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Full Opinion
INTRODUCTION
On December 31, 1993, Teena Brandon (Brandon), Lisa Lambert, and Phillip Devine were found murdered in Lambertâs rural Humboldt farmhouse in Richardson County, Nebraska. John L. Lotter and Thomas M. Nissen, also known as Marvin T. Nissen, were convicted of the murders. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). Brandonâs mother, JoAnn Brandon (JoAnn), brought an action against Richardson County and Sheriff Charles B. Laux for negligence, wrongful death, and intentional infliction of emotional distress in connection with Brandonâs murder and the events leading up to her death.
The district court found the county negligent and awarded economic damages of $6,223.20 and noneconomic damages of $80,000. However, the court reduced the damage award on the negligence claim by 85 percent for the intentional torts of Lotter and Nissen, and by 1 percent for the negligence of Brandon. The court denied recovery on the intentional infliction of emotional distress claim and awarded ânominal damagesâ for loss of soci *640 ety, comfort, and companionship. JoAnn appeals, and the county cross-appeals.
FACTUAL BACKGROUND
Brandon had been sexually abused as a child, and in her late teens, developed gender identity disorder, a condition in which one develops a strong dislike for oneâs own gender and assumes the characteristics, both behaviorally and emotionally, of the other gender. In November 1993, Brandon came to Richardson County after leaving Lincoln due to legal troubles. Brandon had been convicted of forgery in Lancaster County and had violated the terms of her probation. While in Richardson County, Brandon presented herself as a man. Brandon had obtained a driverâs license identifying Brandon as a male by the name of Charles Bray man.
In December 1993, Brandon met Lana Tisdel, a young woman who resided in Falls City. Tisdel, believing Brandon to be a male, dated Brandon for approximately 1 month. After moving to Richardson County, Brandon also became acquainted with Lotter and Nissen. On December 15, Brandon was booked into the Richardson County jail on forgery charges for forging checks in Richardson County. Brandon was placed in an area of the jail where females are usually held. While Brandon was being held at the jail, Laux referred to Brandon as an âitâ during a conversation with Tisdel which took place in Brandonâs presence. A few days later, Nissen secured Brandonâs release from jail by posting bail with money Tisdel gave to Nissen. Thereafter, Lotter and Nissen became suspicious of Brandonâs sexual identity.
On December 24, 1993, several people, including Brandon and Tisdel, attended a party at Nissenâs home. In the early morning hours of December 25, in an attempt to prove to Tisdel that Brandon was a female, Lotter and Nissen pulled Brandonâs pants down in Tisdelâs presence.
Later that same morning, Lotter and Nissen beat Brandon, hitting her in the head, kicking her in the ribs, and stepping on her back. Lotter and Nissen then drove Brandon to a remote location where both Lotter and Nissen sexually assaulted Brandon. After the sexual assaults, Nissen beat Brandon again. *641 When they returned to Nissenâs house, Brandon escaped by kicking out a bathroom window and ran to the home of Linda Gutierres, Tisdelâs mother.
When Brandon arrived at Gutierresâ home at approximately 6 a.m., Brandon had a swollen, bloody lip, scratches, and a âshoe printâ on her back, and she was crying. An ambulance was called, and Brandon was transported to the local hospital, where Brandon reported that she had been beaten and sexually assaulted. A rape examination was performed at the hospital, and the results, which showed that Brandon had been sexually penetrated, were turned over to law enforcement.
Around noon that same day, Brandon provided a written statement to the Falls City Police Department regarding the rapes. Later that day, Laux and Deputy Tom Olberding of the Richardson County sheriffâs office conducted a tape-recorded interview with Brandon. Prior to the interview, Laux had been informed by the hospital staff that Brandon had been beaten and sexually penetrated. Olberding conducted the initial interview, during which Brandon described the rapes, including the location where the rapes occurred, and that Lotter and Nissen had used condoms during the rapes. Brandon also indicated that she had a pair of rolled-up socks in her pants at the time of the rapes. Laux was present in the interview room the entire time Olberding was questioning Brandon.
After Brandon had initially related the details of the rapes to Olberding and Laux, Laux began questioning Brandon regarding the details of the rapes a second time, beginning at approximately 3:40 p.m. on December 25,1993. Shortly after Laux began questioning Brandon, Olberding left the room. At that time, Olberding had a brief conversation with Keith Hayes, an investigator with the Falls City Police Department, who was present outside the interview room. Olberding indicated that he left the room because he âdidnât like the way [the interview] was going.â Olberding returned to the interview room a short time later. (All quotations from the December 25 interview appearing in this opinion are taken from the tape-recorded version of the interview.)
