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Bell v. Grow With Me Childcare & Preschool LLC

Supreme Court of Nebraska

March 2, 2018

Christopher Bell, as Special Administrator for the Estate of Cash Bell, et al., appellants and cross-appellees,
v.
Grow With Me Childcare & Preschool LLC, A DOMESTIC LIMITED LIABILITY COMPANY ORGANIZED UNDER THE LAWS OF THE STATE OF NEBRASKA, ET AL., APPELLEES AND CROSS-APPELLANTS.

         1. Directed Verdict: Evidence. A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law.

         2. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

         3. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

         4. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant's duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.

         5. Negligence. The threshold issue in any negligence action is whether the defendant owes a legal duty to the plaintiff.

         6. Negligence: Liability. Under the duty framework of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010), the ordinary duty of reasonable care is expressly conditioned on the actor's having engaged in conduct that creates a risk of physical harm to another. In the absence of such conduct, an actor ordinarily has no duty of care to another.

         7.__: __ The Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010) states the general principle that an actor [299 Neb. 137] has a duty of reasonable care when the actor's conduct creates a risk of physical harm to others. The Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 37 (2012) states a complementary principle: There is no duty of care when another is at risk for reasons other than the conduct of the actor, even though the actor may be in a position to help.

         8. Torts: Negligence. The common law of torts has long recognized a fundamental distinction between affirmatively creating a risk of harm and merely failing to prevent it.

         9. Negligence. There is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and nonfeasance, between active misconduct working positive injury to others and passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant.

         10. __ . One way to determine whether an actor's conduct created a risk of harm is to explore, hypothetically, whether the same risk of harm would have existed even if the actor had not engaged in the conduct.

         11. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         12. Negligence. The Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010) does not recognize a universal duty to exercise reasonable care to all others in all circumstances. Rather, it imposes a general duty of reasonable care only on an actor whose conduct has created a risk of physical harm to another, and it recognizes that absent such conduct, an actor ordinarily has no duty of care to another.

         13. __ . Under the risk architecture of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010), the first step is to determine whether the actor's affirmative conduct created a risk of physical harm such that the general duty to exercise reasonable care under § 7 is applicable. If no such affirmative conduct exists, then the next step is to determine whether any special relationship exists that would impose a recognized affirmative duty on the actor with regard to the risks arising within the scope of that relationship.

         14. __ . The failure to rescue or protect another from harm is not conduct creating a risk of harm under the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010), and does not give rise to a duty of care under that section.

         15. __ . Under the duty analysis of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010), the conduct creating the risk must be some affirmative act, even though the claimed breach [299 Neb. 138] can be a failure to act. When the only role of the actor is failing to intervene to protect others from risks created by third persons, the actor's nonfeasance cannot be said to have created the risk.

         16. __ . Generally speaking, the law does not recognize a duty of care when others are at risk of physical harm for reasons other than the conduct of the actor, even if the actor may be in a position to help.

         17. __ . Ordinarily, the failure to act will not be the sort of affirmative conduct that gives rise to a duty under the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010).

         18. __ . Even when an actor's conduct does not create a risk of physical harm, the actor may still owe an affirmative duty of care based on a special relationship.

         19. __ . Under the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012), an actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.

         Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Affirmed.

          Mark C. Laughlin, David C. Mullin, and Jacqueline M. DeLuca, of Fraser Stryker, PC, L.L.O., for appellants.

          Mark J. Daly, Andrew T. Schlosser, and MaryBeth Frankman. of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellees La Petite Academy, Inc., and Lisa Hampson.

          Richard J. Gilloon, Bonnie M. Boryca, and MaKenna J. Stoakes, of Erickson & Sederstrom, PC, for appellees Grow With Me Childcare & Preschool LLC and Jennifer Schmaderer.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         This is a tort action brought to recover damages resulting from the tragic death of an infant who was abused by his nanny. The parents and special administrator for the infant's estate sued the nanny for battery, and also sued two childcare centers where the nanny had worked previously, alleging the [299 Neb. 139] childcare centers were negligent because they knew or should have known the nanny had been abusive to other children while in their employ but failed to report it to authorities. At the close of the evidence, the district court directed a verdict in favor of the childcare centers and dismissed them from the case. The claim against the nanny was submitted to the jury, which returned a verdict in excess of $5 million. The parents and special administrator appeal the dismissal of the childcare centers, and the childcare centers cross-appeal.

