LINCOLN — The Nebraska Supreme Court has upheld a $1 million award for a man paralyzed in a car wreck that resulted from a high-speed chase with a sheriff's deputy.
The high court ruled Friday that Brian J. Werner was an “innocent third party” as the passenger in a car that was fleeing authorities. As a result, the court upheld the financial judgment against Platte County for a crash that left Werner paralyzed from the waist down.
The county argued that District Judge Robert Steinke erred in finding that Werner was an innocent third party because there was a dispute over who was driving the night of the crash.
Werner, 33, of Humphrey, Neb., also was found at the crash scene with methamphetamine and two drug pipes in his possession.
But the high court said there was sufficient evidence to show that Werner was not the subject of the deputy's pursuit.
The case unfolded in October 2008 when Werner, after leaving a Humphrey bar, accepted a ride from an acquaintance named Joey Korth. The men drove around for a couple of hours, drinking beer in the car.
At 2 a.m., a sheriff's deputy clocked the car exceeding the speed limit on Nebraska Highway 91 and attempted to make a stop. The deputy testified that he could not identify the driver or even tell there was a passenger in the car.
The fleeing car reached speeds of 110 mph. When it reached a spot where the blacktop turned to gravel, the car flipped end-over-end, ejecting the driver and the passenger — so it wasn't clear to investigators who had been driving.
Korth was severely injured in the crash and was in a semi-vegetative state at the time the lawsuit was filed, according to the Associated Press.
At trial, Werner testified that he was the passenger and had repeatedly asked Korth to let him out after the chase started. A rescue squad member who tended to a dazed Werner said he repeatedly stated that Korth had been “going too fast.”
The county objected to the rescue worker's testimony, calling it hearsay.
The high court said Werner's statements at the crash scene were “excited utterances,” which fall under a legal exception that allows them as hearsay evidence.
“Excited utterances are admissible because a startling event may produce spontaneous statements that are reliable, in that they are 'free of conscious fabrication,'” said Judge William Connolly, who wrote the high court's opinion.
The Supreme Court also said the lower court's finding of Werner as an innocent third party was correct. The high court determined that the deputy intended to pull over the car for speeding and that the target of the deputy's actions was the driver, not the passenger.
In addition, to qualify as an innocent party, the passenger must not have encouraged the driver to flee. The court found Werner's testimony credible when he said he repeatedly asked the driver to let him out of the car.
The county said Werner was subject to arrest for drugs and could not be deemed “innocent.” A court check of Werner revealed he has seven criminal convictions on his record, including a felony meth charge and three drunken driving incidents.
“We agree that Werner was not 'innocent' as that term is ordinarily understood,” Connolly wrote. “But the phrase 'innocent third party' is a term of art under the statute, and the ordinary meaning of 'innocent' does not apply.”
Contact the writer: