Opinion
No. A-11-234.
02-07-2012
CURTIS DEWITT, APPELLANT, v. STATE OF NEBRASKA, APPELLEE.
John P. Ellis, of Bradford & Coenen, L.L.C., for appellant. Jon Bruning, Attorney General, and Linda L. Willard for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
DEWITT V. STATE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
John P. Ellis, of Bradford & Coenen, L.L.C., for appellant.
Jon Bruning, Attorney General, and Linda L. Willard for appellee.
IRWIN, SIEVERS, and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Curtis DeWitt was in the custody of the State of Nebraska Department of Correctional Services in 2004 when he was allegedly sexually assaulted by another inmate. DeWitt brought this action for damages against the State of Nebraska under the State Tort Claims Act, alleging that negligence on the part of the State was the proximate cause of his resulting injuries and illnesses. After conducting a bench trial, the district court for Lancaster County found no negligence on the part of the State and entered judgment in favor of the State. DeWitt appeals. Because the findings of the district court are not clearly erroneous, we affirm. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
BACKGROUND
DeWitt was incarcerated with the Nebraska Department of Correctional Services from April 2004 until April 2007. DeWitt testified that prior to his incarceration, he did not have any major medical problems.
DeWitt was unsure of the date of the assault, but thought it was in early August 2004. DeWitt testified that the assault occurred when he was in the shower. Another inmate pinned DeWitt up against the shower and forcibly raped him while two other inmates waited outside the door. According to DeWitt, he immediately reported the rape to Salvador Cruz, a unit manager at the Lincoln Correctional Center. DeWitt testified that he wanted "something done," a report filed, and medical attention. DeWitt testified that Cruz told him that he would handle it and to go back to his room and wait. According to DeWitt, Cruz never set up a medical examination for DeWitt or had DeWitt tested for sexually transmitted diseases.
DeWitt did not immediately tell anyone else about the assault because he did not want other inmates in the prison to think they could "come after [him] because somebody else did" and because he was embarrassed. DeWitt testified that other inmates knew that he had been raped and began taunting him.
DeWitt testified that he began experiencing burning when he urinated, bowel problems, and stomach problems. As time went on, the frequency and intensity of his symptoms increased. DeWitt filed several inmate interview requests for medical treatment. On August 1, 2004, DeWitt filed a request regarding problems with urination; however, according to the records, DeWitt's urinalysis was normal. On August 8, DeWitt was evaluated at a hospital for complaints of nausea, vomiting, and diarrhea. DeWitt did not report that he had been sexually assaulted to the hospital staff at this time.
DeWitt also filed several requests for prescription and over-the-counter medications for heartburn, indigestion, and depression. DeWitt testified he did not experience stomach problems prior to the assault.
In mid-August 2004, DeWitt requested placement in protective custody because he had been threatened by some inmates. At that time, DeWitt was placed on immediate segregation pending protective custody. DeWitt spoke with a caseworker about mental health concerns, including that other inmates were making comments about DeWitt's being sexually involved with another inmate. Again, DeWitt did not mention the sexual assault.
DeWitt's cellmate, Steve Velliquette, testified that it was common knowledge that DeWitt had been sexually assaulted. Velliquette stated that he spoke with Cruz about DeWitt, but his testimony was unclear regarding when the conversation occurred or the exact nature of what he told Cruz.
On August 29, 2004, DeWitt requested medical attention because he was still experiencing burning when he urinated. On September 9, DeWitt requested to be seen for a bump on his genitalia that itched and burned. DeWitt testified that the bump was not present prior to the assault. DeWitt was told it was a fatty cyst, and it is still present.
In October 2004, DeWitt was assigned another cellmate, Jay Bruna, and DeWitt testified that he also discussed the assault with him. While they were cellmates, Bruna observed DeWitt's ongoing symptoms and his repeated requests for treatment. Bruna testified that DeWitt told him that while he was in the general population unit, DeWitt was raped in the shower while two men guarded the door. Bruna also testified that DeWitt told him that he had reported the incident to Cruz. Bruna did not speak with Cruz about DeWitt's condition; however, he did indicate that it was common knowledge that DeWitt had been sexually assaulted.
