Werner v. County of Platte

WERNER v. COUNTY OF PLATTE 	899
Cite as 284 Neb. 899
Brian J. Werner, appellee, v. C ounty of platte,
neBraska, a politiCal suBdivision of the
state of neBraska, appellant.
824 N.W.2d 38
Filed December 21, 2012. 	No. S-12-202.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
2. Trial: Depositions. Neb. Rev. Stat. § 29-1917(4) (Reissue 2008) restricts a depo-
sition’s use at the criminal trial for which the deposition was taken, and not in a
separate civil action.
3. Rules of Evidence: Hearsay. Excited utterances are admissible because a
startling event may produce statements that are reliable, in that they are free of
conscious fabrication.
4. ____: ____. For a statement to qualify as an excited utterance, (1) there must
have been a startling event, (2) the statement must relate to the event, and (3)
the statement must have been made by the declarant while under the stress of the
event. The key requirement is spontaneity, which requires a showing the state-
ments were made without time for conscious reflection.
5. ____: ____. Whether a party made his or her statements in response to question-
ing is relevant to whether those statements were spontaneous. But the focus in
determining whether they constitute an excited utterance must be on whether the
party made the statements without conscious reflection.
6. ____: ____. For hearsay within hearsay to be admissible, each layer of hearsay
must have an applicable exception to the hearsay rule.
7. Hearsay: Words and Phrases. Verbal acts are not hearsay, because their signifi-
cance rests on the simple fact that the words were said, regardless of their truth.
8. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion
of evidence is not reversible error unless it unfairly prejudiced a substantial right
of the complaining party.
9. ____: ____: ____. The erroneous admission of evidence is not reversible error if
the evidence is cumulative and other relevant evidence, properly admitted, sup-
ports the finding by the trier of fact.
10. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
under the Political Subdivisions Tort Claims Act, an appellate court will not dis-
turb the trial court’s factual findings on appeal unless they are clearly wrong.
11. 	Judgments: Appeal and Error. When determining the sufficiency of the evi-
dence to sustain the trial court’s judgment, it must be considered in the light most
favorable to the successful party; every controverted fact must be resolved in
favor of such party, and it is entitled to the benefit of every inference that can be
deduced from the evidence.
12. ____: ____. When reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion reached by the
trial court.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

900 	284 NEBRASKA REPORTS
13. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs: Motor
Vehicles: Strict Liability. Under Neb. Rev. Stat. § 13-911 (Reissue 2012), a
political subdivision is strictly liable for injuries to an “innocent third party” dur-
ing a vehicular pursuit, regardless whether the law enforcement officer’s actions
were otherwise proper or even necessary.
14. Police Officers and Sheriffs: Motor Vehicles: Words and Phrases. An “inno-
cent third party” under Neb. Rev. Stat. § 13-911 (Reissue 2012) is one who has
not promoted, provoked, or persuaded the driver to engage in flight from law
enforcement personnel and one who is not sought to be apprehended in the flee-
ing vehicle.
15. Police Officers and Sheriffs: Motor Vehicles. Whether law enforcement sought
to apprehend an individual under Neb. Rev. Stat. § 13-911 (Reissue 2012) is a
mixed question of law and fact.
16. ____: ____. Whether an individual promoted, provoked, or persuaded a driver to
flee under Neb. Rev. Stat. § 13-911 (Reissue 2012) is a question of fact.
17. Trial: Witnesses: Testimony. Witness credibility and the weight to be given a
witness’ testimony are questions for the trier of fact.
18. Political Subdivisions Tort Claims Act: Words and Phrases. Under Neb. Rev.
Stat. § 13-911 (Reissue 2012), the phrase “innocent third party” is a term of art,
and the ordinary meaning of “innocent” does not apply.
19. Political Subdivisions Tort Claims Act: Police Officers and Sheriffs: Motor
Vehicles: Legislature: Intent: Words and Phrases. By its use of the phrase
“innocent third party” in Neb. Rev. Stat. § 13-911 (Reissue 2012), the Legislature
was concerned with actions of the third party as those actions may relate to the
flight of the driver sought to be apprehended. Simply put, a third party is “inno-
cent” if he or she played no role in causing the law enforcement pursuit.
20. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When an
appellate court has judicially construed a statute and that construction has not
evoked an amendment, there is a presumption that the Legislature has acquiesced
in the court’s determination of the Legislature’s intent.
21. Statutes: Appeal and Error. Statutory interpretation presents a question of law.
When reviewing questions of law, an appellate court resolves the questions inde-
pendently of the conclusions reached by the trial court.
22. Statutes: Words and Phrases: Appeal and Error. An appellate court attempts
to give effect to each word or phrase in a statute and ordinarily will not read
language out of a statute.
Appeal from the District Court for Platte County: roBert r.
steinke, Judge. Affirmed.
Vincent Valentino for appellant.
William M. Lamson, Jr., and Cathy S. Trent-Vilim, of
Lamson, Dugan & Murray, L.L.P., and Thomas M. Fehringer,
of Fehringer & Mielak, L.L.P., for appellee.

WERNER v. COUNTY OF PLATTE 	901
Cite as 284 Neb. 899
heaviCan, C.J., Wright, C onnolly, stephan, MCC orMaCk,
M iller-lerMan, and Cassel, JJ.
C onnolly, J.
i. SUMMARY
Brian J. Werner sued the County of Platte (County) under
Neb. Rev. Stat. § 13-911 (Reissue 2012) for injuries he sus-
tained during a vehicular pursuit by a law enforcement officer.
Werner was a passenger in the car that the officer was pursu-
ing. Section 13-911 authorizes compensation for damages to
an “innocent third party” who is injured by such a pursuit.
The primary issues are whether the district court properly (1)
admitted testimony over the County’s hearsay objections, (2)
found Werner to be an “innocent third party,” and (3) calcu-
lated the damages for which the County was liable.
For the most part, we conclude that the court did not err in
its evidentiary rulings, either because the testimony qualified
under an exception to the hearsay rule or because it was not
hearsay. What error we did find, we conclude, did not unfairly
prejudice a substantial right of the County. Both the law and
the record support the court’s finding that Werner was an
“innocent third party.” And we conclude that the court properly
calculated the County’s liability under the relevant statutes.
We affirm.
II. BACKGROUND
In October 2008, Werner went to a bar in Humphrey,
Nebraska. Werner testified that as he was walking home, he
saw Joey Korth in his car and Korth asked Werner to get in.
The weekend before, Korth had gotten in a fight with one of
Werner’s friends, and Korth wanted to explain to Werner what
had happened. After Werner got in the car, the two of them
headed toward Lindsay, Nebraska.
At trial, the parties contested who was driving, Korth or
Werner. The court found that Korth was the driver. The admis-
sibility of some of the evidence the court relied on in making
that finding is at issue. But as we explain in detail later, either
the court properly admitted the evidence it relied upon or its
erroneous admission did not unfairly prejudice a substantial

