Angela Rodriguez and Adan Rodriguez. Special Administrators of the Estate of Melissa Rodriguez, appellants,
Catholic Health Initiatives, doing business as CHI Health, et al., appellees.
Motions to Dismiss: Appeal and Error. A district court's
grant of a motion to dismiss is reviewed de novo.
Pleadings: Appeal and Error. An appellate court reviews a
district court's denial of a motion for leave to amend a
complaint for an abuse of discretion. However, an appellate
court reviews de novo an underlying legal conclusion that the
proposed amendments would be futile.
Motions to Dismiss: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true
all facts which are well pled and the proper and reasonable
inferences of law and fact which may be drawn therefrom, but
not the plaintiff's conclusions.
Motions to Dismiss: Pleadings. To prevail against a motion to
dismiss for failure to state a claim, a plaintiff must allege
sufficient facts, accepted as true, to state a claim to
relief that is plausible on its face. In cases in which a
plaintiff does not or cannot allege specific facts showing a
necessary element, the factual allegations, taken as true,
are nonetheless plausible if they suggest the existence of
the element and raise a reasonable expectation that discovery
will reveal evidence of the element or claim.
Actions: Pleadings: Notice. Civil actions are controlled by a
liberal pleading regime; a party is only required to set
forth a short and plain statement of the claim showing that
the pleader is entitled to relief and is not required to
plead legal theories or cite appropriate statutes so long as
the pleading gives fair notice of the claims asserted.
Actions: Pleadings. The rationale for a liberal notice
pleading standard in civil actions is that when a party has a
valid claim, he or she should [297 Neb. 2] recover on it
regardless of a failure to perceive the true basis of the
claim at the pleading stage.
Negligence: Proof. In order to recover in a negligence
action, a plaintiff must show a legal duty owed by the
defendant to the plaintiff, a breach of such duty, causation,
Negligence. The question of whether a legal duty exists for
actionable negligence is a question of law dependent on the
facts in a particular situation.
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
___. Duty rules are meant to serve as broadly applicable
guidelines for public behavior, i.e., rules of law applicable
to a category of cases.
___. Whether a duty exists is a policy decision.
Negligence: Mental Health. Under Neb. Rev. Stat. §
38-2137(2) (Reissue 2016), the duty to warn of or to take
reasonable precautions to provide protection from violent
behavior shall arise only under the limited circumstances
specified in § 38-2137(1), and shall be discharged by
the mental health practitioner if reasonable efforts are made
to communicate the threat to the victim or victims and to a
law enforcement agency.
from the District Court for Douglas County: James T. Gleason,
E. Jorde, of Domina Law Group, PC, L.L.O., for appellants.
Patrick G. Vipond, William R. Settles, and Cathy S.
Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for
appellees Catholic Health Initiatives, doing business as CHI
Health, et al.
Scott Paul and Jay D. Koehn, of McGrath, North, Mullin &
Kratz, PC, L.L.O., and, on brief, Elizabeth Bruening Smith,
for appellee The Noll Company.
S. Daly and Mary M. Schott, of Sodoro, Daly, Shomaker &
Selde, PC, L.L.O., for appellees UNMC Physicians and Jane Doe
Heavican, C.J., Miller-Lerman, Stacy, and Kelch, JJ., and
Melissa Rodriguez was killed by Mikael Loyd, Melissa's
parents, Angela Rodriguez and Adan Rodriguez, as the special
administrators of Melissa's estate (collectively the
appellants), brought this negligence and wrongful death
action in the district court for Douglas County. The
appellants filed their second amended complaint against
numerous defendants whom we treat as three groups. The first
group is collectively referred to as the "Lasting Hope
defendants, " composed of Catholic Health Initiatives,
doing business as CHI Health; Alegent Creighton Health, now
known as CHI Health Alegent Creighton Clinic; Lasting Hope
Recovery Center of Catholic Health Initiatives (Lasting
Hope); "John Doe #1, " an employee of Lasting Hope;
"John Doe #2, " an employee of Lasting Hope; three
Noll entities (Noll Human Resource Services, The Noll
Company, and Noll, Inc.); and "Jane Doe Nurse #1, "
an employee of a Noll entity. The second group is
collectively referred to as the "UNMC defendants, "
composed of UNMC Physicians (UNMC) and "Jane Doe
Physician #1, " an employee of UNMC. The third group is
collectively referred to as the "City defendants"
composed of the City of Omaha, "Officer Doe #1, "
and "Officer Doe #2." The appellants claimed that
the defendants were negligent in various respects and
specifically in failing to protect Melissa from Loyd. All the
defendants moved to dismiss the second amended complaint. The
district court granted the defendants' motions to
dismiss. The district court denied the appellants' leave
to amend their second amended complaint except as to the City
defendants. The appellants did not amend their allegations
regarding the City defendants, and the City defendants stood
dismissed. The appellants filed this appeal challenging the
dismissal of the Lasting Hope defendants and UNMC [297 Neb.
4] defendants. The City defendants are not parties to this
appeal. We determine that the district court erred when it
dismissed the appellants' second amended complaint as to
the Lasting Hope defendants. We further conclude that the
district court erred when it denied the appellants'
motion to amend the second amended complaint to add
allegations relative to the UNMC defendants and dismissed the
UNMC defendants. We reverse, and remand for further
to the appellants' second amended complaint, which is the
operative pleading in this case, on or about June 11, 2013,
Loyd assaulted and battered Melissa. The Omaha Police
Department (OPD) was contacted regarding the incident, and
officers completed a domestic violence report. Charges were
not brought against Loyd at that time, but an investigation
was ongoing. The second amended complaint alleges that in
July, Loyd falsely imprisoned Melissa for a period of time.
Melissa contacted the OPD regarding Loyd at various times in
July and August.
August 7, 2013, the OPD issued an arrest warrant for Loyd for
the misdemeanor assault and battery of Melissa. On August 8,
Loyd contacted the OPD and voluntarily met with and spoke to
officers. During this meeting, "Loyd expressed a desire
to kill." The OPD then placed Loyd under emergency
protective custody because it believed that Loyd was
"mentally ill and an imminent threat of danger to
himself or others." Loyd was transferred to Lasting
Hope. The appellants allege that at the time Loyd was placed
under emergency protective custody, Lasting Hope was
"aware of his misdemeanor warrant." The second
amended complaint further states: "Lasting Hope knew or
should have known that the [emergency protective custody]
hold placed on Loyd was the result of Loyd threatening to
kill his mother and professing he was a danger to himself and
Neb. 5] Loyd remained at Lasting Hope from August 8 to 14,
2013. Pursuant to Neb. Rev. Stat. § 71-919 (Reissue
2009), within 36 hours of being admitted to a mental health
facility, an individual under emergency protective custody
must undergo a mental health evaluation to be performed by a
mental health professional. Section 71-919(4) provides that
"[a] person shall be released from emergency protective
custody after completion of such evaluation unless the mental
health professional determines, in his or her clinical
opinion, that such person is mentally ill and dangerous or a
dangerous sex offender." On August 11, Jane Doe
Physician #1, an employee of UNMC, prepared a mental health
evaluation of Loyd and found "Loyd not to be a danger to
himself or others."
to the second amended complaint, while Loyd was at Lasting
Hope, he made repeated calls to Melissa from Lasting
Hope's landline telephone. Loyd called Melissa on August