While questioning Brandon about the incident that occurred at Nissenâs house during which Lotter and Nissen pulled down Brandonâs pants, the following exchange took place:
*642 Q. [A]fter he pulled your pants down and seen you was a girl, what did he do? Did he fondle you any?
A. No.
Q. He didnât fondle you any, huh. Didnât that kind of amaze you? ... Doesnât that kind of, ah, get your attention somehow that he wouldâve put his hands in your pants and play with you a little bit?
Q. [Y]ou were all half-ass dmnk____I canât believe that
if he pulled your pants down and you are a female that he didnât stick his hand in you or his finger in you.
A. Well, he didnât.
Q. I canât believe he didnât.
While interviewing Brandon regarding the rapes, Lauxâs statements and questions included the following: âSo they got ready to poke youâ; â[t]hey tried sinking it in your vaginaâ; âSo then after he couldnât stick it in your vagina he stuck it in your box or in your buttocks, is that right?â; â[D]id it feel like he stuck it in very far or not?â; âDid he tell you anything about this is how they do it in the penitentiary?â; âWas he enjoying it?â; âDid he think it was funny?â; âDid he play with your breasts or anything?â; and âWell, was he fingering you?â
Laux confronted Brandon regarding the position of her legs during the sexual assault by Nissen in the following manner:
Q. How did you have your legs when he was trying to do that?
A. He had them positioned on each side and he was positioned in between my legs.
Q. You had your legs, ah, your feet up around his back or did you just have them off to the sides or what?
A. I had one foot on the floor and the other on the seat.
Q. He had you on the back seat and you had one leg on the seat the one leg up up over the front seat or where?
A. One leg on the floor and the other just laying [sic] on the seat not on top of the guy.
Q. You had one leg on the back seat and one leg laying [sic] on the floor. Now just earlier when I asked you, you *643 said you had one leg up around him and one leg over the seat.
A. No, I didnât.
Q. Yeah, because I can play it back for you.
A. Then play it back because I donât understand it.
After the above exchange took place, Laux asked Brandon no further questions about the position of her legs. The tape-recorded interview shows that Brandonâs description of the position of her legs during the rapes was in fact consistent.
The following exchange occurred when Laux questioned Brandon about Lotterâs sexually assaulting her:
Q. After he got his pants down he got a spread of you, or had spread you out, and he got a spread of you then, then what happened?
A. When he finished he got out of the car and got back in the driverâs door.
Q. Well, how did, ah, letâs back up here for a second. First of all you didnât say anything about him getting it up. Did he have a hard on when he got back there or what?
A. I donât know. I didnât look.
Q. You didnât look. Did he take a little time working it up, or what? Did you work it up for him?
A. No, I didnât.
Q. You didnât work it up for him?
A. No.
Q. Then you think he had it worked up on his own, or what?
A. I guess so, I donât know.
Q. You donât know.... Did, when he got in the back seat you were already spread out back there ready for him, waiting on him.
A. No, I was sitting up when he got back there.
Laux questioned Brandon about her prior sexual experience in the following manner:
Q. And you have never had any sex before?
A. No.
Q. How old are you?
A. 21.
*644 Q. And if youâre 21, you think youâd have, youâd have, trouble getting it in?
A. Who me?
Q. Yeah.
A. I guess so. He was.
Laux further asked questions regarding Brandonâs gender identity crisis such as, âDo you run around once in a while with a sock in your pants to make you look like a boy?â At one point during the interview, the following exchange took place:
Q. Why do you ran around with girls instead of, ah, guys being you are a girl yourself?
A. Why do I what?
Q. Why do you run around with girls instead of guys beings youâre a girl yourself? Why do you make girls think youâre a guy?
A. I havenât the slightest idea.
Q. You havenât the slightest idea? You go around kissing other girls? .... [T]he girls that donât know about you, thinks [sic] you are a guy. Do you kiss them?
A. What does this have to do with what happened last night?
Q. Because Iâm trying to get some answers so I know exactly whatâs going on. Now, do you want to answer that question for me or not?
A. I donât see why I have to.
Q. Huh?
A. I donât see why I have to.
Olberding: You, you donât have to answer. Itâs, this is all voluntary information.
