Thomas v. Board of Trustees ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/19/2017 09:12 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    THOMAS v. BOARD OF TRUSTEES
    Cite as 
    296 Neb. 726
    LaTanya Thomas, individually and as Special
    A dministrator of the Estate of Tyler Thomas,
    deceased, and K evin Semans, appellants, v.
    Board of Trustees of the Nebraska State
    Colleges and Joshua K eadle, appellees.
    ___ N.W.2d ___
    Filed May 19, 2017.     No. S-16-480.
    1.	 Summary Judgment: Appeal and Error. An appellate court will
    affirm a lower court’s grant of summary judgment if the pleadings and
    admitted evidence show that there is no genuine issue as to any material
    facts 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.
    2.	 ____: ____. In reviewing a summary judgment, an appellate court views
    the evidence in the light most favorable to the party against whom the
    judgment was granted and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    3.	 Summary Judgment. On a motion for summary judgment, the question
    is not how the factual issue is to be decided but whether any real issue
    of material fact exists.
    4.	 ____. Summary judgment is proper when the pleadings and evidence
    admitted at the hearing disclose no genuine issue regarding any material
    fact or the ultimate inferences that may be drawn from those facts and
    that the moving party is entitled to judgment as a matter of law.
    5.	 Summary Judgment: Proof. A party moving for summary judgment
    makes a prima facie case for summary judgment by producing enough
    evidence to demonstrate that the movant is entitled to judgment if the
    evidence were uncontroverted at trial.
    6.	 ____: ____. Once the moving party makes a prima facie case, the
    burden shifts to the party opposing a motion for summary judgment to
    produce admissible contradictory evidence showing the existence of a
    material issue of fact that prevents judgment as a matter of law.
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    THOMAS v. BOARD OF TRUSTEES
    Cite as 
    296 Neb. 726
    7.	 Tort Claims Act: Proof. To recover in a negligence action brought
    under the State Tort Claims Act, a plaintiff must show a legal duty
    owed by the defendant to the plaintiff, a breach of such duty, causation,
    and damages.
    8.	 Negligence. The existence of a duty generally serves as a legal conclu-
    sion that an actor must exercise such degree of care as would be exer-
    cised by a reasonable person under the circumstances.
    9.	 Negligence: Public Policy. Whether a duty exists is a policy question.
    10.	 Negligence. Whether a legal duty exists for actionable negligence is a
    question of law.
    11.	 ____. In a negligence action, in order to determine whether appropriate
    care was exercised, the fact finder must assess the foreseeable risk at the
    time of the defendant’s alleged negligence.
    12.	 ____. Foreseeability is analyzed as a fact-specific inquiry.
    13.	 ____. Small changes in the facts may make a dramatic change in how
    much risk is foreseeable.
    14.	 ____. The law does not require precision in foreseeing the exact hazard
    or consequence which happens; it is sufficient if what occurs is one of
    the kinds of consequences which might reasonably be foreseen.
    15.	 Negligence: Assault. In order to make a risk of attack foreseeable, the
    existing circumstances to be considered must have a direct relationship
    to the harm incurred.
    16.	 Negligence: Judgments. Courts should leave determinations of foresee-
    able risk to the trier of fact unless no reasonable person could differ on
    the matter.
    17.	 ____: ____. Although questions of foreseeable risk are ordinarily proper
    for a trier of fact, courts may reserve the right to determine that the
    defendant did not breach its duty, as a matter of law, if reasonable
    people could not disagree about the unforeseeability of the risk of the
    harm incurred.
    Appeal from the District Court for Nemaha County: Daniel
    E. Bryan, Jr., Judge. Affirmed.
    Vincent M. Powers and Elizabeth A. Govaerts, of Vincent
    M. Powers & Associates, for appellants.
    Ronald F. Krause and Patrick B. Donahue, of Cassem,
    Tierney, Adams, Gotch & Douglas, for appellee Board of
    Trustees of the Nebraska State Colleges.
    No appearance for appellee Joshua Keadle.
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    THOMAS v. BOARD OF TRUSTEES
    Cite as 
    296 Neb. 726
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    In the fall of 2010, Tyler Thomas (Thomas) and Joshua
    Keadle were both students at Peru State College (PSC). On
    December 3, 2010, Thomas went missing. This appeal arises
    from Keadle’s alleged abduction, rape, and murder of Thomas.
