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


To recover for intentional infliction of emotional distress, a plaintiff must prove the following: (1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.


Teena Brandon, who had been sexually abused as a child, developed gender identity disorder, and presented herself as a man. In order to prove that Brandon was a female, Lotter and Nissen beat Brandon, drove her to a remote location, and sexually assaulted her. Brandon eventually escaped, and was transported to a local hospital where she reported that she had been beaten and sexually assaulted. Around noon that same day, Brandon provided a written statement to the Falls City Police Department regarding the rapes. Later that day, Charles B. Laux, the Richardson County Sheriff and Deputy Sheriff Tom Olberding, conducted a tape-recorded interview with Brandon, wherein Laux asked inappropriate questions and made inappropriate remarks. At the time Brandon reported the rapes, Laux was aware that Lotter and Nissen had criminal records. The sheriff's office was also aware that Lotter and Nissen had threatened to harm Brandon if she reported the rapes. Six days after Brandon reported the rape incident, she, together with her two other friends, were found murdered.

Plaintiff Brandon's mother, JoAnn Brandon, as personal representative of Brandon's Estate, brought an action against defendants Richardson County and Sheriff Charles B. Laux for negligence, wrongful death, and intentional infliction of emotional distress in connection with Brandon's murder and the events leading up to her death. More specifically, the suit alleged that the County was negligent by failing to protect Brandon and that Laux's conduct during the interview constituted intentional infliction of emotional distress. The trial court found the County negligent and awarded economic damages of $6,223.20 and noneconomic damages of $80,000, but reduced the award by 85 percent, and denied the emotional distress claim. On appeal, Plaintiff argued that the trial court erred in reducing the damage award by 85 percent due to the intentional torts of Lotter and Nissen, and in determining that defendant Laux's conduct during the interview was not extreme and outrageous and that Plaintiff had failed to prove Brandon suffered severe emotional distress as a result of the conduct.


  1. Was it error for the trial court to reduce the damage award by 85 percent?
  2. Did the trial court err in dismissing the claim for emotional distress?


1) Yes. 2) Yes.


The Court reversed the reduction of damages, as comparative negligence law did not allow for allocation of damages to the acts of intentional tort-feasors. The Court also held that Laux’s conduct was extreme and outrageous, and that the award of zero damages for plaintiff’s loss of society shocked the conscience. The Court therefore remanded to determine whether the deceased suffered severe emotional distress and, if so, whether Laux’s conduct was a proximate cause; to award damages accordingly; and to re-determine damages for plaintiff’s loss of society.

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