, sexual assaults committed by a
foster child were found not to be an efficient intervening cause
826 	16 NEBRAsKA AppELLATE REpORTs

between negligence on the part of the state and the injuries of
the girls assaulted by the foster child. Because the state had
knowledge of the foster child’s violent propensities and potential
for becoming a sexual abuser, the supreme Court determined
that the state could have anticipated or contemplated the foster
child’s attacks on the girls who were frequently in the home of
the foster parents. Accordingly, the state had a duty to disclose,
upon direct questioning by the girls’ mother, those portions
of the foster child’s history that would create a danger to the
girls. The court observed that once it is shown that a defendant
had a duty to anticipate an intervening criminal act and guard
against it, the criminal act cannot supersede the defendant’s
liability. Id.
In the present case, E.G.’s criminal act was the proximate
cause of any injuries to Wilken, Cheyenne, and Wyatt. The record
does not show that the City had any knowledge about E.G., his
propensity for violence or crime, or any connection he may
have had with W.V. prior to the events in question. Thus, E.G.’s
actions were not such that the City should have anticipated them.
E.G.’s actions were therefore a superseding cause.
[11-14] Law enforcement officials, including supervising
probation officers and, consequently, state and local govern-
ments, generally may not be held liable for failure to protect
individual citizens from harm caused by criminal conduct.
Bartunek v. State, 266 Neb. 454, 666 N.W.2d 435 (2003). There
are situations that provide exceptions to the no-duty rule: (1)
where individuals who have aided law enforcement as informers
or witnesses are to be protected or (2) where the police have
expressly promised to protect specific individuals from precise
harm. Brandon v. County of Richardson, 252 Neb. 839, 566
N.W.2d 776 (1997). There is no duty to control the conduct
of a third person so as to prevent him from causing physical
harm to another unless (1) a special relation exists between the
actor and the third person which imposes a duty upon the actor
to control the third person’s conduct or (2) a special relation
exists between the actor and the other which gives to the other
a right to protection. Bartunek, supra. One who takes charge of
a third person whom he knows or should know to be likely to
cause bodily harm to others if not controlled is under a duty to
WILKEN v. CITY OF LEXINGTON 	827
Cite as 16 Neb. App. 817

exercise reasonable care to control the third person to prevent
him from doing such harm. Id.
The record does not show that the Appellants were informants
or witnesses such that they needed to be protected; nor does the
record reveal any express promise on the part of the City to pro-
tect the Appellants from precise harm. Further, there is nothing
in the record to show a special relationship, or even any relation-
ship, between the City and E.G. such that the City had a duty to
control his conduct and prevent him from causing physical harm
to another person. Finally, there is no evidence in the record of
any special relationship between the City and the Appellants
which would establish a duty by the City to specifically protect
the Appellants from criminal action.
Viewing the evidence in the light most favorable to the
Appellants and giving them the benefit of all reasonable infer-
ences deducible from the evidence, as we must, we find no error
in the district court’s determination that the actions of E.G.
were not foreseeable and were an efficient intervening cause,
breaking the causal connection between the City’s conduct
and the injuries to Wilken, Cheyenne, and Wyatt. see Eastlick
v. Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628 (2007).
Accordingly, we affirm the court’s grant of summary judgment
in the City’s favor.
City’s Cross-Appeal.
[15] Given our resolution of the above assignment of error,
we need not address the City’s assignments of error on cross-
appeal. An appellate court is not obligated to engage in an anal-
ysis which is not needed to adjudicate the controversy before
it. Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb.
214, 739 N.W.2d 162 (2007).
CONCLUsION
The district court did not err in granting the City’s motion for
summary judgment.
A ffirmed .
828 	16 NEBRAsKA AppELLATE REpORTs