Laux: The only thing is if it goes to court, that answer, that question is going to come up in court and Iâm going to want an answer for it before it goes to court. See what Iâm saying? Iâm trying to have the answer there so we can try to avoid that question if itâs not the answer I want to hear.
Brandon: âCause I have a sexual identity crisis.
Q. Your what?
A. I have a sexual identity crisis.
Q. You want to explain that?
A. I donât know if I can even talk about it... .
*645 Brandon agreed to file complaints against Lotter and Nissen and agreed to testify against them. At the conclusion of the interview, Laux told Brandon, âIâm not trying to make it rough on you, but Iâve got to have the information that we need and the only way by getting that is asking some very personal questions.â
Laux and Olberding then went to the location where Brandon claimed the rapes occurred. At that location, they recovered two condoms, a pair of rolled-up socks, and a beer can. These items were collected as evidence.
On December 25 and 26, 1993, statements were taken from Tisdel; Gutierres; Lotterâs girl friend, Rhonda McKenzie; and Tisdelâs sister, Leslie Mayfield. Each of these statements corroborated certain aspects of Brandonâs account of the events of December 25. When Gutierres was at the sheriffâs office on December 25 to give her statement, Laux again referred to Brandon as an âitâ in a conversation with Gutierres.
On December 28,1993, Nissen voluntarily went to the police station and, after being read his Miranda rights, gave a statement to Olberding and Hayes. Nissen admitted that he had pulled Brandonâs pants down to determine her gender. He further revealed that during an argument at his house over Brandonâs lying about her gender, he hit Brandon in the mouth and kicked Brandon in the back. He admitted that he, Lotter, and Brandon were at the location where Brandon claimed the rapes occurred, but denied that he had sexually assaulted Brandon.
On December 29, 1993, Brandon came to the sheriffâs office and identified the socks which were found at the rape scene as hers. The sheriffâs office requested that Brandon return that afternoon for another interview. However, when Brandon arrived at the courthouse that afternoon, Lotter and Nissen, who had not yet been arrested, were outside the courthouse, and Brandon did not go in. Law enforcement did not make any attempt to contact Brandon about the missed interview.
At the time Brandon reported the rapes, Laux was aware that Lotter and Nissen had criminal records. He was aware that Lotter had once escaped from custody in the middle of the day wearing an orange prison uniform and had had to be chased down by deputies. He knew that Lotter had been involved in a scuffle with a Missouri Highway Patrol officer, which resulted *646 in the officerâs drawing his gun on Lotter. Laux knew that people in the community were afraid of Lotter. Laux also knew that Nissen had been incarcerated in the penitentiary.
The sheriffâs office was also aware that Lotter and Nissen had threatened to harm Brandon if she reported the rapes. Gutierres informed Laux that Lotter and Nissen had threatened Brandonâs life if she reported the rapes. Before the interview with Brandon was conducted, Gutierres told Laux that Brandon was âafraid,â âfeared for her life,â and was âscared to deathâ because Lotter and Nissen had threatened Brandonâs life. Tammy Schweitzer, Brandonâs sister, called Laux on December 27, 1993, and informed him that Brandon was afraid that Lotter and Nissen would kill Brandon for reporting the rapes.
After the rapes, Brandon spoke to JoAnn over the telephone on several occasions. On December 25, 1993, Brandon told JoAnn that she was afraid to return to JoAnnâs home in Lincoln because Lotter and Nissen had her address book and would be able to locate her at JoAnnâs home. Brandon decided to stay with her friend Lambert at Lambertâs house in rural Humboldt because Brandon believed that Lotter and Nissen did not know where Lambert lived.