902 	284 NEBRASKA REPORTS
right of the County. Because the record supports the court’s
factual determination, it was not clearly wrong. So we refer to
Korth as “the driver.”
1. the pursuit and aCCident
As Korth drove, he and Werner talked and drank some
beers. They eventually headed back toward Humphrey on
Highway 91. At about 2 a.m., Deputy Sheriff Ed Wemhoff
was patrolling Highway 91 and spotted Korth’s car traveling
well above the posted 60-m.p.h. speed limit. Wemhoff acti-
vated his radar and clocked the car at 76 m.p.h. He caught
up to the car and saw it weaving in and out of its lane. So
in addition to the driver’s speeding, Wemhoff also suspected
the driver was driving under the influence. He then activated
his overhead lights and signaled the car to pull over. At that
point, Wemhoff had not seen anyone inside the car because it
was dark out.
Korth activated his right-hand turn signal and started to
pull over. Korth then turned off the turn signal and proceeded
toward a nearby intersection. Wemhoff believed that Korth was
going to pull over at the intersection. But then Korth turned at
the intersection and sped off. Wemhoff pursued.
About 11⁄2 miles north of Highway 91, the road changed
from blacktop to gravel. Wemhoff came across skid marks in
the gravel, which led him to believe there had been an acci-
dent. Later investigation revealed that when Korth’s car hit the
gravel road—traveling at about 110 m.p.h.—he lost control and
the car flipped end over end into an adjacent cornfield.
Wemhoff notified dispatch of the accident, requested emer-
gency assistance, and got out to search the area. Wemhoff
heard someone in the cornfield, followed the sounds, and found
Werner lying on the ground. Wemhoff began asking Werner
questions, just to keep him talking. Werner answered the ques-
tions, but his answers varied and indicated that he was dazed
and confused. Wemhoff focused his questions on whether
Werner had been alone in the car. By that time, other law
enforcement and emergency personnel had arrived. Eventually,
another law enforcement officer found Korth’s wallet, which
led to Korth’s discovery in the cornfield. Korth made no

WERNER v. COUNTY OF PLATTE 	903
Cite as 284 Neb. 899
statements at the scene of the accident or during trial; his inju-
ries apparently left him in a coma.
One of the emergency personnel that arrived on scene was
Brian Rosno, a volunteer fire and rescue member. Rosno
attended to Werner. Rosno described Werner as being in a lot
of pain, moaning and screaming, and as somewhat coherent.
At one point, Rosno heard Werner make statements that Korth
“was going way too fast” and that Werner had asked Korth “to
let him out.” At trial, the County objected to Rosno’s testimony
relating these statements on several grounds, including hearsay.
The court overruled the objections and admitted Rosno’s testi-
mony. In administering aid to Werner, Rosno also found meth-
amphetamine and two drug pipes on his person, and he turned
those over to law enforcement.
Trooper William Fitzgerald, of the Nebraska State Patrol,
went to the hospital to obtain a blood draw from Werner.
Fitzgerald testified that he asked Werner who had been driving
the car and that Werner said Korth was the driver. Fitzgerald
also testified Werner estimated that the car had been traveling
120 m.p.h. and said that he had asked Korth to let him out of
the car. At trial, the County objected to Fitzgerald’s testimony
as hearsay and on other grounds. The court overruled the
objections and admitted Fitzgerald’s testimony.
2. the trial and JudgMent
The accident rendered Werner a paraplegic. Werner sued the
County under § 13-911. Werner alleged that the County was
strictly liable for his injuries because they were caused by law
enforcement’s pursuit of the car and Werner was an “innocent
third party” under the statute.
Several 	individuals 	testified 	at 	the 	bench 	trial. 	These
included, among others, Wemhoff, Rosno, and Fitzgerald. An
accident reconstructionist from the Nebraska State Patrol also
testified. Werner testified that he did not encourage Korth to
flee from law enforcement and that he had asked Korth to
let him out of the car. Werner explained that he had “heard”
that Korth had previously fled from law enforcement, that
“nothing good was going to come” from being in the car,
and that “it just was not going to end good.” The County

904 	284 NEBRASKA REPORTS
objected on hearsay grounds to Werner’s testimony about
having “heard” of Korth’s prior history of fleeing from law
enforcement. The court overruled the objection and admitted
Werner’s testimony.
The court found for Werner. It found that law enforcement
had engaged in a “vehicular pursuit” of Korth’s car and that the
pursuit was a proximate cause of Werner’s injuries. The court
also found that under § 13-911, Werner was an “innocent third
party.” We have defined an “innocent third party” as “one who
has not promoted, provoked, or persuaded the driver to engage
in flight from law enforcement personnel and one who is not
sought to be apprehended in the fleeing vehicle.”1 The court
found that Wemhoff sought to apprehend the driver for sus-
pected driving under the influence and speeding. Because the
court determined that Werner was the passenger in the fleeing
car—rather than the driver—the court concluded that Wemhoff
had not sought to apprehend Werner. And the court deter-
mined that Werner had not “promoted, provoked or persuaded”
Korth to flee. The court found that Werner was an “innocent
third party.”
The court found that Werner had sustained $3 million in
damages. The court reduced those damages by 5 percent under
Neb. Rev. Stat. § 60-6,273 (Reissue 2010) because Werner
had not been wearing his seatbelt when the car flipped. The
court then reduced the overall award to $1 million under the
statutory cap on damages under the Political Subdivisions Tort
Claims Act (Act) and entered judgment.
The County moved for a new trial and credit against the
judgment. The court denied both. Regarding the County’s
motion for credit against the judgment, the court reasoned that
Neb. Rev. Stat. § 13-926 (Reissue 2012) intended to “fully
compensate” the “innocent third party.” Because Werner’s
damages far exceeded the statutory cap under the Act, the
County was not entitled to any credit against the judgment for
the compensation Werner had received from other sources.
1 Henery v. City of Omaha, 263 Neb. 700, 707, 641 N.W.2d 644, 649
(2002).

WERNER v. COUNTY OF PLATTE 	905
Cite as 284 Neb. 899
III. ASSIGNMENTS OF ERROR
The County assigns, restated and consolidated, that the dis-
trict court erred as follows:
(1) admitting, and ultimately relying on, evidence which
lacked foundation and was inadmissible hearsay;
(2) determining that Werner was an “innocent third party”
under § 13-911;
(3) failing to properly calculate statutory credits and deduc-
tions of the award under § 13-911; and
(4) failing to properly deduct 5 percent from the judgment
(for Werner’s failure to wear a seatbelt) after applying the
statutory cap on damages.
IV. ANALYSIS
1. evidentiary issues
As mentioned, the County objected to several witnesses’
testimony on (primarily) hearsay grounds. The court overruled
these objections. The County argues that this was error because
the challenged testimony was inadmissible hearsay. And it
argues that because the court relied on the testimony to find
Werner was an “innocent third party,” its erroneous admission
is reversible error.
(a) Standard of Review
[1] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination to admit evidence over a hear-
say objection.2
(b) Testimony of Fire and
Rescue Member Rosno
Rosno testified that while he was attending to Werner imme-
diately after the accident, Werner said that Korth “was going
way too fast” and that Werner had told Korth “to let him out.”
The court admitted this testimony over the County’s objec-
tions. The County argues that the court erred because Rosno’s
testimony was inadmissible on several grounds: It violated the
2 See State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012).