On November 4, 2004, DeWitt was admitted to the Diagnostic and Evaluation Center at the hospital, but, again, he did not report to the staff that he had been sexually assaulted. He reported being depressed as a result of his parents' divorce and was admitted for suicidal precautions. DeWitt was dismissed on November 7.
On January 27, 2005, DeWitt requested additional medication for diarrhea and blood in his stool; he also requested to be put on a "bland diet" to see if that would help his stomach. On January 29, DeWitt was taken to the Diagnostic and Evaluation Center for severe diarrhea, blood in his stool, vomiting, and other symptoms. On February 1, DeWitt was transferred to the hospital to run tests.
Dr. John Cordova, a general surgeon, first saw DeWitt on February 1, 2005, at the hospital, after he had been admitted into the internal medicine area with abdominal pain and hematuria. Cordova's physical examination of DeWitt revealed significant testicular discomfort, edema of the scrotum, rectal pain, and severe abdominal pain or discomfort. Cordova also observed symptoms consistent with inflammation of the prostate and rectum. A few days later, Cordova and a urologist placed DeWitt under general anesthesia in order to perform a rectal examination. During the procedure, Cordova found mucosal tears in the rectal area and "significant swelling" of his perineum. Gangrene was also found in DeWitt's perineum tissue. The urologist debrided some of the scrotum and perineal tissue. The mucosal tears were treated with antibiotics, anti-inflammatories, and rest.
According to Cordova, mucosal tears are caused by either direct force or distention of the colon, or bowel. Cordova testified the causes of direct force could range from "a very large, hard bowel movement to instrumentation or external trauma applied to it."
After surgery, Cordova was concerned that DeWitt's issues were caused by an external trauma because of the extent and location of the mucosal tears. However, DeWitt "strongly" denied to Cordova that he injured himself or was assaulted by others. When he saw DeWitt on February 1, 2005, Cordova was unable to determine how long DeWitt's symptoms had been present.
DeWitt testified that his symptoms significantly improved after he was returned to the Lincoln Correctional Center. Eventually, DeWitt wrote Cordova a letter acknowledging that he had been raped and that he had been scared and ashamed to admit it previously. DeWitt testified that he did not want anyone to find out because he feared retribution from his attacker. DeWitt testified that until he met with Cordova, he did not realize that his symptoms were related to the sexual assault.
In late February 2005, DeWitt also wrote a letter to Warden Dennis Bakewell notifying him that he had been raped. Warden Bakewell met with DeWitt about his allegations of assault. The investigation was inconclusive as far as the allegations of sexual assault, and DeWitt was placed on protective custody.
Cruz testified that he did not recall DeWitt reporting to him that he had been raped. The first time that he was aware of DeWitt's being raped was after DeWitt's hospitalization in February 2005. Cruz also denied receiving reports from other inmates regarding DeWitt's being assaulted. Cruz testified that DeWitt did report an incident where an inmate verbally abused him and made sexual comments toward him in the shower. Cruz testified that DeWitt also reported that his roommate, Velliquette, was "making comments towards a relationship" and that DeWitt wanted to get away from his room. Based on DeWitt's comments, Cruz moved DeWitt to a separate cell.
On November 5, 2005, DeWitt filed a claim with the State Claims Board regarding the assault and his allegation that Cruz had failed to follow up with his report. On May 25, 2006, the State Claims Board voted to disallow DeWitt's claim, finding that the State was not liable for DeWitt's injuries.
On July 31, 2006, DeWitt filed a negligence action against the State in the district court for Lancaster County. In its answer, the State alleged several defenses, including contributory negligence, assumption of risk, and failure to mitigate damages.