On December 31, 1993, Brandon, Lambert, and Devine, another friend, were found murdered in Lambertâs house. That same day, Lotter and Nissen were arrested for the December 25 sexual assaults on Brandon. Lotter and Nissen were later charged with and convicted of the three murders. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
On January 2, 1994, several of Brandonâs family members, including Schweitzer, went to the sheriffâs office to obtain information regarding Brandonâs death and to retrieve some of Brandonâs personal effects. At that time, they encountered Laux, who called Schweitzer a âbitchâ and asked her âwhat kind of sister did [you] have?â
On April 19, 1994, JoAnn filed a claim under the Political Subdivisions Tort Claims Act. The 6-month period for the county and Laux to respond to the claim expired without a response. JoAnn then withdrew the claim and brought an action against the county and Laux, alleging that the county was negligent by fail *647 ing to protect Brandon and that Lauxâs conduct during the December 25, 1993, interview constituted intentional infliction of emotional distress. The county filed a demurrer to JoAnnâs second amended petition, which was sustained without further leave to amend. On appeal, this court reversed, determining that sufficient facts had been pled to qualify as an exception to the rule that law enforcement officials may not be held liable for failure to protect individual citizens from harm by criminal conduct. See Brandon v. County of Richardson, 252 Neb. 839, 566 N.W.2d 776 (1997) (Brandon I). We determined that if true, the facts pled established that a special relationship was created between Brandon and the county when Brandon went to law enforcement officials and offered to testify and aid the prosecution of Lotter and Nissen. Id. We also determined that JoAnn should have been granted leave to amend her petition with respect to the intentional infliction of emotional distress claim. Id.
JoAnn then filed a third amended petition, and trial to the court without a jury commenced on September 22, 1999. At trial, portions of Lauxâs deposition testimony were admitted and read into evidence. In this testimony, Laux admitted that Brandon told him that Lotter and Nissen had threatened her and that he was aware that Brandon was afraid. At trial, Laux testified that he never offered Brandon special protection from Lotter and Nissen. Laux also testified that his manner of questioning Brandon during the December 25, 1993, interview was due to concerns he had as to whether Brandon was being truthful. He questioned Brandonâs credibility because she had been charged with forgery and had been deceiving people in the community as to her gender and because she was taking a long time to answer questions during the interview. However, Laux admitted that Brandonâs gender identity disorder was not relevant to whether she had been raped.
Laux also testified that Brandon failed to return to the sheriffâs office for the second December 29,1993, interview that had been scheduled for Brandon and that the sheriffâs office believed Brandon had gone back to Lincoln. A dispatcher at the sheriffâs office testified that some time between December 25 and 31, she received a telephone call from Brandon stating that Brandon was going back to Lincoln.
*648 Several law enforcement officers involved in investigating the rapes and surrounding events testified at trial. Olberding testified that Brandon appeared âfrightenedâ and âtraumatizedâ when she arrived for the December 25, 1993, interview. Olberding further stated that when Laux began questioning Brandon, Olberding left the room for a short time because he did not believe further questioning was necessary and âdidnât think it was right to do that.â Olberding testified that he was aware Lotter and Nissen had threatened Brandon, that he believed Brandon was telling the truth during the December 25 interview, and that he believed on December 28 that there was probable cause to arrest Lotter and Nissen. Olberding stated that Brandon was not keeping the sheriffâs office advised of her whereabouts between December 25 and 31. However, Olberding also testified that the sheriffâs office never offered Brandon any protection from Lotter and Nissen if she stayed in Richardson County.
Deposition testimony of John Caverzagie, who was assistant chief for the Falls City Police Department in 1993, was also admitted at trial. Caverzagie listened to the December 25 tape-recorded interview and testified that he believed that âjust about everythingâ Laux said during the interview was âvery unprofessionalâ and agreed that such conduct was outrageous. Hayes, the investigator who was present outside the interview room while the interview was being conducted, read the transcript of the interview and testified that Lauxâs questioning was âintimidatingâ and that he could think of no legitimate reason to question Brandon about her gender identity crisis. Hayes agreed that Lauxâs conduct during parts of the interview indicated that Laux was treating Brandon âas an accused rather than the victim.â
Jack Wyant, a retired Nebraska State Patrol criminal investigator, testified as an expert witness for JoAnn. Wyant testified that in his opinion, based on the information that was available to law enforcement, an attempt should have been made to bring Brandon in for safekeeping if Lotter and Nissen were not arrested. Wyant further testified that even if he felt he was not getting truthful and accurate answers from an alleged rape victim, he could see no reason to be rude or abrasive while questioning the alleged victim.
*649 A prosecutor who had prosecuted numerous sexual assault cases and had worked with law enforcement regarding sexual assault cases testified as an expert witness for the county. In preparing her testimony, the prosecutor reviewed the transcript of the December 25, 1993, interview. However, the majority of the prosecutorâs testimony dealt with her opinion regarding the manner in which the county conducted the overall rape investigation, including whether Lotter and Nissen should have been arrested sooner. The prosecutor was not asked for her opinion and did not render an opinion as to whether Lauxâs conduct during the December 25 interview was extreme and outrageous.