906 	284 NEBRASKA REPORTS
best evidence rule, lacked foundation, resulted from improperly
refreshing Rosno’s recollection, and was hearsay.
We reject the County’s arguments on the first three grounds.
The County did not object to Rosno’s testimony as violating
the best evidence rule. And on appeal, “a party may not assert a
different ground for an objection to the admission of evidence
than was offered to the trial court.”3
We also note that although the County assigned as error the
court’s admission of Rosno’s testimony for lack of foundation,
the County did not argue that in its brief. Absent plain error, an
assigned error that is not specifically assigned and specifically
argued in the brief is waived.4 We find no plain error.
The County also argues that Werner’s counsel improperly
refreshed Rosno’s recollection about Werner’s statements using
Rosno’s deposition from Werner’s related criminal case. The
County relies on Neb. Rev. Stat. § 29-1917(4) (Reissue 2008).
That section states that “[a] deposition taken pursuant to this
section may be used at the trial by any party solely for the
purpose of contradicting or impeaching the testimony of the
deponent as a witness.” Because Werner used the deposition
to refresh Rosno’s recollection, rather than to contradict or
impeach his testimony, the County claims that the court errone-
ously admitted Rosno’s testimony.
[2] But § 29-1917(4) restricts the use of a criminal deposi-
tion only at the trial rather than at any trial. We give statutory
language its plain and ordinary meaning.5 In § 29-1917(4),
the reference to “the trial” restricts the deposition’s use at the
criminal trial for which the deposition was taken, and not in a
separate civil action. And this makes sense, as “‘[i]t is horn-
book law that any writing may be used to refresh the recollec-
tion of a witness.’”6
3 State v. Williams, 282 Neb. 182, 194, 802 N.W.2d 421, 431 (2011).
4 See, e.g., In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012);
Miller v. Brunswick, 253 Neb. 141, 571 N.W.2d 245 (1997).
5 See, e.g., Becerra v. United Parcel Service, ante p. 414, 822 N.W.2d 327
(2012).
6 U.S. v. Carey, 589 F.3d 187, 191 (5th Cir. 2009). See, also, R. Collin
Mangrum, Mangrum on Nebraska Evidence 517 (2012).

WERNER v. COUNTY OF PLATTE 	907
Cite as 284 Neb. 899
This leaves the question whether the court properly admitted
Rosno’s testimony over the County’s hearsay objection. Werner
argues that Rosno’s testimony was admissible because it was
not hearsay and that even if it was hearsay, it was otherwise
admissible under various exceptions to the hearsay rule. We do
not address whether Rosno’s testimony was hearsay because
we conclude that, even assuming that to be the case, it was
admissible as an excited utterance.
[3,4] The general rule is that hearsay evidence is inad-
missible unless it fits within a recognized exception to the
rule against hearsay.7 One such exception is for “excited
utterances.”8 Excited utterances are admissible because a star-
tling event may produce spontaneous statements that are reli-
able, in that they are “free of conscious fabrication.”9 We
have explained:
“‘For a statement to qualify as an excited utterance, . . .
(1) [t]here must have been a startling event, (2) the state-
ment must relate to the event, and (3) the statement must
have been made by the declarant while under the stress of
the event. . . . The key requirement is spontaneity, which
“requires a showing the statements were made without
time for conscious reflection.”’”10
(i) Werner’s Statement That Korth
“was going way too fast” Was
an Excited Utterance
Rosno testified that he heard Werner say that Korth “was
going way too fast.” We conclude that this statement was
an excited utterance. There was a startling event, which
was the law enforcement pursuit and resulting accident. The
statement that Korth “was going way too fast” related to the
startling event. And Werner made the statement while under
7 See Neb. Rev. Stat. §§ 27-802 and 27-803 (Reissue 2008).
8 See § 27-803(1).
9 See, e.g., State v. Pullens, 281 Neb. 828, 840, 800 N.W.2d 202, 217
(2012).
10 State v. Jacob, 242 Neb. 176, 186, 494 N.W.2d 109, 117 (1993).

908 	284 NEBRASKA REPORTS
the stress of the event—the court found that Werner made
the statement while he was “lying on his back, paralyzed,
in a cornfield fighting for his life.” And the record supports
that finding.
But the County argues that the statement was not spon-
taneous, and therefore not an excited utterance, because it
was made in response to questions from law enforcement.
The court, however, found that Werner made the statement to
Rosno “without provocation.” We review such factual findings
for clear error.11
[5] Whether Werner made his statements in response to
questioning is relevant to whether those statements were spon-
taneous. But the focus must be on whether the party made the
statements without “conscious reflection.”12 Although some
evidence supports the County’s position, it is far from defini-
tive. And there is evidence to the contrary. For example, the
record shows that while Rosno attended to Werner, Werner
made the statement “at the accident scene, confused at times
and moaning in pain.” Rosno testified that Werner made the
statement “several times[,] over and over,” which would indi-
cate the statement was spontaneous rather than made after
conscious reflection. And although Rosno testified that Werner
admitted after direct questioning to having been in the car
with Korth, Rosno also testified that Werner’s statement about
Korth’s driving too fast was made before that, while Werner
was lying in the cornfield.
Thus, the court’s conclusion that Werner made the statement
“without provocation” was not clearly wrong. Considering
that and other circumstances in the record, we conclude
that Werner’s statement was spontaneous. And as it has met
all the other elements of an excited utterance, we conclude
that Rosno’s testimony regarding Werner’s statement that
Korth “was going way too fast,” assuming it was hearsay,
was admissible.
11 See Reinhart, supra note 2.
12 See Jacob, supra note 10. See, also, State v. Hembertt, 269 Neb. 840, 696
N.W.2d 473 (2005).

WERNER v. COUNTY OF PLATTE 	909
Cite as 284 Neb. 899
(ii) Werner’s Statement to Rosno That
He Told Korth “to let him out”
Was an Excited Utterance
[6] Rosno also testified that he heard Werner say that he told
Korth “to let him out.” This statement presents hearsay within
hearsay. Rosno testified to what Werner said immediately after
the accident, and that statement involved what Werner had told
Korth during the pursuit. To be admissible, each layer of hear-
say must have an applicable exception to the hearsay rule.13 For
the reasons already discussed, we conclude that Rosno’s testi-
mony about what Werner said immediately after the accident
was an excited utterance. The remaining question is whether
Werner’s statement to Korth “to let him out” during the pursuit
was also an excited utterance. We conclude that it was.
The startling event was the flight from law enforcement,
which entailed a high-speed, dangerous pursuit. The statement
related to the event because Werner expressed his desire to
be let out of the car during the pursuit. And Werner made the
statement while under the stress of the event because Werner
made the statement while the pursuit was ongoing. Finally, all
indications are that the statement was spontaneous. As such,
even assuming this statement was hearsay, it was also an
excited utterance and was admissible.
(c) Testimony of Trooper Fitzgerald
Fitzgerald testified that he spoke with Werner at the hospital
several hours after the accident. Fitzgerald testified Werner
said that Korth was the driver, that Korth was driving about
120 m.p.h. during the pursuit, and that during the pursuit,
Werner told Korth to let him out. The court admitted this tes-
timony over the County’s objections. The County argues that
this was error because Fitzgerald’s testimony was inadmis-
sible hearsay.
(i) Fitzgerald’s Testimony Was Hearsay
Werner argues that Fitzgerald’s testimony was not hearsay.
Hearsay is defined as “a statement, other than one made by
13 See Neb. Rev. Stat. § 27-805 (Reissue 2008).

