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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for March 30, 2007

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NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

 

These Bar Events links give you information about upcoming programs and activities:

  • April 3, 2007 - NCLE Teleseminar: LLCs and Insolvency
  • April 3, 2007 - NCLE Lunch and Learn: Employment Immigration Issues
  • April 4, 2007 - NCLE Lunch and Learn: Academic Freedom Issues Facing Institutions Today
  • April 5, 2007 - NCLE Live Webcast: Special Needs Trusts for Individuals with Disabilities
  • April 10, 2007 - NCLE Teleseminar: Update for Attorneys Advising Physicians and Dentists, Part 1
  • April 10, 2007 - Swearing In Ceremony
  • April 11, 2007 - NCLE Teleseminar: Update for Attorneys Advising Physicians and Dentists, Part 2
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Case Summaries
Criminal Law, Statutes, Possession of a Deadly Weapon, Knife

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As possession of a knife is not included amongst the weapons described in the criminal statute setting possession of a deadly weapon as a crime, the Nebraska Supreme Court here affirms a trial judge’s quash of that charge in a motion to quash.

State v. Gozzola, , 273 Neb. 309 (2007)

Supreme Court Headnotes

Statutes:

1.   [Appeal and Error.] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

2.   [Words and Phrases.] Headings, captions, or catchlines supplied in the compilation of statutes do not constitute any part of the law.

Judgments:

1.   [Pleadings:] (Appeal and Error.) Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court.

Criminal Law:

1.   [Statutes:] It is a fundamental principle of statutory construction that penal statutes are to be strictly construed. ••• Possession of a knife by a convicted felon is not made unlawful by Neb. Rev. Stat. § 28-1206(1) (Reissue 1995).

      a.   (Legislature.) In Nebraska, all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to be so.

Date Filed and Case No.: March 30, 2007. No. S-06-965.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar30/s06-965.pdf

Court Appealed From: Appeal from the District Court for Douglas County: Peter C Bataillon, Judge.

Attorneys for the Appeal: Stuart J. Dornan, John Alagaban, and Sara Hulac, Senior Certified Law Student, for State of Nebraska, appellant. Thomas C. Riley and Kelly M. Steenbock for John P. Gozzola, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Stephan, J.

Summary: In this appeal brought pursuant to Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2006), the State takes exception to an order of the district court for Douglas County sustaining John P. Gozzolas motion to quash that portion of an information which charged him with being a felon in possession of a deadly weapon (§ 28-1206(1)). The issue presented in this appeal which the Nebraska Supreme Court decided was whether possession of a knife by a convicted felon violates § 28-1206(1).

Did the district court erred in finding that the term deadly weapon as used in § 28-1206(1) does not include a knife? The Court said that the critical language is that of § 28-1206(1), which defines the elements of the offense. Section 28-1206(1) makes it unlawful for a felon to possess any firearm or brass or iron knuckles but says nothing about any type of knife. The general definition of deadly weapon in § 28-109 applies unless the context otherwise requires. Here, wrote the Court, the Legislature could have made the possession of any deadly weapon by a convicted felon unlawful, but it chose to proscribe only the possession of any firearm or brass or iron knuckles. “Thus, in the context of § 28-1206, the phrase deadly weapon includes only those weapons specifically described in subsection (1) of the statute. It is a fundamental principle of statutory construction that penal statutes are to be strictly construed. The expansive construction of § 28-1206 urged by the State would violate this principle” they wrote.

Conclusion: The Court found that the information broadly charged Gozzola with possession of a deadly weapon to wit: a knife, brass or iron knuckles, or any other deadly weapon. However, as noted in the opinion, the parties stipulated that Gozzola possessed only a knife. Because possession of a knife by a convicted felon is not made unlawful by the plain language of § 28-1206(1), the district court did not err in sustaining the motion to quash and dismissing the charge. EXCEPTION OVERRULED.


Workers' Compensation, Exclusive Remedy

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In this review of a tort action, which had been dismissed because the defendant was also an employer who had compensated plaintiff/employee in a Worker’s Compensation case for both the work injury and the subsequent injury plaintiff/employee suffered while being treated by employer/defendant for the work related injury, the Nebraska Supreme Court affirms. The Court found that the provisions of the Workers' Compensation Act provide the exclusive remedy as a matter of law.

Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300 (2007)

Supreme Court Headnotes

Summary Judgment.

1.         Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

Workers’ Compensation.

1.         If an injury arises out of and in the course of employment, the Nebraska Workers’ Compensation Act is the injured employee’s exclusive remedy against his or her employer. ••• If workers' compensation coverage exists because the injury arose out of and in the course of employment, then the provisions of the Workers' Compensation Act provide the exclusive remedy as a matter of law. ••• An injured worker may recover workers' compensation benefits for a new injury or an aggravation of a compensable injury resulting from medical or surgical treatment of a compensable injury, even though the new injury was not incurred while performing work duties.

Torts:

1.         [Employer and Employee.] According to the “dual capacity" doctrine, an employer may become liable to an employee in tort if, with respect to that tort, the employer occupies a position which places upon it obligations independent of and distinct from its role as an employer.

