## Facts

- Teena Brandon reported to Richardson County law enforcement that John Lotter and Thomas Nissen had beaten and raped him, and he agreed to cooperate and testify.
- Sheriff Charles B. Laux interviewed Brandon shortly after the rape in a hostile, sexually explicit, and demeaning manner that focused on Brandon’s gender identity and sexual practices rather than the assault.
- Laux knew Lotter and Nissen had criminal histories and had made specific threats to kill Brandon after the rape.
- Despite the known threats, the County did not promptly arrest Lotter and Nissen and did not take reasonable protective steps for Brandon (such as warning him, arranging safety measures, or otherwise reducing the risk of retaliation).
- Lotter and Nissen later murdered Brandon; they were convicted for the murders.
- Brandon’s estate sued Richardson County and Laux (official capacity) for negligence/wrongful death and intentional infliction of emotional distress (IIED), and sought damages including a parent’s loss of society.

## Issues

1. Whether a special relationship arose between law enforcement and Brandon creating a duty to take reasonable steps to protect him from identified assailants who had made specific threats.
2. Whether Nebraska comparative negligence principles permitted reducing the County’s negligence liability by allocating fault to intentional tortfeasors (Lotter and Nissen) or to the decedent.
3. Whether Laux’s interrogation and related conduct constituted “extreme and outrageous” conduct sufficient to support an IIED claim.
4. Whether awarding only nominal damages for a parent’s loss of the decedent’s society was legally adequate on this record.

## Decision

- Affirmed the district court’s finding that the County was negligent and that a duty to protect arose from a special relationship under the circumstances.
- Reversed the reduction of the County’s liability based on allocating fault to Lotter and Nissen’s intentional torts; intentional tortfeasors could not be used to reduce a negligent defendant’s liability under the comparative negligence statutes at issue.
- Reversed the finding that Brandon was contributorily negligent because the record contained no evidence supporting any negligence allocation to the decedent.
- Reversed the denial of IIED, holding Laux’s conduct met the “extreme and outrageous” standard, and remanded for further proceedings on IIED damages.
- Reversed the nominal loss-of-society award and remanded for a new determination of appropriate loss-of-society damages.
- Remanded for recalculation of damages consistent with these rulings.

## Legal Principles

- When law enforcement encourages a victim to cooperate in an investigation and testify against identified assailants, and officers are aware of specific threats against that victim, a special relationship may arise creating a duty to take reasonable protective steps.
- The protective duty is one of reasonable care in light of known, concrete risks; it does not require guaranteeing the victim’s safety.
- Nebraska comparative negligence rules at issue did not permit a negligent defendant to reduce liability by apportioning “fault” to intentional tortfeasors.
- A finding of contributory negligence requires evidentiary support; absent evidence of negligent conduct by the plaintiff/decedent contributing to the harm, any percentage allocation is clearly erroneous.
- Under Restatement (Second) of Torts § 46, IIED requires conduct so extreme and outrageous as to exceed all possible bounds of decency; abuse of authority and degrading treatment of a traumatized victim can satisfy the standard.
- Loss-of-society damages in a wrongful-death context must reflect the intrinsic value of a proven parent-child relationship; nominal damages may be inadequate when evidence shows an ongoing familial bond.

## Conclusion

The Nebraska Supreme Court held that a special relationship created a duty for the County to take reasonable steps to protect a cooperating rape victim from known, specific threats; it rejected comparative-fault reductions based on intentional tortfeasors and unsupported contributory negligence, found the sheriff’s interrogation could support IIED, and required a reassessment of both IIED and loss-of-society damages on remand.


Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604 (Neb. 2001)