910 	284 NEBRASKA REPORTS
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”14
At first glance, all of Werner’s statements to Fitzgerald seem
to be hearsay. Fitzgerald testified that Werner identified Korth
as the driver—this was obviously offered to prove that Korth,
and not Werner, was the driver. So Werner offered the state-
ment to prove the truth of the matter asserted. This was hear-
say. Similarly, Werner offered the estimation of the car’s speed
to prove the truth of the matter asserted—how fast the car was
going. This was also hearsay. And finally, Werner’s statement
that he asked Korth “to let him out” impliedly asserts that
Werner wanted out of the car. This was also hearsay because its
relevance depended on its truth.15 If the statement was untrue
(i.e., Werner did not want out of the car), then it would have
no bearing on whether he promoted, provoked, or persuaded
Korth to flee.
Nevertheless, Werner argues that these statements were not
hearsay for two reasons. First, regarding all of the state-
ments, Werner argues that the statements were prior con-
sistent statements offered to rebut a charge of fabrication
under § 27-801(4)(a)(ii), and so they were not hearsay. We
disagree—Fitzgerald testified to these statements before the
County attacked Werner’s credibility during Werner’s testi-
mony. Werner could not have offered Fitzgerald’s testimony to
rebut such an attack because it had not yet occurred.
[7] 	Second, 	Werner 	argues 	that 	Fitzgerald’s 	testimony
regarding 	Werner’s 	statements 	was 	not 	hearsay 	because
Werner’s statements were “verbal acts.”16 Verbal acts are not
hearsay, because their significance rests on the simple fact
that the words were said, regardless of their truth.17 From our
reading of Werner’s brief, Werner makes this argument only
about his statement to Fitzgerald that he told Korth “to let
him out.”
14 Neb. Rev. Stat. § 27-801(3) (Reissue 2008).
15 See, e.g., State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
16 Brief for appellee at 18.
17 See State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

WERNER v. COUNTY OF PLATTE 	911
Cite as 284 Neb. 899
We do not agree that this statement was a verbal act. Typical
examples of verbal acts are “words of a contract, words estab-
lishing agency, slanderous words, [and] sexually harassing
words.”18 In those cases, all that matters is that the words were
said, not whether the words were true. Here, the relevance of
Werner’s statement is dependent on its truth—the statement
impliedly asserts that Werner wanted out of the car. Only by
assuming that to be true does it then make it less likely that
Werner did not “promote, provoke, or persuade” Korth to
flee.19 Werner’s statement was not a verbal act.
(ii) Fitzgerald’s Testimony Was Not
Admissible Under an Exception
to the Hearsay Rule
So all three of Werner’s statements to Fitzgerald at the hos-
pital were hearsay. Again, we note that the third statement,
about Werner’s having told Korth “to let him out,” was hearsay
within hearsay—Werner made a statement to Fitzgerald about
a statement Werner had made to Korth. We already concluded
that what Werner told Korth during the pursuit was an excited
utterance. So we must decide only whether Werner’s state-
ments to Fitzgerald at the hospital fell under an exception to
the general rule against hearsay. Werner argues that both the
excited utterance exception and the state-of-mind exception
applied. We disagree.
As noted, for a statement to be an excited utterance,
the 	statement 	must 	have 	been 	spontaneously 	made; 	that
is, the statement must have been made without conscious
reflection.20 The record shows that Werner made his state-
ments to Fitzgerald in direct response to Fitzgerald’s ques-
tioning, which suggests that Werner had the opportunity to
consciously reflect on his answers. Werner’s statements to
Fitzgerald also occurred several hours after the accident. And
although the record shows that Werner was on pain medi-
cations and discussing his paralysis with his doctors at the
18 Mangrum, supra note 6 at 762.
19 See brief for appellee at 19.
20 See Jacob, supra note 10.

912 	284 NEBRASKA REPORTS
relevant time, Fitzgerald testified that Werner was conscious,
alert, and responsive. We conclude that Werner’s statements
to Fitzgerald were not spontaneous, and therefore, the excited
utterance exception did not apply.21
The state of mind exception does not apply either. Under
that exception, a “statement of the declarant’s then existing
state-of-mind, emotion, sensation, or physical condition” is
admissible unless it is a “statement of memory or belief to
prove the fact remembered or believed.”22 Here, Werner’s state-
ments identifying Korth as the driver and estimating the speed
of the car are statements of memory or belief to prove the fact
remembered or believed. And Werner’s third statement, that he
told Korth “to let him out,” is not an expression of his “then
existing state of mind”23 at the hospital; instead, it is at best an
expression of Werner’s state of mind during the pursuit. The
state-of-mind exception does not apply.
(iii) The Court’s Erroneous Admission
of Fitzgerald’s Testimony Did Not
Unfairly Prejudice a Substantial
Right of the County
[8] Fitzgerald’s testimony regarding Werner’s statements
at the hospital was hearsay with no applicable exception. So
the court’s admission of this testimony was error. The ques-
tion is whether that error is reversible error. In a civil case,
the admission or exclusion of evidence is not reversible error
unless it “unfairly prejudice[d] a substantial right” of the
complaining party.24 The County argues that the erroneous
admission of Fitzgerald’s testimony is reversible error because
the trial court explicitly relied on that testimony in reaching
its conclusions.
21 See, e.g., State v. Sullivan, 236 Neb. 344, 461 N.W.2d 84 (1990). Cf.
Hembertt, supra note 12.
22 § 27-803(2).
23 See id.
24 See Martensen v. Rejda Bros., 283 Neb. 279, 289, 808 N.W.2d 855, 864
(2012). Accord, Neb. Rev. Stat. § 27-103(1) (Reissue 2008); Rose v. City
of Lincoln, 234 Neb. 67, 449 N.W.2d 522 (1989).

WERNER v. COUNTY OF PLATTE 	913
Cite as 284 Neb. 899
In its order, the court referred to Rosno’s and Fitzgerald’s
testimony regarding Werner’s statements. The court found those
statements “credible and significant.” The court relied on that
evidence, in part, to determine that Werner was not the driver
and, therefore, not the person that Wemhoff sought to appre-
hend. The court also seemingly relied in part on Rosno’s and
Fitzgerald’s testimony to determine that Werner was a credible
witness. The court’s determination that Werner was a credible
witness was important in making its overall conclusions about
whether Werner was an “innocent third party.”
[9] The erroneous admission of evidence is not reversible
error “if the evidence is cumulative and other relevant evi-
dence, properly admitted, supports the finding by the trier of
fact.”25 Here, the court characterized Rosno’s and Fitzgerald’s
testimony as “similar,” and we agree. The court used their
testimony for the same purposes—to conclude that Werner
was not the driver and to bolster Werner’s credibility. Thus,
Fitzgerald’s testimony was in effect cumulative of Rosno’s
properly admitted testimony.
Furthermore, Fitzgerald’s testimony was a relatively small
part of the court’s basis for concluding that Werner was not the
driver. Wemhoff concluded that Korth was the driver, based
on Werner’s statements and because the car was registered to
Korth’s parents. The accident reconstructionist also concluded
that Korth was the driver. And Rosno’s testimony supported
finding that Korth was the driver. The court explicitly relied
on and recounted this evidence in concluding that Korth was
the driver.
Similarly, Fitzgerald’s testimony was a relatively small
part of the court’s basis for finding Werner credible. Again,
Rosno’s properly admitted testimony served the same func-
tion. The court explicitly stated that it found Werner credible
after “having had the opportunity to observe Werner during his
testimony.” And the court noted other facts which bolstered
Werner’s credibility. Specifically, the court noted Werner testi-
fied that he was not thinking about being arrested during the
25 Worth v. Kolbeck, 273 Neb. 163, 177, 728 N.W.2d 282, 295 (2007).