Date Filed and Case No.: March 30, 2007. No. S-05-1306.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar30/s05-1306.pdf

Court Appealed From: District Court for Lancaster County: Jeffre Cheuvront, Judge.

Attorneys for the Appeal: Jason G. Ausman for Lyla F. Bennett, appellant. Travis P. O’Gorman for Saint Elizabeth Health Systems, d.b.a. Saint Elizabeth Medical Center, appellee.

Justices: Heavican, C.J., Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Not Participating: Wright, J.

Authored By: Mlller-Lerman, J.

Summary: Lyla F. Bennett was employed by Saint Elizabeth Health Systems d.b.a. Saint Elizabeth Medical Center (Saint Elizabeth) when she sustained an injury to her left shoulder that was compensable under the Nebraska Workers’ Compensation Act. Following surgery, Bennett underwent a course of physical therapy at Saint Elizabeth. Bennett alleged that the physical therapy was negligently performed and resulted in an additional injury to her left shoulder. Bennett received workers’ compensation benefits for the initial injury and the consequential injury. Bennett filed a medical malpractice action against Saint Elizabeth in the district court for Lancaster County, seeking damages attributable to the consequential injury. Saint Elizabeth moved for summary judgment, claiming that Bennett’s exclusive remedy for the consequential injury was under the Workers’ Compensation Act. The district court agreed, sustained Saint Elizabeth’s motion, and dismissed the case. Bennett appealed.

Did the district court erred in applying the Workers’ Compensation Act’s “exclusivity doctrine”? In urging the Nebraska Supreme Court to reverse the district court’s decision, Bennett did not dispute that she is entitled to workers’ compensation benefits for both the initial injury and the injury sustained during physical therapy, and she further acknowledges that she has received workers’ compensation benefits covering the medical care for both injuries. Instead, Bennett argued that because the second injury to her shoulder occurred while she was a patient receiving medical treatment from Saint Elizabeth, she should be permitted to sue the hospital for additional damages in tort. Saint Elizabeth urged the Court to affirm, arguing that Bennett’s injuries are covered by the Workers’ Compensation Act and that therefore, Bennett’s malpractice action is barred by the exclusivity provisions of the Workers’ Compensation Act. Guided by the provisions of the Workers’ Compensation Act and its jurisprudence thereunder the Court noted that given the provisions of §§ 48-112,48-111, and 48-148 of the Workers’ Compensation Act, it has stated that if an injury arises out of and in the course of employment, the Workers’ Compensation Act is the injured employee’s exclusive remedy against his or her employer.

Given the foregoing principles, the operative issue in this case is one of coverage. Here, there is no dispute that at the time Bennett allegedly reinjured her left shoulder, she was pursuing rehabilitation for her initial injury and was not performing any work duties. Reviewing a Nebraska Court of Appeals decision, Smith v. Goody ear Tire & Rubber Co., 10 Neb. App. 666, 636 N.W.2d 884 (2001), the Nebraska Supreme Court agreed with their reasoning and applied it here. The Court concluded that Bennett’s consequential injury to her left shoulder is covered under the Workers’ Compensation Act and that her exclusive remedy for this injury is, therefore, under the Workers’ Compensation Act and not in tort. At the time Bennett allegedly reinjured her left shoulder, she was receiving physical therapy for her original injury, which was work related. There is no inference in the record that Bennett’s physical therapy was an unnecessary or unreasonable treatment for her initial injury. Because Bennett would not have undertaken the physical therapy to her left shoulder but for the original compensable injury to that shoulder, the consequential injury to the left shoulder is related to her employment, and therefore, it is a covered injury under the Workers’ Compensation Act. Saint Elizabeth is liable under the Workers’ Compensation Act for both the initial injury and the consequential injury. As a matter of law, because the consequential injury is covered, Bennett’s exclusive remedy for this injury is under the Workers’ Compensation Act, and recovery is not available in a medical malpractice action against Saint Elizabeth.

Would the Nebraska Supreme Court ignore the exclusivity provisions of the Workers’ Compensation Act and permit her to proceed in district court with an additional action against Saint Elizabeth under a “dual capacity doctrine”? Bennett specifically urged the Court to adopt either the “dual-capacity” or the “dual persona” doctrine. "According to the ‘dual capacity’ doctrine, an employer may become liable to an employee in tort if, with respect to that tort, the employer occupies a position which places upon it obligations independent of and distinct from its role as an employer.” Johnston v. State, 219 Neb. 457, 461, 364 N.W2d 1, 4 (1985). The Court noted that according to some authorities, the “dual capacity” doctrine has generally been discredited. Instead, Professor Larson proposes a different term, the “dual persona doctrine,” under which “[a]n employer may become a third person, vulnerable to tort suit by an employee, if—and only if—it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.” Regardless of the term used, the Court ruled that given the facts presented herein and the applicable law, neither doctrine would apply in the instant case.

Conclusion: The Court found that the district court correctly concluded that Bennett’s medical malpractice action was barred by the exclusivity provisions of the Workers’ Compensation Act, thus entitling Saint Elizabeth to summary judgment. AFFIRMED.