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Thomas v. Board of Trustees of Nebraska State Colleges

Supreme Court of Nebraska

May 19, 2017

LaTanya Thomas, individually and as Special Administrator of the Estate of Tyler Thomas. DECEASED,
v.
Board of Trustees of the Nebraska State Colleges and Joshua Keadle, appellees. AND KEVIN SeMANS, APPELLANTS,

         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.

         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 conclusion that an actor must exercise such degree of care as would be exercised 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 foreseeable 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 ...


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