Opinion
No. A-96-1241.
Filed September 15, 1998.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the verdict, 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 reasonably be deduced from the evidence. 2. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. 3. Trial: Witnesses. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. 4. Trial: Expert Witnesses. Determining the weight that should be given expert testimony is uniquely in the province of the fact finder. 5. Trial: Evidence: Videotapes: Appeal and Error. Where the appellate court reviews videotaped testimony and evidence, and the standard of appellate review is not de novo, the appellate court is not free to substitute its view of the evidence for that of the trier of fact.
Appeal from the District Court for Douglas County: JOHN D. HARTIGAN, JR., Judge. Affirmed.
John K. Green for appellant.
James S. Jansen, Douglas County Attorney, and Christine A. Lustgarten for appellee.
MILLER-LERMAN, CHIEF Judge, and IRWIN and INBODY, Judges.
Anthony L. Nichols, a former inmate at the Douglas County Correctional Center (DCCC), brought an action under the Political Subdivisions Tort Claims Act against the County of Douglas, alleging that he suffered injuries after falling while attempting to get into his upper bunk bed at DCCC. In a bench trial, the district court for Douglas County found that DCCC was not liable to Nichols for his injuries. On appeal, Nichols essentially argues that the trial court erred in failing to determine that DCCC was negligent in designing, installing, maintaining, and repairing the upper bunk in room 8 of module F prior to Nichols' fall from the upper bunk on January 3, 1991. Nichols also argues that DCCC knew or should have known that the upper bunk bed in his cell was in need of repair prior to his fall on January 3. For the reasons set forth below, we affirm.
BACKGROUND
On April 25, 1996, Nichols filed a second amended petition pursuant to the Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13-901 to 13-926 (Reissue 1987). In his petition, Nichols stated that he is currently residing in Georgia and that he is seeking damages for injuries he sustained on January 3, 1991, while housed at DCCC awaiting trial on criminal charges. Nichols alleged that he suffered injuries when his assigned bunk collapsed as he attempted to get into the bunk. Nichols alleged that his injuries were caused by DCCC's negligence and that DCCC had been negligent in failing to (1) properly inspect his bunk to ensure that it was in proper and safe working order, (2) ensure that his room was properly equipped and that his bunk was in useable condition, (3) properly repair and maintain the bunk in his room, (4) adequately design and construct the upper bunks, and (5) install an adequate method of ingressing and egressing the upper bunks. Further, Nichols alleged that DCCC knew or should have known that his bunk was not in proper and safe working order or useable condition. Nichols alleged that as a result of DCCC's negligence, he has suffered and will continue to suffer mental anguish and pain and suffering and that he must continue to undergo medical care and treatment. Nichols requested judgment against DCCC for general and special damages as well as interest and costs.
On April 30, 1996, DCCC filed a demurrer to Nichols' second amended petition, which after hearing, the district court denied in a journal entry dated May 14, 1996.
On May 23, 1996, Nichols filed a motion to bifurcate the action on the issues of liability and damages, which was subsequently granted by the district court.
On June 3, 1996, DCCC filed an answer to Nichols' second amended petition. In its answer, DCCC admitted that Nichols had fallen while getting into his bunk, but denied having any knowledge of any alleged problem with Nichols' bunk or any of the bunks adjacent to the one in Nichols' room or notice of the same. DCCC denied that it had been negligent in any of the respects alleged by Nichols in his petition.
A trial on the issue of liability was set for July 15 and 16, 1996. At this bench trial, the evidence showed the following:
Initially, the cells at DCCC were single-occupancy cells. In the early 1980's, the cells at DCCC were converted to double-occupancy cells by the addition of 58 upper bunk beds. Although a bid was requested from a private professional contractor, Vince Bird Construction, DCCC did not accept this bid, and DCCC, in cooperation with the Douglas County Department of Public Properties, built the upper bunks on their own. The record shows that the county built the upper bunks based on the design submitted by the outside professional contractor.