Following a bench trial, the district court found that DeWitt did not meet his burden of establishing a causal link between the assault and his injuries. Even though the district court assumed that the assault occurred, that DeWitt reported the incident to Cruz, and that Cruz failed to follow the established procedure to have DeWitt medically examined, the court found that DeWitt did not establish proximate cause through Cordova's expert testimony. As a result, the district court found that DeWitt did not establish negligence by the State.
The district court also found that DeWitt was aware that he had not been treated for the assault, aware of the policies regarding an assault, aware of the processes for seeking medical attention, and aware that he had not told any of the medical providers he had seen that he should be treated for the assault. The district court found that DeWitt had received "substantial treatment from independent medical professionals and not only did he not report the assault but denied it." The district court, therefore, found that DeWitt failed to exercise due care and was negligent in seeking treatment from the State. As a result, DeWitt's contributory negligence would bar his recovery, even if he had been successful on the underlying negligence claim. DeWitt timely appeals.
ASSIGNMENT OF ERROR
DeWitt asserts (1) that the district court erred in determining that DeWitt had failed to meet his burden of proof regarding proximate cause and (2) that the district court abused its discretion in considering the State's contributory negligence defense because the State failed to properly disclose the factual basis for the defense during discovery.
STANDARD OF REVIEW
A district court's findings of fact in a proceeding under the State Tort Claims Act will not be set aside unless such findings are clearly erroneous. Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009). In reviewing a judgment awarded in a bench trial, the appellate court does not reweigh the evidence, but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Id.
ANALYSIS
A negligence action brought under the State Tort Claims Act has the same elements as a negligence action against a private individual: duty, breach of duty, causation, and damages. Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007). Assuming, without deciding, that DeWitt has established the elements of duty and breach, we look to the issue of causation.
A proximate cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have occurred. Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 17 (2010); Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007). Three basic requirements establish proximate cause. First, the negligence must be such that without it, the injury would not have occurred, commonly known as the "but for" rule. Willet v. County of Lancaster, 271 Neb. 570, 713 N.W.2d 483 (2006). Second, the injury must be the natural and probable result of the negligence. Id. Third, there can be no efficient intervening cause. Id.
The district court found that DeWitt failed to establish that Cruz' inaction, assuming DeWitt's version of the events was accurate, proximately caused DeWitt's injuries.
At trial, Cordova was asked whether the conditions that he treated DeWitt for could have been avoided with earlier treatment. Cordova first indicated that he was unaware of what treatment DeWitt received prior to the hospitalization or when it occurred. Cordova then testified that "[i]n any situation earlier treatment is better than later treatment. . . . The easy answer is the sooner you're seen or treated, the better, the less likely problems will be. But since I don't know what the actual time frame was, I can't answer that." He further admitted that if DeWitt had been put on antibiotics and anti-inflammatories shortly after the assault, it is "much less likely" that the injuries would have been so severe and "less likely" that the injuries would have developed into prostatitis, proctitis, and cystitis. Finally, Cordova stated that he was unable to determine how long DeWitt had the conditions that Cordova observed when he examined him on February 1, 2005.
Based on this testimony by Cordova, the district court determined that DeWitt did not establish a causal link between the assault (which was assumed at that point) and the injury to DeWitt. The court noted that Cordova's general statements that the earlier that someone is treated the less likely problems will occur was not sufficient for DeWitt to meet his burden of proof.
The question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and the court's determination will not be set aside unless clearly wrong. Meyer v. State, 264 Neb. 545, 650 N.W.2d 459 (2002). There is evidence in the record from which a finder of fact could reasonably conclude that proximate cause was not established and that the State was not negligent. Thus, we cannot conclude that the factual findings on which the district court based its judgment were clearly erroneous.
Because we conclude that the district court was not clearly erroneous in finding that DeWitt failed to establish that the State's conduct proximately caused his injuries, we need not address DeWitt's second assignment of error concerning the finding that he was contributorily negligent. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the controversy before it. Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).
CONCLUSION
For the reasons discussed, we affirm the judgment of the district court.
AFFIRMED.