    LaTanya Thomas, as the special administrator of Thomas’
    estate, and LaTanya Thomas and Kevin Semans, individu-
    ally as Thomas’ mother and father (collectively the appel-
    lants), filed their fifth amended complaint against the Board of
    Trustees of the Nebraska State Colleges (Board) and Keadle in
    the district court for Nemaha County. The appellants filed their
    action under the State Tort Claims Act and sought damages
    from the Board for the wrongful death of Thomas, Thomas’
    pain and suffering, and LaTanya Thomas’ and Semans’ severe
    emotional distress. The appellants’ causes of action are pre-
    mised upon the Board’s alleged negligence. The appellants
    also sued Keadle, but their claims against Keadle are not
    before the court in this appeal.
    The appellants and the Board each filed a motion for sum-
    mary judgment. After a hearing, the district court filed an
    order in which it granted the Board’s motion for summary
    judgment, denied the appellants’ motion, and dismissed the
    appellants’ fifth amended complaint against the Board with
    prejudice. The appellants subsequently filed a motion for
    default judgment against Keadle, which was granted as to
    liability. Following a jury trial on damages, the district court
    filed an order in which it entered a monetary judgment against
    Keadle based on the jury’s monetary verdict.
    The appellants appeal from the district court’s order in
    which it granted summary judgment in favor of the Board.
    Because we conclude that the risk of Keadle’s alleged acts of
    abducting, raping, and murdering Thomas was not foreseeable
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    THOMAS v. BOARD OF TRUSTEES
    Cite as 
    296 Neb. 726
    as a matter of law, we affirm the district court’s order which
    granted summary judgment in favor of the Board.
    STATEMENT OF FACTS
    In the fall of 2010, Thomas was a freshman student at PSC
    and lived in a dormitory on campus. Keadle was also a student
    at PSC, and he lived in the dormitory room next to Thomas’.
    Keadle was 10 years older than Thomas. Thomas went missing
    and was last seen on December 3.
    In their fifth amended complaint, filed March 19, 2014, the
    appellants alleged that Thomas was abducted, assaulted, and
    murdered by Keadle. Although Thomas’ body has not been
    recovered, she has been declared dead by a Nebraska court.
    In their fifth amended complaint against the Board and
    Keadle, the appellants sought damages for the wrongful death
    of Thomas, for Thomas’ pain and suffering prior to her death,
    and for the severe emotional distress of LaTanya Thomas and
    Semans as Thomas’ parents and next of kin. The appellants’
    causes of action against the Board are premised upon the
    Board’s negligence. Claims against Keadle are not at issue in
    this appeal.
    On May 27, 2014, the Board filed its answer in which it
    generally denied the allegations set forth in the appellants’ fifth
    amended complaint and raised various affirmative defenses.
    On July 2, 2015, the appellants and the Board each filed
    a motion for summary judgment. A hearing on the parties’
    motions was held. Prior to the hearing, the Board filed objec-
    tions and a motion to strike a number of the appellants’
    exhibits, including police reports and transcripts and record-
    ings of police interviews with Keadle. The Board’s objec-
    tions to these exhibits were based on “the grounds of being
    irrelevant, immaterial and constituting hearsay and contain-
    ing hearsay.” At the hearing on the motions for summary
    judgment, the district court stated that it was “going to take
    the exhibits offered subject to these objections and . . .
    the motion.”
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    THOMAS v. BOARD OF TRUSTEES
    Cite as 
    296 Neb. 726
    The evidence received at the hearing is summarized as
    follows: In August 2010, Keadle applied to be a volunteer
    strength and conditioning assistant coach for the PSC wom-
    en’s basketball team. When the athletic director learned that
    Keadle was serving as a voluntary staff member prior to a
    criminal background check, Keadle’s involvement with the
    women’s basketball team was terminated pending completion
    of a check. The human resources office’s criminal background
    check showed minor traffic offenses.
    In September 2010, PSC’s director of housing and security
    received an email from one of his employees informing him
    that according to a sheriff’s deputy, Keadle had been “con-
    victed of robbery of $300 and stealing a purse, in ’09 also has
    other burglary’s [sic] but he was not charged for them, also
    has a forcible fondling (RAPE) on a 18yr old female charge
    on record, but the charges were droped [sic].” The director
    of housing and security testified that he verbally informed
    PSC’s athletic director, PSC’s vice president for enrollment
    management and student affairs, and PSC’s human resources
    director about the contents of the email before Thomas’ disap-
    pearance, but the three administrators deny that they learned
    about the contents of the email prior to Thomas’ disappear-
    ance. A second background check on Keadle conducted by
    the human resources office showed minor traffic offenses
    and a misdemeanor theft conviction. The director of hous-
    ing and security recommended that Keadle be removed from
    the dormitory.