914 	284 NEBRASKA REPORTS
pursuit and that he did not instigate the flight to avoid arrest.
The court found this testimony credible because Werner had
plenty of opportunity to dump the contraband during the flight
itself if he had been concerned with being caught with it, but
he did not.
We 	conclude 	that 	the 	court’s 	erroneous 	admission 	of
Fitzgerald’s testimony did not unfairly prejudice a substantial
right of the County. Fitzgerald’s testimony was essentially
cumulative of Rosno’s properly admitted testimony because
Rosno’s testimony was similar and used for the same purposes.
Fitzgerald’s testimony played a relatively small part in the
court’s conclusions that Korth was the driver and that Werner
was credible.
(d) Werner’s Trial Testimony That He
Had “heard” About Korth’s Previous
Flights From Law Enforcement
At one point in his testimony, Werner explained that once
Korth “hit the gas,” he knew that “it just was not going to
end good.” Werner explained he felt that way because he had
“heard” that Korth had previously been convicted for fleeing
from law enforcement and that on another occasion, Korth had
fled from law enforcement and avoided arrest. The court admit-
ted this testimony over the County’s objection. The County
argues that the court erred in doing so because the testimony
was inadmissible hearsay.
Werner testified about an out-of-court statement because
Werner said he had “heard” about Korth’s earlier flights from
law enforcement. The question is whether Werner offered that
statement to prove the truth of the matter asserted; that is,
whether Werner offered that statement to prove that Korth had
previously fled from law enforcement. He did not.
The record shows that Werner’s counsel offered the state-
ment to show what Werner was thinking during the pursuit
and to prove that Werner would not have promoted, provoked,
or persuaded Korth to flee. In other words, because Werner
had heard about Korth’s prior incidents (which had not ended
“good”), he knew fleeing from law enforcement would be
a bad idea, and so he did not instigate the flight. For that

WERNER v. COUNTY OF PLATTE 	915
Cite as 284 Neb. 899
purpose, it did not matter whether what Werner had “heard”
was true or false—that Werner heard the statement was what
was important. So it was not hearsay because Werner did not
offer the statement to prove the truth of the matter asserted.
The County also argues that Werner’s testimony was inad-
missible under Neb. Rev. Stat. §§ 27-404(2), 27-405, 27-608,
and 27-609 (Reissue 2008). But the County did not make those
arguments to the court, and it cannot assert “a different ground
for an objection to the admission of evidence than was offered
to the trial court.”26
(e) Summary of Evidentiary Issues
Werner’s testimony that he had “heard” Korth had been
involved in other flights from law enforcement was not hear-
say, and so the court properly admitted his testimony. Rosno’s
testimony recounting Werner’s statements that Korth “was
going way too fast” and that Werner had told Korth “to let
him out” was admissible hearsay under the excited utterance
exception. However, Fitzgerald’s testimony about similar state-
ments from Werner at the hospital was hearsay and was not
admissible under any exception to the hearsay rule. The court
erred in admitting Fitzgerald’s testimony. But because it was
essentially cumulative evidence that played a small part in the
court’s overall reasoning, the error did not unfairly prejudice a
substantial right of the County.
2. “innoCent third party ”
The County argues that under § 13-911, the court erred in
finding Werner was an “innocent third party.” Specifically, the
County argues the court erred in finding that law enforcement
did not seek to apprehend Werner and that Werner did not
promote, provoke, or persuade Korth to flee. The County also
argues that Werner was not an “innocent third party” as a mat-
ter of law because he was subject to arrest during and after the
pursuit and because he was later charged with and convicted
of a crime. We conclude, however, that both the law and the
record support the court’s finding.
26 Williams, supra note 3, 282 Neb. at 194, 802 N.W.2d at 431.

916 	284 NEBRASKA REPORTS
(a) Standard of Review
[10-12] In actions brought under the Act, we will not dis-
turb the trial court’s factual findings on appeal unless they
are clearly wrong.27 When determining the sufficiency of the
evidence to sustain the trial court’s judgment, it must be con-
sidered in the light most favorable to the successful party;
every controverted fact must be resolved in favor of such
party, and it is entitled to the benefit of every inference that
can be deduced from the evidence.28 But when reviewing ques-
tions of law, an appellate court has an obligation to resolve
the questions independently of the conclusion reached by the
trial court.29
(b) Analysis
[13,14] Section 13-911 provides a remedy to an “innocent
third party” for damages caused by a law enforcement offi-
cer’s “vehicular pursuit.” Section 13-911(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 a political subdivision during vehicu-
lar pursuit, damages shall be paid to such third party by the
political subdivision employing the officer.” Under this sec-
tion, a political subdivision is strictly liable for injuries to an
“innocent third party” during a vehicular pursuit, regardless
whether the law enforcement officer’s actions were otherwise
proper or even necessary.30 As mentioned, an “innocent third
party” is “one who has not promoted, provoked, or persuaded
the driver to engage in flight from law enforcement person-
nel and one who is not sought to be apprehended in the flee-
ing vehicle.”31
27 See Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).
28 See id.
29 See id.
30 See Stewart v. City of Omaha, 242 Neb. 240, 494 N.W.2d 130 (1993),
disapproved on other grounds, Henery, supra note 1.
31 Henery, supra note 1, 263 Neb. at 707, 641 N.W.2d at 649.

WERNER v. COUNTY OF PLATTE 	917
Cite as 284 Neb. 899
(i) Law Enforcement Did Not
Seek to Apprehend Werner
The court found that law enforcement did not seek to appre-
hend Werner. The court found that Korth was the driver of the
fleeing car. The court noted that law enforcement attempted to
pull over Korth’s car for suspected driving under the influence
and speeding. The court concluded that Wemhoff intended to
apprehend only the driver and that he did not even know there
was a passenger in the car. Therefore, the court concluded that
law enforcement never sought to apprehend Werner, who was
the passenger.
But, the County argues that Wemhoff’s not having seen
Werner does not mean that he did not seek to apprehend him.
The County also argues that Werner was subject to arrest dur-
ing and after the pursuit and that Wemhoff initially thought
that Werner was the driver. The County argues that under the
totality of the circumstances, the court erred in finding that law
enforcement did not seek to apprehend Werner.
[15] Whether law enforcement sought to apprehend Werner
is a mixed question of law and fact.32 Here, the record supports
the pertinent factual underpinnings of the court’s conclusion,
and thus, they are not clearly wrong. Substantial evidence
supports the court’s conclusion that Korth was the driver and
that Wemhoff sought to pull over the car for suspected driving
under the influence and speeding.
And the court’s legal conclusion based on those facts is
sound. Wemhoff sought to pull over the car for suspected driv-
ing under the influence and speeding—only the driver could
have been guilty of those crimes.33 So the court found that
because Werner was the passenger, law enforcement could not
have sought to apprehend him.
Nevertheless, the County takes issue with the court’s con-
clusion. The County argues that whether a pursuing officer
knew there were passengers in a fleeing vehicle is irrelevant
to determining whether the officer sought to apprehend them.
32 See Jura v. City of Omaha, 15 Neb. App. 390, 727 N.W.2d 735 (2007).
33 See Neb. Rev. Stat. §§ 60-6,196 and 60-682.01 (Reissue 2010).