         This case requires us to determine, as a threshold matter, whether the childcare centers owed a legal duty to protect the infant from the criminal acts of a former employee. Because we find no such duty on the facts of this case, we affirm the district court's dismissal of the claims against the childcare centers.

         I. FACTS

         Christopher Bell and Ashley Bell are the parents of Cash Bell, born in October 2012. Christopher and Ashley used Care.com, an online marketplace for finding caregivers, to hire a nanny to provide in-home care for Cash. They ultimately hired Sarah Cullen. They selected Cullen over approximately 30 other matches proposed by Care.com, in part because Cullen had more experience working in childcare centers. Before selecting Cullen, Christopher and Ashley conducted a standard background check using Care.com. The background check revealed no concerns.

         Cullen began working for Christopher and Ashley in January 2013. On February 28, Cullen inflicted fatal injuries on Cash, and he died from his injuries several days later. Cullen subsequently was convicted of intentional child abuse resulting in death and was sentenced to imprisonment for a term of 70 years to life.[1] This court affirmed her conviction and sentence on direct appeal.[2]

          [299 Neb. 140] 1. Bells Sue for Wrongful Death

         In May 2014, Christopher, acting as the special administrator for the estate of Cash, filed this wrongful death action in the Douglas County District Court on behalf of the next of kin. Joined with the wrongful death action was a survival action seeking to recover Cash's damages, as well as Christopher and Ashley's claim for predeath medical expenses. We refer collectively to these parties as "the Bells."

         (a) Claims Against Cullen

         The Bells sued Cullen, alleging a claim of battery resulting in death. Cullen was served but did not answer, and the district court entered default judgment against Cullen on the issue of liability for Cash's death. The question of damages was tried to the jury, which returned a verdict against Cullen totaling $5, 125, 000. The Bells do not assign error to this verdict, and Cullen is not participating in this appeal.

         Cullen testified at trial by deposition. She denied abusing any children while working for the childcare centers, but declined to answer any questions about Cash. Cullen testified, over the childcare centers' objection, that if she had been accused of, investigated for, or charged with child abuse, she would have stopped working as a childcare provider before being hired by Christopher and Ashley. Cullen also testified, over objection, that if she had been listed on the child abuse central registry, [3] she would not have placed her profile on Care.com.

         (b) Claim Against Care.com

         The Bells sued Care.com for negligent misrepresentations regarding Cullen's background. Prior to trial, Care.com was dismissed on summary judgment. No party has assigned error to that ruling, and Care.com is not participating in this appeal.

          [299 Neb. 141] (c) Claims Against Childcare Centers

         The Bells alleged negligence claims against La Petite Academy, Inc., and its director, Lisa Hampson (collectively La Petite), and Grow With Me Childcare & Preschool LLC and its director, Jennifer Schmaderer (collectively Grow With Me). The evidence offered at trial against La Petite and Grow With Me is summarized below.

         The Bells alleged the childcare centers were negligent because they knew or should have known that Cullen was abusing children while in their employ and failed to report that abuse to authorities. The Bells' general theory of liability was that the childcare centers had a common-law duty of reasonable care and breached that duty by failing to report Cullen's abusive behavior. The alleged breach was premised in part on Neb. Rev. Stat. § 28-711(1) (Reissue 2016), which provides:

When any physician, any medical institution, any nurse, any school employee, any social worker, ... or any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect, he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the [Department of Health and Human Services] on the toll-free number established by subsection (2) of this section.

         In Nebraska, the willful failure to report child abuse or neglect is a Class III misdemeanor.[4]

         Nebraska maintains a central registry of child protection cases.[5] This registry contains "records of all reports of child abuse or neglect opened for investigation" that are [299 Neb. 142] ultimately classified as either "court substantiated or agency substantiated."[6] "Court substantiated" means a court of competent jurisdiction has entered a judgment of guilty against the subject of the report or there has been an adjudication of abuse or neglect in juvenile court.[7] "Agency substantiated" means the Department of Health and Human Services investigated and determined the report "was supported by a preponderance of the evidence."[8] Nebraska administrative regulations provide that an individual listed as a perpetrator on the registry may not be on the premises of a childcare center during the hours of operation.[9] Administrative regulations also permanently bar an individual from working in a childcare center if he or she has been convicted of an unlawful act that endangers the health or safety of another individual, including child abuse, child neglect, and assault.[10]

         (i) Evidence Against La Petite

         La Petite is a national company that operates a childcare center in Omaha, Nebraska. The Bells had no relationship with La Petite, but Cullen was employed at La Petite from December 2006 to December 2007.