    During this time, PSC’s athletic director contacted the ath-
    letic director at a college Keadle had previously attended for
    a reference regarding Keadle. The athletic director at that
    college did not recommend hiring Keadle, and PSC’s athletic
    director decided that Keadle would not be allowed to serve as
    a voluntary assistant.
    In September 2010, Keadle was charged with two sep-
    arate violations of PSC’s code of conduct based on alle-
    gations of inappropriate sexual behavior toward two female
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    THOMAS v. BOARD OF TRUSTEES
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    students. Neither of the complaints involved Thomas, and
    neither involved physical contact. With respect to the first
    charge, Keadle pled responsible and was issued sanctions that
    consisted of online educational activity and 10 hours of com-
    munity service. Keadle did not complete these sanctions. With
    respect to the second charge, Keadle pled not responsible, and
    after a hearing, he was found not responsible.
    PSC’s vice president for enrollment management and stu-
    dent affairs testified that although Keadle could have been
    dismissed from PSC for failure to complete the sanctions,
    such action would have been out of line with PSC’s general
    past practices. Instead, she testified that generally, when a
    student failed to complete a sanction, a hold was placed on
    the student’s account so the student could not proceed beyond
    that semester.
    In October 2010, Keadle was charged with a third viola-
    tion of PSC’s code of conduct, because he had damaged the
    door to his dormitory room. Keadle failed to attend a meeting
    regarding this incident, and the matter was turned over to the
    Nemaha County authorities. As of December 3, it was being
    processed in the court system.
    On August 19, 2015, the district court filed its order regard-
    ing the parties’ motions for summary judgment. The district
    court did not make specific rulings regarding the Board’s
    objections to the exhibits; instead, the district court stated:
    “The court has excluded from its consideration all irrelevant
    facts submitted and any hearsay that was offered for the pur-
    pose of proving the truth of said facts.” The district court
    first determined that, based on the admissible evidence, the
    Board did not owe a duty to Thomas to prevent Keadle’s
    violent actions, because any such actions occurred off PSC’s
    campus. The district court then determined that even if the
    court had determined there were inferences indicating that
    the crime or part of the crime had occurred on campus,
    the appellants failed to present evidence creating a mate-
    rial issue of fact whether the Board could have or should
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    THOMAS v. BOARD OF TRUSTEES
    Cite as 
    296 Neb. 726
    have foreseen that Keadle would harm Thomas. The district
    court stated:
    While the [appellants’] counsel made a compassionate
    presentation for his clients by assembling various faults
    with Keadle[,] the totality of what is in the record known
    by the Board of Keadle prior to December 3, 2010, falls
    far short of what is necessary to present a factual issue of
    foreseeability to a fact finder. It would be a quantum leap
    in foreseeability.
    Based on the foregoing, the district court granted summary
    judgment in favor of the Board and denied the appellants’
    motion for summary judgment. The district court dismissed
    the appellants’ fifth amended complaint against the Board
    with prejudice.
    Subsequently, the district court granted the appellants’
    motion for default judgment against Keadle and entered default
    judgment against him on the issue of liability. A jury trial was
    held regarding the issue of damages against Keadle, and the
    district court filed an order in which it entered a monetary
    judgment on the jury’s verdict.
    The appellants filed a timely appeal from the district court’s
    August 19, 2015, order which granted summary judgment in
    favor of the Board.
    ASSIGNMENTS OF ERROR
    The appellants claim, consolidated and restated, that the
    district court erred when it (1) granted the Board’s motion for
    summary judgment, (2) determined that the Board did not owe
    a duty to protect Thomas, and (3) determined that Keadle’s
    alleged abduction, assault, and murder of Thomas were not
    foreseeable.
    STANDARDS OF REVIEW
    [1,2] An appellate court will affirm a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from those
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    THOMAS v. BOARD OF TRUSTEES
    Cite as 
    296 Neb. 726
    facts and that the moving party is entitled to judgment as a
    matter of law. Bixenmann v. Dickinson Land Surveyors, 
    294 Neb. 407
    , 
    882 N.W.2d 910
    (2016), modified on denial of
    rehearing 
    295 Neb. 40
    , 
    886 N.W.2d 277
    . In reviewing a sum-
    mary judgment, an appellate court views the evidence in the
    light most favorable to the party against whom the judgment
    was granted and gives that party the benefit of all reasonable
    inferences deducible from the evidence. 
    Id. ANALYSIS The
    appellants generally claim that the district court erred
    when it granted summary judgment in favor of the Board. The
    appellants more specifically claim that the district court erred
    when it determined that the Board did not owe Thomas a duty
    of care and determined that even if the Board owed Thomas
    a duty, no reasonable person would find that it breached such
    duty, because Keadle’s conduct in allegedly abducting, raping,
    and murdering Thomas was not foreseeable. Although our rea-
    soning differs somewhat from that of the district court, for the
    reasons explained below, we reject the appellants’ assignments
    of error.