918 	284 NEBRASKA REPORTS
The County argues that “such a rule [would place] an unfair
burden on police officers and would in theory allow any hiding
or unseen passenger to . . . automatically be afforded ‘inno-
cent third party’ status, no matter what wrongdoing he had
engaged in.”34
We agree with the County. But we do not read the court’s
order as creating such a rule. Yes, the court noted that Wemhoff
did not know there was a passenger in the car during the pur-
suit. But as we read the court’s order, this was done more for
emphasis than as a foundational basis for the court’s conclu-
sion. Instead, the court’s order properly focused on Wemhoff’s
reasons for pulling over the car in determining whether he
sought to apprehend Werner. Specifically, the court recognized
that Wemhoff’s intent was to stop the driver for suspected
driving under the influence and speeding. And the court stated
that “[u]nless Werner was driving the vehicle, he was never the
target” of Wemhoff’s pursuit.
That Werner, as the passenger, was never the target of
Wemhoff’s pursuit is supported by Henery v. City of Omaha,35
which dealt with a similar factual scenario. In Henery, a
police officer initiated a traffic stop of a car with two known
occupants because he suspected driving under the influence,
in addition to speeding. The car fled, the officer pursued, and
the car crashed. The passenger sustained serious injuries and
died as a result of the accident, and her estate sued the City of
Omaha under § 13-911.
We determined that the passenger in Henery was an “inno-
cent third party” under the statute. We noted that “there [was]
no evidence that law enforcement attempted to apprehend
[her]” and that “[a]lthough [she] may have exhibited poor judg-
ment in riding with [the driver], she did not lose her ‘innocent
third party’ status . . . based only on such choice.”36
Similarly, Wemhoff sought to pull over the driver of the
car for suspected driving under the influence and speeding.
34 Brief for appellant at 30-31.
35 See Henery, supra note 1.
36 Id. at 707, 641 N.W.2d at 649.

WERNER v. COUNTY OF PLATTE 	919
Cite as 284 Neb. 899
Because Werner was the passenger of the car, Wemhoff did not
seek to apprehend Werner, regardless whether Wemhoff knew
Werner was in the car. Like the passenger in Henery, Werner
did not lose his “innocent third party” status simply by riding
in the car.
We also note that Wemhoff’s later discovery that Werner
had been breaking the law was irrelevant to whether Wemhoff
sought to apprehend Werner during the pursuit. This is because
that inquiry is based on the officer’s knowledge before the
pursuit occurs, and not on what the officer discovers after
the fact.37 During the pursuit, Wemhoff did not know about
Werner’s breaking the law, and so he did not seek to apprehend
him at that time.38
(ii) Werner Did Not Promote, Provoke,
or Persuade Korth to Flee
The court found that Werner did not promote, provoke, or
persuade Korth to flee. The County argues that “something
clearly ‘provoked’ Korth . . . to flee”39 and suggests that
Werner spurred the flight.
[16,17] But whether Werner promoted, provoked, or per-
suaded Korth to flee was a factual finding, which we review
for clear error.40 The record shows that the court based its find-
ing on Werner’s testimony. Witness credibility and the weight
to be given a witness’ testimony are questions for the trier of
fact.41 Werner testified that although he had contraband on his
person, he did not promote, provoke, or persuade Korth to
flee. Werner testified that he knew about Korth’s prior history
of fleeing from law enforcement, that he was concerned only
with his own safety, and that his possession of contraband was
the last thing on his mind. The court found Werner’s testimony
credible and gave it substantial weight. Werner’s testimony
37 See, Henery, supra note 1; Jura, supra note 32.
38 See Jura, supra note 32.
39 Brief for appellant at 33.
40 See Reed v. City of Omaha, 15 Neb. App. 234, 724 N.W.2d 834 (2006).
41 See, e.g., Huffman v. Peterson, 272 Neb. 62, 718 N.W.2d 522 (2006).

920 	284 NEBRASKA REPORTS
supports the court’s finding, and thus, the court’s finding was
not clearly wrong.
(iii) Werner Was Not Disqualified From
Being an “Innocent Third Party”
as a Matter of Law
Finally, the County argues that as a matter of law Werner is
not an “innocent third party.” The County argues that “inno-
cent” is generally defined as “‘free from legal guilt or fault’”42
and that because Werner was breaking the law, he cannot be
considered innocent. And the County argues that to the extent
we have defined an “innocent third party” to include individ-
uals like Werner, we should alter our previous interpretation of
the statutory language to carry out its intent.43
[18,19] We agree that Werner was not “innocent” as that
term is ordinarily understood. But the phrase “innocent third
party” is a term of art under the statute, and the ordinary mean-
ing of “innocent” does not apply. Instead, we have defined an
“innocent third party” as a person that was not “sought to be
apprehended” by the pursuing officer and as a person who did
not promote, provoke, or persuade the driver to flee.44 In doing
so, we noted that “by its use of the phrase ‘innocent third party’
. . . the Legislature was concerned with the actions of the third
party as those actions may relate to the flight of the driver
sought to be apprehended.”45 Simply put, a third party is “inno-
cent” if he or she played no role in causing the law enforce-
ment pursuit. Yes, Werner broke the law. But that does not
affect Werner’s “innocent third party” status under § 13-911
because Werner’s breaking the law did not cause Wemhoff to
pursue or Werner to instigate the driver to flee.
[20] But the County argues that we can (and should) rede-
fine an “innocent third party” to exclude individuals who, like
Werner, were breaking the law during the pursuit. We reject
the County’s invitation to do so. We explicitly defined an
42 Brief for appellant at 35.
43 See Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006).
44 See Henery, supra note 1, 263 Neb. at 707, 641 N.W.2d at 649.
45 Id. (emphasis supplied).

WERNER v. COUNTY OF PLATTE 	921
Cite as 284 Neb. 899
“innocent third party” in Henery (and did so implicitly in prior
decisions46), and the Legislature has not replaced our definition
with one of its own.47 When an appellate court has judicially
construed a statute and that construction has not evoked an
amendment, there is a presumption that the Legislature has
acquiesced in the court’s determination of the Legislature’s
intent.48 The County’s argument has no merit.
3. Motion for C redit against
the JudgMent
The court entered a $1 million judgment for Werner. The
County argued that Werner had received $140,000 in com-
pensation from other sources and that the County was enti-
tled to a reimbursement (as a credit against the judgment)
for that amount under § 13-911(2). The court determined
that under § 13-926, however, the County’s otherwise avail-
able reimbursement had to be eliminated in an attempt to
“fully compensate” Werner. The County claims this was error.
We disagree.
(a) Standard of Review
[21] Statutory interpretation presents a question of law.
When reviewing questions of law, we resolve the questions
independently of the conclusions reached by the trial court.49
(b) Analysis
The applicable statutory provisions are § 13-911(2) and (3)
and § 13-926. A brief overview of these statutes is necessary to
understand the issues presented by this assigned error.
Where a political subdivision is liable and pays damages to
an “innocent third party,” § 13-911(2) lists sources of reim-
bursement for the political subdivision. For example, a political
subdivision may be reimbursed from, among other sources, the
46 See, e.g., Stewart, supra note 30.
47 See, § 13-911; Henery, supra note 1.
48 See, e.g., Henery, supra note 1; Creighton St. Joseph Hosp. v. Tax Eq. &
Rev. Comm., 260 Neb. 905, 620 N.W.2d 90 (2000).
49 See, e.g., Village of Hallam v. L.G. Barcus & Sons, 281 Neb. 516, 798
N.W.2d 109 (2011).