The upper bunks were constructed of wood and attached to the wall with "all-threads," which are 5/8-inch or 3/4-inch bolts that are 12 to 16 inches long. These bolts run through the concrete block walls of each cell into the upper bunk bed frame in both adjacent rooms. The frame of each bunk was enclosed in plywood, and the plywood was glued to the bunk bed frames with "PL400," an industrial-strength compound.
In most cells at DCCC, including room 8 of module F, in addition to the beds, there is a sink, a toilet, a desk, and a stool in front of the desk which is bolted to the floor. The upper bunk is approximately 53 to 54 1/2 inches off the ground, while the lower bunk is approximately 19 to 20 inches high. Typically, the inmates use the bottom bunk, the desk, or the stool to access the upper bunk. The desks are 29 to 30 inches high, while the stools are 18 or 19 inches high. The stools are approximately 9 to 10 inches away from the bunk beds. Evidence produced at the hearing indicated that a faceplate was bolted either to the wall near the beds or to the beds themselves. The plate allows an inmate to step up on the edge of the plate toward the wall and get into the upper bunk with safety. The evidence showed that DCCC did not install stepladders or moveable stools in the cells to assist inmates in reaching the upper bunk for fear that the inmates would use such items as weapons or as a means to commit suicide.
William McPhillips, the deputy warden of administration at DCCC at the time of Nichols' accident, testified that he had been employed at the facility since 1978 and that since that time, an inmate had fallen from his bunk a couple of times at most. McPhillips stated that there had been no problems between inmates potentially caused by one inmate's using another inmate's lower bunk to gain access to his upper bunk.
The evidence shows that DCCC is inspected by the Jail Standards Board on a yearly basis and that DCCC was in full compliance during 1990 and 1991. The Jail Standards Board did not comment on the construction of bunk beds or require that the bunk beds be inspected on a routine basis. Specifically, regarding inspections of inmates' cells, the Standards for Jail Facilities, 81 Neb. Admin. Code, ch. 6, § 003.02A (1987) states, "Facility employees shall carefully inspect cells, cell doors, bars, windows, and doors leading into and out of housing areas daily to insure that all are in proper and safe working order."
Regarding the inspection of the windows, jail personnel testified that they would have to place their weight on the upper bunk to check the window. One corrections officer testified that it is not possible to reach the windows without placing some pressure on the top bunk. DCCC records show that the windows in Nichols' room were checked on December 29 and 31, 1990, and January 1, 1991.
Nichols testified that he had been incarcerated in DCCC as a pretrial detainee from August 24, 1990, to April 11, 1991. Nichols testified that initially he was housed in room 13 of module F and that around Thanksgiving weekend of 1990, he was transferred to room 8 of module F and assigned to the top bunk. Nichols testified that on January 3, 1991, at about 1:30 a.m., he got up to use the restroom and that when he attempted to get back into bed, he used the stool by the desk to pull himself up to the upper bunk. Specifically, Nichols testified that he stepped up on the stool, leaned forward, braced himself, turned, and attempted to place his "rear end onto the bunk," essentially doing a "sort of a half pirouette" to get into the bed. Nichols testified that as he did so, his bed gave way and he fell onto the ground. Nichols testified that he was knocked unconscious from the fall and that when he woke up in the hospital, he felt pain in the left side of his head and the right side of his lower back. Nichols testified that during the approximately 5 weeks he used the top bunk, he never noticed that his bed was loose.