    [3,4] The principles regarding summary judgment are well
    established. On a motion for summary judgment, the ques-
    tion is not how the factual issue is to be decided but whether
    any real issue of material fact exists. Cisneros v. Graham,
    
    294 Neb. 83
    , 
    881 N.W.2d 878
    (2016). In reviewing a sum-
    mary judgment, an appellate court views the evidence in the
    light most favorable to the party against whom the judgment
    was granted and gives such party the benefit of all reason-
    able inferences deducible from the evidence. Strode v. City
    of Ashland, 
    295 Neb. 44
    , 
    886 N.W.2d 293
    (2016). Summary
    judgment is proper when the pleadings and evidence admitted
    at the hearing disclose no genuine issue regarding any material
    fact or the ultimate inferences that may be drawn from those
    facts and that the moving party is entitled to judgment as a
    matter of law. 
    Id. - 734
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    THOMAS v. BOARD OF TRUSTEES
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    [5,6] A party moving for summary judgment makes a prima
    facie case for summary judgment by producing enough evi-
    dence to demonstrate that the movant is entitled to judgment if
    the evidence were uncontroverted at trial. Cisneros v. 
    Graham, supra
    . Once the moving party makes a prima facie case, the
    burden shifts to the party opposing the motion to produce
    admissible contradictory evidence showing the existence of
    a material issue of fact that prevents judgment as a matter of
    law. 
    Id. [7] To
    recover in a negligence action brought under the State
    Tort Claims Act, a plaintiff must show a legal duty owed by
    the defendant to the plaintiff, a breach of such duty, causation,
    and damages. Ashby v. State, 
    279 Neb. 509
    , 
    779 N.W.2d 343
    (2010). To warrant summary judgment in its favor, a defendant
    must submit evidence showing the absence of at least one of
    these elements. Here, the Board contended, inter alia, that as a
    matter of law, the risk of the alleged abduction, rape, and mur-
    der of Thomas was not reasonably foreseeable, and therefore,
    the Board did not breach its duty. We agree.
    [8-10] In the past, we used the risk-utility test to determine
    the existence of a tort duty. See A.W. v. Lancaster Cty. Sch.
    Dist. 0001, 
    280 Neb. 205
    , 
    784 N.W.2d 907
    (2010). But in
    A.W., we abandoned the risk-utility test and adopted the duty
    analysis set forth in the Restatement (Third) of Torts: Liability
    for Physical and Emotional Harm (2010). We generally held
    that foreseeable risk is an element of the determination of neg-
    ligence, not legal duty. A.W. v. Lancaster Cty. Sch. Dist. 
    0001, supra
    . After A.W., the existence of a duty generally serves as
    a legal conclusion that an actor must exercise that degree of
    care as would be exercised by a reasonable person under the
    circumstances. Moreover, “[d]uty rules are meant to serve as
    broadly applicable guidelines for public behavior, i.e., rules
    of law applicable to a category of cases.” 
    Id. at 212-13,
    784
    N.W.2d at 914-15. Whether a duty exists is a policy question.
    A.W. v. Lancaster Cty. Sch. Dist. 0001, surpa. Whether a legal
    duty exists for actionable negligence is a question of law. See,
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    Pittman v. Rivera, 
    293 Neb. 569
    , 
    879 N.W.2d 12
    (2016); A.W.
    v. Lancaster Cty. Sch. Dist. 
    0001, supra
    .
    We have previously recognized that schools owe their stu-
    dents a duty of reasonable care. See A.W. v. Lancaster Cty.
    Sch. Dist. 
    0001, supra
    . Therefore, in this case, contrary to the
    district court’s conclusion, the Board owed Thomas a duty of
    reasonable care.
    Having determined that the Board owed a duty of reason-
    able care to Thomas, we must review the summary judgment
    evidence as it bears on the remaining elements of negligence.
    We turn first to the issue of what the evidence shows with
    respect to whether the Board breached its duty of reason-
    able care. In this regard, the appellants argue that because
    Keadle’s actions were foreseeable, the Board breached its
    duty, or, at least, there is a question of fact as to whether the
    Board breached its duty. Because we conclude that the risk of
    Keadle’s actions was not foreseeable as a matter of law, we
    reject this argument. Accordingly, there was no breach of duty
    by the Board.
    [11-14] We have stated that in order to determine whether
    appropriate care was exercised, the fact finder must assess the
    foreseeable risk at the time of the defendant’s alleged negli-
    gence. Pittman v. 