A portion of the prosecutorâs testimony on direct examination specifically related to Lauxâs conduct during the December 25, 1993, interview. That testimony consisted of the following:
âQ. . . . How would you characterize the interview by Sheriff Laux and Teena Brandon?â
A. âMy characterization of the interview was that it appeared to me that he was seeking her story, he was trying to get an idea of her version of events. He was trying to get detailed information from her about the chronology of events as well as what the events were.
âAs I reviewed the transcript of that I found that he certainly used some language that I didnât find particularly appropriate. There were times when it appeared that he was using what I would consider locker room talk and that I think some would find offensive.
âBut with respect to being confrontational necessarily with Teena Brandon, I didnât find that he was, quite frankly, as confrontational as many officers Iâve seen doing interviews with victims of sexual assault.
âI can honestly say that I have interviewed victims of sexual assault prior to trial, prior to preliminary hearings, prior to depositions and have been myself much more confrontational with them about areas where I might feel that they have been inconsistent or where they have given information that seems difficult to understand and may bear on areas where a defense attorney is going to make a big stink so to speak.
*650 âQ. And you mentioned some of the language was not appropriate, could you give us a few examples?
âA. Oh, one that sticks out in my mind is he is asking her about the actual sexual assault itself by either Lotter or Nissen, I donât recall which one, and it may have been with both of them, where he says, okay, youâre in the back, youâre, and I donât recall what he says, he says youâre spread and theyâre getting ready to poke you or something along that line.
âAnd I, those are seemingly not very sensitive terms to use when youâre talking to somebody about an alleged sexual assault. That one stands out in my mind.â
On cross-examination, the prosecutor acknowledged that prosecutors have a different role in the investigation and prosecution of sexual assault cases than do law enforcement officers. The prosecutor gave no testimony indicating that the interviews of sexual assault victims that she had witnessed were conducted within hours of the sexual assault incident. She admitted that she had never interviewed a rape victim immediately after the rape occurred. The prosecutor also testified that she was not informed that Olberding left the interview room at one point due to his disagreement with Lauxâs conduct during the interview. When asked if she would instruct officers to interrogate a rape victim in a manner similar to that used by Laux, the prosecutor stated, âI donât think some of the language he used was what I would suggest to anybody.â
Mario Scalora, a licensed clinical psychologist and assistant professor of psychology at the University of Nebraska at Lincoln, testified as a psychological expert for JoAnn. Scalora had been licensed as a clinical psychologist since 1989 and had worked with 300 to 400 victims of sexual abuse. Scalora reviewed Brandonâs mental health records, Brandonâs criminal record, Brandonâs medical records regarding the emergency room examination performed subsequent to the rapes, police reports relating to the rapes, the entire transcript of the December 25, 1993, interview, and a portion of the tape-recorded December 25 interview. Scalora also conducted interviews with JoAnn and Schweitzer regarding Brandonâs history from infancy up to the time of her death.
*651 Based on this information, Scalora testified that Brandon was the victim of childhood sexual abuse, which had a substantial and negative effect on how Brandon perceived her own sexuality. Scalora testified that Brandon subsequently developed gender identity disorder, which may have been related to her childhood sexual abuse. He further testified that Brandon was âvery negatively impactedâ by the rapes Lotter and Nissen committed upon her. Regarding the impact of Lauxâs conduct during the December 25, 1993, interview, Scalora testified that considering Brandonâs history, Brandon had âvery open emotional soresâ upon arriving at the December 25 interview. When asked for his opinion regarding what impact Lauxâs behavior during the December 25 interview had on Brandon, Scalora testified that âthe interrogation had a significant negative effect on this woman.â Scalora testified that Brandonâs responses during the interview indicated that she believed she was not being taken seriously. Scalora further testified that considering the fact that Brandon had been raped just hours before the interview was conducted, âthat type of interrogation process ... is like pouring ... vinegar on an open wound.â
JoAnn also testified regarding Brandonâs reaction to the December 25, 1993, interview. JoAnn testified that she spoke with Brandon on the telephone almost every day after the rapes. She described Brandon as âemotionally deadâ during those conversations. JoAnn testified that Brandon told her that Laux was âmore concerned about her identity crisis than he was about the rapeâ and that she was âscaredâ of Laux â[bjecause of the way he was towards her.â
JoAnn further testified that she had a close relationship with Brandon. JoAnn described Brandon as an âoutgoing and happyâ child. Schweitzer testified that her and Brandonâs father was killed in a car accident before Brandon was bom and that she and Brandon had a close relationship with their mother because âit was just the three of us all the time, so we had nobody but each other.â Pat Brayman, Brandonâs aunt, testified that Brandon âloved her mom dearly and she let her mother know that she loved her.â JoAnn and Schweitzer testified that Brandon spent every Christmas with her family. A booklet of drawings and photographs documenting Brandonâs life from infancy to young adulthood was admitted into evidence. Photographs in *652 the booklet depict Brandonâs participation in family gatherings and other activities.