922 	284 NEBRASKA REPORTS
driver of the fleeing vehicle, or any organization liable for the
driver’s conduct of the fleeing vehicle.50
Section 13-911(3) provides:
This section shall not relieve any public or private source
required statutorily or contractually to pay benefits for
disability or loss of earned income or medical expenses of
the duty to pay such benefits when due. No such source
of payment shall have any right of subrogation or contri-
bution against the political subdivision.
Finally, § 13-926 limits the liability of a political subdi-
vision in a claim under the Act—in other words, § 13-926
is a damages cap. After setting the cap, however, § 13-926
then provides:
If the damages sustained by an innocent third party
pursuant to section 13-911 are not fully recoverable from
one or more political subdivisions due to the limitations
in this section, additional sources for recovery shall be
as follows: First, any offsetting payments specified in
subsection (3) of section 13-911 shall be reduced to
the extent necessary to fully compensate the innocent
third party; and second, if such reduction is insufficient
to fully compensate the innocent third party, the right
of reimbursement granted to the political subdivision
in subsection (2) of section 13-911 shall be reduced to
the extent necessary to fully compensate the innocent
third party.
Thus, § 13-926 sets forth a process by which any reimburse-
ment to the political subdivision is reduced “to the extent
necessary to fully compensate the innocent third party.” With
that 	background, 	we 	now 	address 	the 	credit-against-the-
judgment issue.
The 	County 	argues 	that 	§ 	13-926 	required 	the 	court
to 	reduce 	any 	“offsetting 	payments” 	under 	§ 	13-911(3)
before reducing the County’s right to reimbursement under
§ 13-911(2). The County argues that the court incorrectly
bypassed this first step and proceeded immediately to reduc-
ing the County’s right to reimbursement. And the County
50 See § 13-911(2)(a) and (b).

WERNER v. COUNTY OF PLATTE 	923
Cite as 284 Neb. 899
argues that it was Werner’s burden to prove the existence
and amounts of those “offsetting payments,” if they existed,
which Werner did not do. Therefore, the County argues, the
court erred in eliminating its otherwise available reimburse-
ment under § 13-911(2).
On its face, the County’s argument seems to have merit.
Section 13-926 does require that “offsetting payments” under
§ 13-911(3) be reduced before reducing the County’s right
to reimbursement under § 13-911(2). Yet, we cannot recon-
cile the “offsetting payments” language with the language of
§ 13-911(3). Section 13-911(3) says that any other “statutorily
or contractually” required obligation to pay the “innocent third
party” (such as a disability insurance policy) must be paid,
regardless whether the political subdivision has paid dam-
ages under § 13-911. Section 13-911(3) says nothing about
“offsetting payments.” Nor can we interpret that phrase to
mean the payments to the “innocent third party” which are
referred to in § 13-911(3)—reducing them would obviously
not serve to “fully compensate” the “innocent third party” as
§ 13-926 intends.
[22] Interpreting these statutes to reach a legal conclusion
presents a difficult task. We attempt to give effect to each word
or phrase in a statute and ordinarily will not read language
out of a statute.51 But we see no way to give effect to the
command of § 13-926 to reduce “offsetting payments” under
§ 13-911(3) before reducing the County’s right to reimburse-
ment under § 13-911(2). Therefore, once it was clear that
Werner’s damages exceeded the statutory cap, the court prop-
erly proceeded to reduce the County’s right to reimbursement
under § 13-911(2). The County’s argument has no merit.
The County next argues that the court erred in calculating
the amount of damages ($3 million) and then entering a $1 mil-
lion judgment under the statutory cap. The County argues that
once the court determined Werner’s damages exceeded the
statutory cap, it should have simply entered judgment for the
maximum allowed under the cap. But § 13-926 required the
51 See, e.g., In re Claims Against Atlanta Elev., Inc., 268 Neb. 598, 685
N.W.2d 477 (2004).

924 	284 NEBRASKA REPORTS
court to calculate Werner’s damages before entering judgment
for the statutory cap amount.
Because § 13-926 imposed a statutory cap on a political sub-
division’s liability, it logically envisioned cases where the dam-
ages would exceed that amount.52 When the damages suffered
by the “innocent third party” are not fully recoverable because
of the cap, § 13-926 requires a court to reduce a political sub-
division’s right to reimbursement “to the extent necessary to
fully compensate” the “innocent third party.” That would be
impossible if the court could not calculate the exact damages
the “innocent third party” had suffered—the extent to which
reduction is “necessary” would depend on the total damages
suffered by the “innocent third party.”
Finally, the County argues that the court erred in its ultimate
determination that the County was not entitled to reimburse-
ment under § 13-911(2). But as explained above, where the
recovery of an “innocent third party” is limited by the cap,
§ 13-926 requires that the political subdivision’s reimburse-
ment be reduced “to the extent necessary to fully compensate”
the party.
Here, Werner suffered $3 million in damages, but the court
entered judgment for $1 million under the statutory cap. The
County’s claimed reimbursement was $140,000. Section 13-926
required that the reimbursement be reduced “to the extent
necessary” to fully compensate the “innocent third party.”
Because Werner’s actual damages exceeded the capped amount
by $2 million, and other sources provided only $140,000, the
court properly concluded that the County was not entitled
to reimbursement.
4. appliCation of the
“seatBelt ” statute
Werner was not wearing his seatbelt, so the court reduced
Werner’s $3 million damages by 5 percent under § 60-6,273.
The court applied this reduction before applying the statutory
cap of $1 million. The County argues that that was error and
52 See § 13-926.

WERNER v. COUNTY OF PLATTE 	925
Cite as 284 Neb. 899
that the court should have applied the 5-percent reduction after
applying the cap. We conclude that the court followed the
proper procedure.
(a) Standard of Review
Statutory interpretation presents a question of law. When
reviewing questions of law, we resolve the questions indepen-
dently of the conclusions reached by the trial court.53
(b) Analysis
Section 60-6,273 provides:
Evidence that a person was not wearing an occupant
protection system at the time he or she was injured shall
not be admissible in regard to the issue of liability or
proximate cause but may be admissible as evidence con-
cerning mitigation of damages, except that it shall not
reduce recovery for damages by more than five percent.
We have not decided this exact issue. And how a court
should apply the seatbelt statute with the statutory cap under
the Act is unclear from its language. Under that statute, evi-
dence of not using a seatbelt is admissible only for “mitigation
of damages.”54 So it would make sense to apply the 5-percent
reduction to the total “damages” incurred and then apply the
cap. But the statute goes on to say that “it shall not reduce
recovery for damages by more than five percent.”55 Werner
can only possibly “recover” $1 million under the statutory cap.
Thus, the statute could be read to apply only to the possible
“recovery” for damages, rather than to the actual amount of
damages incurred.
Both parties cite to outside jurisdictions in support of their
respective positions, but none of the cited cases deal with seat-
belt provisions and their application with a statutory cap on
damages. Instead, the cases deal with the similar issue of when
to apply the comparative negligence statutes with a statutory
53 See, e.g., Village of Hallam, supra note 49.
54 § 60-6,273 (emphasis supplied).
55 Id. (emphasis supplied).