    Rivera, supra
    ; A.W. v. Lancaster Cty. Sch.
    Dist. 
    0001, supra
    . Foreseeability is analyzed as a fact-specific
    inquiry. See, Hodson v. Taylor, 
    290 Neb. 348
    , 
    860 N.W.2d 162
    (2015); A.W. v. Lancaster Cty. Sch. Dist. 
    0001, supra
    . The
    foreseeability analysis requires us to ask what the defendants
    knew, when they knew it, and whether a reasonable person
    would infer from those facts that there was a danger. 
    Id. Small changes
    in the facts may make a dramatic change in how much
    risk is foreseeable. 
    Id. The law
    does not require precision in
    foreseeing the exact hazard or consequence which happens; it
    is sufficient if what occurs is one of the kinds of consequences
    which might reasonably be foreseen. Hodson v. 
    Taylor, supra
    .
    See, also, Doe v. Gunny’s Ltd. Partnership, 
    256 Neb. 653
    , 
    593 N.W.2d 284
    (1999).
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    [15-17] In this case, the appellants allege that Keadle vio-
    lently attacked Thomas. In order to make a risk of attack
    foreseeable, the existing circumstances to be considered must
    have a direct relationship to the harm incurred. See, Pittman v.
    
    Rivera, supra
    ; A.W. v. Lancaster Cty. Sch. Dist. 
    0001, supra
    .
    We have stated that courts should leave determinations of
    foreseeable risk to the trier of fact unless no reasonable per-
    son could differ on the matter. See Pittman v. 
    Rivera, supra
    .
    Although questions of foreseeable risk are ordinarily proper
    for a trier of fact, courts may reserve the right to determine
    that the defendant did not breach its duty, as a matter of law, if
    reasonable people could not disagree about the unforeseeability
    of the risk of the harm incurred. See Hodson v. 
    Taylor, supra
    .
    Therefore, although foreseeability is a question of fact, there
    remain cases where foreseeability can be determined as a mat-
    ter of law, such as by summary judgment. 
    Id. As stated
    above, in this case, the appellants argue that the
    evidence shows Keadle’s conduct in allegedly abducting, rap-
    ing, and murdering Thomas was reasonably foreseeable and
    that because such conduct was reasonably foreseeable, the
    Board breached its duty of reasonable care owed Thomas. The
    appellants further argue that at the very least, there is a ques-
    tion of fact as to whether the risk of Keadle’s acts was reason-
    ably foreseeable.
    In order to determine whether the Board breached its duty
    of care, we must determine whether the Board, under the
    facts and circumstances of this case, conducted itself reason-
    ably. We fully recognize that the record indicates that there
    were warning signs with respect to Keadle’s conduct at PSC;
    however, nothing in the record amounts to a question of fact
    as to whether such conduct forecast a risk that Keadle might
    abduct, rape, and murder Thomas.
    In support of their argument that the harm incurred by
    Thomas was reasonably foreseeable, the appellants point to
    various facts in the record which we have recited above
    regarding Keadle’s past and his actions while a student living
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    in the dormitory at PSC. Even viewing the evidence in the
    light most favorable to the appellants as the nonmoving party,
    as we must on a review of summary judgment, and even
    assuming without deciding that the challenged evidence was
    admissible, we conclude as a matter of law that no reasonable
    fact finder could determine that Keadle’s alleged abduction,
    rape, and murder of Thomas were a foreseeable risk.
    The facts indicate that Keadle’s behavior was seriously
    problematic for PSC and other students, but not reasonably
    indicative that he posed a risk of a violent assault on the per-
    son of another student. And although the Board might have
    anticipated continued problems with Keadle, no reasonable
    fact finder could find that the harm that occurred was a rea-
    sonably foreseeable risk based upon the circumstances present
    in this case. That is, nothing in the record indicates there was
    a risk that Keadle’s conduct would result in the abduction,
    rape, and murder of another student. In order to make a risk
    of attack foreseeable, the circumstances to be considered must
    have a direct relationship to the harm incurred. See Pittman
    v. Rivera, 
    293 Neb. 569
    , 
    879 N.W.2d 12
    (2016). Such direct
    relationship between the circumstances of the case and the
    harm allegedly incurred by Thomas is lacking. We agree with
    the underlying reasoning of the district court when it granted
    summary judgment in favor of the Board.
    CONCLUSION
    Because we determine as a matter of law that Keadle’s
    alleged abduction, rape, and murder of Thomas were not a
    foreseeable risk, we affirm the district court’s order which
    granted summary judgment in favor of the Board.
    A ffirmed.