JoAnn testified that she began witnessing changes in Brandon at age 17 when Brandon began wearing masculine hair and clothing styles. JoAnn testified that when Brandon began portraying herself as a male, JoAnn discussed this issue with Brandon but often âdidnât know what to say.â JoAnn also attended counseling with Brandon. JoAnn testified that after Brandon began presenting herself as a man, Brandon became more distant from her family but still maintained contact. JoAnn testified that Brandon would call, stop by, or leave a rose in the door for JoAnn.
JoAnn also testified that Brandon was interested in becoming a commercial artist and had applied to the Colorado Institute of Art. After Brandonâs death, JoAnn received a letter that Brandonâs application had been accepted. JoAnn also stated that after the rapes occurred, Brandon told JoAnn that she wanted to come back to Lincoln and âget things back togetherâ and âget her life back.â Brandon told JoAnn that Brandon planned to return to Lincoln on January 3, 1994.
On December 6, 1999, the district court issued a âMemorandum Finding,â determining that the county had a duty to protect Brandon due to the special relationship between the county and Brandon which was created when Brandon agreed to assist the county by testifying against Lotter and Nissen. The court determined that the county was negligent in that it failed to take measures to protect Brandon. The court awarded economic damages of $6,223.20 and noneconomic damages of $80,000 for Brandonâs predeath pain and suffering. However, the court determined that Brandon herself was negligent and that the damage award should be reduced by 1 percent for such negligence. The court did not specifically state how Brandon was negligent. The court further reduced the damage award by 85 percent, allocating that percentage to the intentional torts of Lotter and Nissen. Thus, the court determined that the county was responsible for 14 percent of the noneconomic damages. The court entered judgment against the county for a total of $17,360.97.
The court denied recovery on the intentional infliction of emotional distress claim, determining that Lauxâs conduct was not extreme and outrageous because âthe evidence does not *653 reach such high statusâ and that in addition there was âa failure to prove that [Brandon] sufferedâ as a result of Lauxâs conduct.
The court further determined that âthe major award arises under [JoAnn]âs cause for pre-death pain and suffering.â The court then stated that Brandonâs âhistory does not support likely contributions of money to anyoneâ and that JoAnn, as Brandonâs next of kin, was entitled to ânominal damagesâ for loss of society, comfort, and companionship. Interpreting the order as a whole, we conclude that the award of ânominal damagesâ was in effect an award of zero damages.
JoAnn appeals, and the county cross-appeals.
ASSIGNMENTS OF ERROR
JoAnn claims the district court erred in (1) reducing the damage award by 85 percent due to the intentional torts of Lotter and Nissen; (2) determining that Lauxâs conduct during the December 25, 1993, interview was not extreme and outrageous and that JoAnn failed to prove Brandon suffered severe emotional distress as a result of the conduct; (3) awarding ânominal damagesâ for loss of society, comfort, and companionship; and (4) determining that Brandon was negligent and reducing the damage award by 1 percent due to such negligence.
The county claims the district court erred in determining that the county was negligent.
STANDARD OF REVIEW
To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Essen v. Gilmore, 259 Neb. 55, 607 N.W.2d 829 (2000).
In a bench trial of an action at law, the factual findings by the trial court have the effect of a jury verdict and will not be set aside unless they are clearly wrong. Strategic Staff Mgmt. v. Roseland, 260 Neb. 682, 619 N.W.2d 230 (2000). When reviewing the sufficiency of the evidence to sustain a judgment, every controverted fact must be resolved in favor of the successful party, and such party is entitled to the benefit of every inference that can reasonably be deduced from the evidence. Baldwin v. City of Omaha, 259 Neb. 1, 607 N.W.2d 841 (2000).