926 	284 NEBRASKA REPORTS
cap on damages. We agree that these types of cases are appli-
cable here and that there are cases from outside jurisdictions to
support both parties’ respective positions.56
But while those cases are informative, our recent case
Connelly v. City of Omaha57 resolves this dispute. In that case,
as with those cited by the parties, at issue was the proper order
in which to apply the comparative negligence statutes and the
statutory cap under the Act. We determined that the compara-
tive negligence statutes should be applied before the statutory
cap. We explained that
a 	statutory 	limitation 	on 	damages 	such 	as 	that 	of
§ 13-926(1) “applies to cap the total recovery after the
reduction of the plaintiff’s damages for his or her com-
parative negligence, rather than applying to the total
damages established before the reduction for comparative
negligence, since the latter approach would multiply the
effect of the damage limitation.”58
We conclude that the same reasoning applies here. The court
properly applied the seatbelt statute before the statutory cap.
V. CONCLUSION
The district court’s only error was admitting Fitzgerald’s
hearsay testimony, but that error did not unfairly prejudice a
substantial right of the County. We affirm.
affirMed.
56 See, e.g., Fairfax Hosp. System, Inc. v. Nevitt, 249 Va. 591, 457 S.E.2d 10
(1995); Rodriguez v. Cambridge Housing Authority, 59 Mass. App. 127,
795 N.E.2d 1 (2003).
57 Connelly v. City of Omaha, ante p. 131, 816 N.W.2d 742 (2012).
58 Id. at 159, 816 N.W.2d at 764-65.
Cassel, J., concurring.
I doubt that most members of the Legislature, if asked,
would characterize a passenger in a vehicle fleeing from law
enforcement, who has on his person methamphetamine and
glass pipes for smoking it later “that evening” and who pos-
sesses (and likely is drinking from) an open container of an
alcoholic beverage when the pursuit begins, as an “innocent

WERNER v. COUNTY OF PLATTE 	927
Cite as 284 Neb. 899
third party.”1 Yet, Nebraska jurisprudence compels this court to
accept such a result, as the court’s opinion cogently explains. I
write separately only to emphasize that the Legislature has the
power to change the result in a future case.
Because the Legislature has not defined “innocent third
party,” the Nebraska appellate courts have repeatedly addressed
its meaning as applied to a passenger in a fleeing vehicle.2 This
court first upheld a judgment determining that a motorcycle
passenger—who, according to the trial court’s factual findings,
was not accused of any wrongdoing other than the flight from
arrest and had “‘no opportunity to dismount’”—qualified as
an “innocent third party.”3 In 2002, this court again affirmed
a trial court judgment for a passenger in a fleeing vehicle.4
Although the passenger had a blood alcohol level of .123,
she had not “commit[ted] any crimes” and had no “reason
. . . to flee from police.”5 There was no evidence that she
had “planned or encouraged” the driver’s flight from police.6
Indeed, the police officer who conducted the pursuit testified
that he was unaware that the passenger “‘did anything wrong’”
at the time of the pursuit.7 It was in that 2002 decision that this
court defined an “innocent third party” as “one who has not
promoted, provoked, or persuaded the driver to engage in flight
from law enforcement personnel and one who is not sought to
be apprehended in the fleeing vehicle.”8 Applying this defini-
tion, the Nebraska Court of Appeals, in separate decisions
1 See Neb. Rev. Stat. § 13-911(1) (Reissue 2012).
2 See, Henery v. City of Omaha, 263 Neb. 700, 641 N.W.2d 644 (2002);
Stewart v. City of Omaha, 242 Neb. 240, 494 N.W.2d 130 (1993),
disapproved on other grounds, Henery v. City of Omaha, supra; Jura v.
City of Omaha, 15 Neb. App. 390, 727 N.W.2d 735 (2007); Reed v. City of
Omaha, 15 Neb. App. 234, 724 N.W.2d 834 (2006).
3 Stewart v. City of Omaha, supra note 2, 242 Neb. at 245-46, 494 N.W.2d
at 134.
4 Henery v. City of Omaha, supra note 2.
5 Id. at 704, 641 N.W.2d at 647.
6 Id.
7 Id.
8 Id. at 707, 641 N.W.2d at 649.

928 	284 NEBRASKA REPORTS
arising from a single incident, affirmed trial court judgments
refusing to treat the respective passengers as innocent third
parties because, in one case, the passenger had an outstanding
arrest warrant and told the driver, “‘[H]urry up and get away
from ’em ’cause I got a warrant,’”9 and in the other, the police
were seeking to apprehend the passenger as an occupant of a
stolen vehicle.10
This court’s 2002 decision premised its definition upon the
belief that the Legislature was “concerned with the actions of
the third party as those actions may relate to the flight of the
driver sought to be apprehended.”11 The test fashioned in 2002
reasonably addressed that concern, and the rule of statutory
construction presuming acquiescence in the court’s determina-
tion of legislative intent12 requires this court to adhere to its
understanding of the Legislature’s intent.
But the Legislature may wish to place an additional limita-
tion on the definition of an “innocent third party” in light of the
facts of the instant case, and it is free to do so. For example,
the Legislature might decide to narrow the definition of an
“innocent third party” to exclude a person then engaged in a
violation of a felony or misdemeanor offense, without regard
to whether such person or his or her conduct was known to
law enforcement officers before initiating the pursuit. “To
assist in construing statutes, courts employ presumptions which
are applicable when a court has doubt as to the intent of the
legislature.”13 The court’s opinion in the instant case applies
such a well-settled presumption.14 However, “such presump-
tions disappear in light of an express legislative declaration.”15
9 Reed v. City of Omaha, supra note 2, 15 Neb. App. at 240-41, 724 N.W.2d
at 840.
10 Jura v. City of Omaha, supra note 2.
11 Henery v. City of Omaha, supra note 2, 263 Neb. at 707, 641 N.W.2d at
649.
12 See Underhill v. Hobelman, 279 Neb. 30, 776 N.W.2d 786 (2009).
13 82 C.J.S. Statutes § 375 at 465 (2009).
14 See id., § 384.
15 Id., § 375 at 465-66.

STATE v. QUALLS 	929
Cite as 284 Neb. 929
Thus, the Legislature may amend the statute to refine or change
the definition of an “innocent third party.”
But because such a change is the province of the Legislature,
it cannot come from this court. For over 10 years, the
Legislature has apparently acquiesced in this court’s 2002
assessment of legislative intent and its definition fashioned
to implement that intent. If the definition is to be changed
now, it must be enacted by the Legislature. I therefore join the
court’s opinion.
state of neBraska, appellee, v. devin d. Q ualls, appellant.
824 N.W.2d 362
Filed December 21, 2012. 	No. S-12-409.
1. Constitutional Law: Waiver: Appeal and Error. In determining whether a
defendant’s waiver of a statutory or constitutional right was voluntary, knowing,
and intelligent, an appellate court applies a clearly erroneous standard of review.
2. Criminal Law: Statutes: Presentence Reports. The plain language of Neb. Rev.
Stat. § 29-2261(1) (Cum. Supp. 2012) provides that a presentence investigation is
mandatory in felony cases, except if it would be impractical.
3. Presentence Reports: Waiver. The right to a presentence investigation may
be waived.
4. Waiver: Words and Phrases. A waiver is the voluntary and intentional relin-
quishment of a known right, privilege, or claim, and may be demonstrated by or
inferred from a person’s conduct.
5. Constitutional Law: Waiver: Records. A voluntary waiver, knowingly and
intelligently made, must affirmatively appear from the record, before a court
may conclude that a defendant has waived a right constitutionally guaranteed or
granted by statute.
Appeal from the District Court for Sarpy County: david k.
arterBurn, Judge. Affirmed.
Patrick 	J. 	Boylan, 	Chief 	Deputy 	Sarpy 	County 	Public
Defender, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heaviCan, C.J., Wright, C onnolly, stephan, MCC orMaCk,
M iller-lerMan, and Cassel, JJ.