BRANDON V. COUNTY OF RICHARDSON
624 N.W.2d 604 (2001)
NATURE OF THE CASE: Brandon (P) brought an action against County (D) for negligence,
wrongful death, and intentional infliction of emotional distress. The District Court found D
negligent and awarded economic and noneconomic damages. The court then reduced the damage
award, and denied recovery on the intentional tort claim. P sought review, and D filed a
cross-appeal.
FACTS: Teena Brandon, Lisa Lambert, and Phillip Devine were found murdered Lotter and
Nissen were convicted of the murders. Brandon's mother, JoAnn Brandon (P), brought an action
against Richardson County and Sheriff Charles B. Laux (D) for negligence, wrongful death,
and intentional infliction of emotional distress in connection with Brandon's murder and the
events leading up to her death. 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 one's own gender and assumes the characteristics, both behaviorally and
emotionally, of the other gender. 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. Brandon presented herself as a man. Brandon had
obtained a driver's license identifying herself by the name of Charles Brayman. Brandon met
Lana Tisdel. She dated Brandon for approximately 1 month. 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. Lotter and Nissen became
suspicious of Brandon's sexual identity. In an attempt to prove to Tisdel that Brandon was a
female, Lotter and Nissen pulled Brandon's pants down in Tisdel's 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. Eventually on a return to a house, Brandon escaped by kicking out a bathroom
window and ran to the home of Linda Gutierres, Tisdel's mother. 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. D and Deputy Tom
Olberding conducted a tape-recorded interview with Brandon. D had been informed by the
hospital staff that Brandon had been beaten and sexually penetrated. D's statements and
questions included the following: 'So they got ready to poke you'; 'they tried sinking it in
your vagina'; 'So then after he couldn't stick it in your vagina he stuck it in your box or
in your buttocks, is that right?'; 'Did it feel like he stuck it in very far or not?'; 'Did
he tell you anything about this is how they do it in the penitentiary?'; 'Was he enjoying
it?'; 'Did he think it was funny?'; 'Did he play with your breasts or anything?'; and 'Well,
was he fingering you?' D also confronted Brandon over details about her prior sex life and
whether she helped her assailants become erect. He also confronted her over her going around
pretending to be a guy. Brandon's statements were verified by independent witnesses. Nissen
voluntarily went to the police station and, after being read his Miranda rights, gave a
statement admitting that he had pulled Brandon's pants down to determine her gender. He also
admitting hitting her in the mouth and kicking her. 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. The sheriff's office requested that Brandon return that
afternoon for another interview. 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. D 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 in the officer's drawing his gun on
Lotter. D knew that people in the community were afraid of Lotter. Laux also knew that
Nissen had been incarcerated in the penitentiary. The sheriff's office was also aware that
Lotter and Nissen had threatened to harm Brandon if she reported the rapes. On December 31,
1993, Brandon, Lambert, and Devine, another friend, were found murdered in Lambert's 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. When
Brandon's family members, including Schweitzer, went to the sheriff's office to obtain
information regarding Brandon's death and to retrieve some of Brandon's personal effects D
called Schweitzer a 'bitch' and asked her 'what kind of sister did [you] have?' P sued D.
The district court issued a 'Memorandum Finding,' determining that D 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 Brandon's predeath pain and suffering. The court determined that Brandon herself was
negligent and that the damage award should be reduced by 1 percent for such negligence. 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. It denied recovery on the intentional infliction of
emotional distress claim, determining that D's conduct was not extreme and outrageous
because 'the evidence does not reach such high status' and that in addition there was 'a
failure to prove that [Brandon] suffered' as a result of Laux's conduct P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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