*654 ANALYSIS
Allocation of Damages
JoAnn first claims that the district court erred in its application of Neb. Rev. Stat. § 25-21,185.10 (Reissue 1995), by allocating 85 percent of the damages to the intentional torts of Lotter and Nissen, thereby reducing the judgment against the county for noneconomic damages by 85 percent. JoAnn claims the court impermissibly shifted liability from the county, a negligent tort-feasor, to Lotter and Nissen, intentional tort-feasors.
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Philpot v. Aguglia, 259 Neb. 573, 611 N.W.2d 93 (2000). In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Id.
Section 25-21,185.10 provides in relevant part:
In any other action involving more than one defendant, the liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendantâs percentage of negligence, and a separate judgment shall be rendered against that defendant for that amount.
JoAnn claims this section provides for allocation of damages among negligent tort-feasors only and does not allow for such allocation due to the acts of intentional tort-feasors. We determine that JoAnnâs assertion is correct.
Nebraskaâs comparative negligence law, Neb. Rev. Stat. §§ 25-21,185 to 25-21,185.12 (Reissue 1995), applies only to civil actions in which contributory negligence is a defense. § 25-21,185.07. This court has previously recognized that contributory negligence is not a defense to an intentional tort. â â[W]here the defendantâs conduct is actually intended to inflict *655 harm upon the plaintiff, there is a difference, not merely in degree but in the kind of fault; and the defense [contributory negligence] never has been extended to such intentional torts.â â Omaha Nat. Bank v. Manufacturers Life Ins. Co., 213 Neb. 873, 881-82, 332 N.W.2d 196, 202 (1983), quoting William L. Prosser, Handbook of the Law of Torts § 65 (4th ed. 1971). Furthermore, § 25-21,185.10 provides that â[e]ach defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendantâs percentage of negligence . . . .â (Emphasis supplied). Section 25-21,185.10 does not provide for allocation of damages to a defendant for his or her intentional torts. The plain language of Nebraskaâs comparative negligence law does not allow for allocation of damages to intentional tort-feasors.
Negligent and intentional torts are different in degree, in kind, and in societyâs view of the relative culpability of each act. Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997). See, also, Welch v. Southland Corp., 134 Wash. 2d 629, 635, 952 P.2d 162, 166 (1998) (recognizing negligent and intentional torts are of â âwholly different legal realmâ â); Merrill Crossings Associates v. McDonald, 705 So. 2d 560, 562 (Fla. 1997) (negligent acts are â âfundamentally differentâ â from intentional acts); Veazey v. Elmwood Plantation Associates, Ltd., 650 So. 2d 712, 719 (La. 1994) (recognizing intentional torts are of âfundamentally different natureâ than negligent torts). Because of these differences, allowing allocation of damages between negligent and intentional tort-feasors presents practical difficulties. Turner, supra. Fact finders are likely to allocate most, if not all, of the damages to the intentional tort-feasor due to the higher degree of social condemnation attached to intentional, as opposed to negligent, torts. Id. Thus, allocation of a percentage of the damages to an intentional tort-feasor reduces the negligent partyâs incentive to comply with the applicable standard of care. Id. See, also, Veazey, supra. Furthermore, it would be irrational to allow a party who negligently fails to discharge a duty to protect to reduce its liability because there is an intervening intentional tort when the intervening intentional tort is exactly what the negligent party had a duty to protect against. Merrill Crossings Associates, supra. See, also, Turner, supra; Kansas State Bank *656 & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991).
Other courts have concluded that allocation of damages to intentional tort-feasors is not allowed under comparative negligence law. See, Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir. 1998); Welch, supra; Merrill Crossings Associates, supra; Turner, supra; Veazey, supra; McLean v. Kirby Co., 490 N.W.2d 229 (N.D. 1992); Kansas State Bank & Tr. Co., supra. Several of these courts have simply determined, as we have, that the plain meaning of their statutes does not authorize allocation of damages to intentional tort-feasors. Whitehead, supra; Welch, supra; Merrill Crossings Associates, supra; McLean, supra.
For these reasons, we determine the trial court erred in allocating 85 percent of the noneconomic damages to the intentional torts of Lotter and Nissen.
Intentional Infliction of Emotional Distress
JoAnn next claims the trial court erred in denying recovery for intentional infliction of emotional distress. JoAnn claims the trial court erred in determining that Lauxâs conduct during the December 25, 1993, interview was not extreme and outrageous and in finding that JoAnn failed to prove that Brandon suffered as a result of Lauxâs conduct.
This court has long held that three e