Nichols called an expert in design and renovation of correctional facilities, Randall Atlas, who testified on Nichols' behalf by videotape. The videotaped testimony and a transcription thereof are in the record on appeal. Atlas testified that the top bunks should have been constructed of steel or metal, not wood. In particular, Atlas testified that the fact that no lock washers were used when bolting the bed to the steel rod was substandard construction. Atlas stated that DCCC did not provide an adequate means for the inmates to access the upper bunks. Atlas discussed the advisability of alternate methods of access to bunk beds, including stools and ladders. Atlas also recommended that DCCC attach a "solid plate" or "something fairly comparable in wood" to either the lower bunk bed or to the wall for the inmates' use in getting to the upper bunk. He did not opine that the existing faceplate was inadequate, as he did not appear familiar with its existence. On cross-examination, Atlas acknowledged that although he had reviewed documents forwarded by Nichols' counsel, he had not personally viewed any of the cells at DCCC, inspected the bunk beds, or talked to any of DCCC's employees or to Nichols. Additionally, Atlas admitted that he did not know whether the stools by the desk were moveable or fixed. Atlas did not know how high the stools were or the height of the beds. Atlas hypothesized that the stools in the cells were 12 to 18 inches from the bed, whereas the evidence shows that the stools are 9 to 10 inches away.
Ralph Hilt, the DCCC employee who repaired Nichols' bunk after Nichols' fall on January 3, 1991, testified that upon checking the upper bunk in room 8 of module F, the upper bunk looked fine, but that when pressure was applied to the bed, he found that the upper bunk was loose on the left corner, with approximately a 1/2-inch or 3/4-inch movement on the left-hand side. Hilt testified that he was aware that two or three other bunks built like Nichols' had become loose and had required repair. Hilt was not asked whether any inmates had been injured because of the loose bunks. Specifically, the evidence shows that most recently, DCCC's employees had repaired the upper bunk in room 1 of module D on December 9, 1990, because the top bunk had become loose from its mounting. However, unlike the upper bunk in room 8 of module F, the upper bunk in room 1 of module D is not connected to the bunks in the adjacent rooms, but, rather, connected only to one other upper bunk bed because room 1 of module D is at the end of a row.
Regarding room 8 of module F, Donald Howland, the inmate who was assigned to the upper bunk in room 8 of module F before Nichols, gave testimony in a deposition. Howland testified that while he resided in room 8 of module F, the upper bunk was very unstable and loose, not just on the left side, but on both the left-hand and the right-hand sides. Howland testified that he brought the condition of the upper bunk to the attention of the guards on several occasions and that DCCC engineers had inspected the bunk, but did not repair the upper bunk before he left the room. There was no evidence of Howland's complaints in any of DCCC's records, nor is there any record of any repair work done on the upper bunk in room 8 of module F prior to Nichols' accident. Evidence on this record indicates that as a general rule, maintenance personnel at DCCC did repair work in a timely manner, shortly after being notified of a maintenance problem.
In a seven-page order dated October 31, 1996, the district court dismissed Nichols' petition with prejudice. The district court concluded that DCCC was not liable because (1) the design and installation of the upper bunk beds met the standard of care for correctional facilities, (2) DCCC's inspection of the inmates' beds met or exceeded the standard of care for correctional facilities, (3) neither Nichols nor DCCC was aware of the fact that Nichols' bed was defective in any way, and (4) DCCC's decision not to place footstools or ladders on the bunk beds met or exceeded the standard of care applicable to correctional facilities. Nichols appeals.
ASSIGNMENTS OF ERROR
Essentially, Nichols argues that the trial court erred in failing to determine (1) that DCCC was negligent in designing, installing, maintaining, and repairing the upper bunk in room 8 of module F prior to Nichols' fall from the upper bunk on January 3, 1991, and (2) that DCCC knew or should have known that Nichols' bunk bed was in need of repair prior to January 3.
STANDARD OF REVIEW
In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the verdict, 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 reasonably be deduced from the evidence. Wasiak v. Omaha Pub. Power Dist., 253 Neb. 46, 568 N.W.2d 229 (1997).
On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts. Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997).
ANALYSIS
On appeal, Nichols argues that the trial court erred in failing to determine that DCCC was negligent in designing, installing, maintaining, and repairing the upper bunk in room 8 of module F prior to Nichols' fall from the upper bunk on January 3, 1991, and that DCCC knew or should have known that Nichols' bunk bed was in need of repair prior to January 3. DCCC argues that the trial court's factual findings were not clearly wrong and that the district court's order should be affirmed. After considering the evidence in a light most favorable to DCCC and resolving every controverted fact in DCCC's favor, we find that the trial court's findings of fact were not clearly wrong and affirm the decision of the district court.