         At trial, the Bells presented evidence that while Cullen was employed by La Petite, a coworker saw Cullen yell at, shove, and drop toddlers in her care. Cullen was also seen forcefully pulling a child down a playground slide, causing the child's head to hit the ground. A coworker reported these events to La Petite's director, who investigated and concluded they did not amount to reportable child abuse.[11] Neither the director, the coworker, nor anyone else at La Petite reported Cullen's [299 Neb. 143] behavior to the authorities. Cullen was fired from La Petite in December 2007.

         (ii) Evidence Against Grow With Me

         Grow With Me is also an Omaha childcare center. The Bells had no relationship with Grow With Me, but Cullen was employed there from March to September 2012.

         At trial, the Bells presented evidence that while Cullen was employed by Grow With Me, a coworker saw her verbally and physically abuse children. Cullen was seen dragging children, yelling at children, and dropping children. On one occasion, a coworker saw Cullen "shove" shoes and pants into a child's mouth during a diaper change. On another occasion, a coworker saw Cullen "fling" a child across the room, causing the child to hit her head on a table. These events were reported to the Grow With Me director, who investigated and concluded they did not amount to reportable child abuse.[12] Neither the director, Cullen's coworkers, nor anyone else at Grow With Me reported Cullen's behavior to the authorities. Cullen was fired from Grow With Me in September 2012.

         2. Cullen Is Placed on Central Registry

         At trial, the Bells presented evidence that after Cash's death, Cullen was investigated by the Department of Health and Human Services and the Omaha Police Department. As part of that investigation, Cullen's former coworkers at Grow With Me were interviewed. Based on the former coworkers' reports of Cullen's actions while employed at Grow with Me, the Department of Health and Human Services concluded the allegations of abuse were "[a]gency substantiated" and placed Cullen on the central child abuse registry.[13] An Omaha police officer testified at trial, over the childcare centers' objection, [299 Neb. 144] that she would have arrested Cullen for child abuse based on the reports of what had occurred at Grow With Me.

         The Bells claim that if Cullen's abusive behavior had been timely reported by the childcare centers, then authorities would have investigated the reports sooner, and either (1) the investigation would have prompted Cullen to voluntarily stop working in the childcare field before she applied for the position with Christopher and Ashley or (2) the investigation would have resulted in Cullen's name being placed on the central registry sooner, because the abuse would have been agency substantiated or, alternatively, because Cullen would have been charged and convicted of child abuse. The Bells contend that under any of these causal chains, but for the childcare center's negligence, Christopher and Ashley would not have hired Cullen and she would not have been in a position to inflict fatal injuries on Cash.

         3. Childcare Centers Seek Dismissal/Directed Verdict

         Before trial, the childcare centers filed motions to dismiss claiming they had no legal duty to protect Cash from the criminal acts of Cullen. The trial court denied these motions, reasoning the childcare centers owed a duty to Cash because their "alleged conduct of not reporting suspected child abuse created a risk of physical harm" to Cash. In making this legal determination, the trial court appears to have relied on A. W. v. Lancaster Cty. Sch. Dist. 000P[14] and § 7 of the Restatement (Third) of Torts, [15] both of which we discuss below.

         At the close of the Bells' case in chief, the childcare centers moved for a directed verdict on several grounds. First, the childcare centers argued they owed no legal duty to protect Cash from Cullen's criminal acts. Next, the childcare centers [299 Neb. 145] argued that if they owed a duty, it was not breached, because Cullen's actions were not reasonably foreseeable. And finally, the childcare centers argued that even assuming they were negligent in not reporting Cullen's behavior while in their employ, no reasonable fact finder could conclude that the fatal injuries inflicted on Cash were proximately caused by the childcare centers' negligence.

         The district court sustained the motion for directed verdict and dismissed the Bells' amended complaint against the childcare centers. In explaining its reasoning, the district court commented that if the childcare centers had a duty it was "slim" but the court's primary reason for directing a verdict was proximate cause. The court reasoned that all of the Bells' causal chains relied on facts that were too tenuous and speculative to be accepted by any reasonable jury, and the court found no reasonable jury could conclude the childcare centers' conduct was a proximate cause of Cash's death.

         After the jury returned its verdict against Cullen, the Bells filed this timely appeal, and the childcare centers cross-appealed. We granted the parties' joint ...


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