In its order dated October 31, 1996, the trial court made lengthy and detailed findings. The trial court summarized the testimony of the various witnesses. Thus, for example, with respect to Howland's testimony, the trial court summarized the evidence given by Howland and stated, inter alia, that the testimony of Howland was not useful regarding Nichols' issues. Similarly with respect to Nichols' expert, Atlas, the trial court summarized the opinions Atlas rendered regarding construction and maintenance and Atlas' opinion that footstools or ladders should have been provided to the inmates. Atlas also recommended the attachment of a "solid plate" or "something fairly comparable in wood," but did not comment on whether or not the existing faceplate was inadequate. The trial court observed that Atlas did not mention any treatises or other scholarly works in connection with his opinions but did not reject Atlas' opinions on that basis. The trial court agreed with Atlas in observing that "no doubt . . . a stronger bed could have been constructed, [but] I cannot say that the DCCC was negligent in failing to install stronger frames in this instance." In summarizing other testimony, the trial court noted that the evidence presented by the county showed that "over a 15-year period, no structural failures had occurred."
A review of the record shows there is evidence that the bunk beds at DCCC were well constructed, were secured by connecting the bunk beds to other bunk beds in adjacent rooms, and were assembled using PL400, an industrial-strength compound, and that their design was based on the drawings submitted by outside professionals. Evidence shows that the inmates were provided several means to access their upper bunks, including the desk, the stool, the lower bunk, and a faceplate attached either to the wall near the beds or to the beds themselves. There is convincing evidence that DCCC did not install stepladders or moveable stools to access the beds for valid safety and security reasons.
Although Nichols contends that DCCC should have known that his bunk bed was loose, he testified that he never noticed that his bunk was loose prior to January 3, 1991. Although Atlas opined that fights might occur if an inmate used another inmate's bed as a stepping stool, evidence produced by DCCC shows that inmates routinely did so without creating problems. Similarly, although there is no specific rule mandating that DCCC inspect the bunk beds on a routine basis, the evidence shows that DCCC employees of necessity checked the inmates' beds and the beds' stability while checking the adjacent windows in the inmates' cells. In this regard, we note that DCCC employees testified that they were unable to check the windows without placing some force or some of their weight on the upper bunk beds. The record shows that the windows in room 8 of module F were checked on December 29 and 31, 1990, and January 1, 1991. Additionally, since the upper bunk beds were installed in the early 1980's, very few accidents have occurred. McPhillips testified that at most, two inmates have fallen off their beds since he started to work at DCCC in 1978. McPhillips did not state the cause of these accidents.
[3-5] To the extent that expert testimony was required by Nichols to establish a lack of care by DCCC and without commenting on the required standard of care, Nichols produced Atlas, who was qualified as an expert and rendered opinions summarized above in this opinion. Taking the trial court's opinion in its entirety, it is clear from the trial court's findings and conclusions that the trial court did not credit Atlas' opinions and that his opinions were outweighed by other evidence presented by the county, inter alia, the testimony summarized above and the bunk bed design, which was based on the design submitted by the outside professional contractor. In a bench trial of a law action, the court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997). Similarly, determining the weight that should be given expert testimony is uniquely in the province of the fact finder. Id. Under Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994), where the appellate court reviews videotaped testimony and evidence, and the standard of appellate review is not de novo, the appellate court is not free to substitute its view of the evidence for that of the trier of fact. Thus, in the instant case, regardless of whether or not the appellate court may have given the videotaped testimony of Atlas more weight than did the trial court, this court cannot say as a matter of law that the trial court's determination which, after reviewing all the evidence, fails to find Atlas' opinions persuasive, is clearly wrong.
CONCLUSION
Based on the evidence before it, the district court concluded Nichols did not establish liability. We find no reversible error.
AFFIRMED.