Christopher Bell, as Special Administrator for the Estate of Cash Bell, et al., appellants and cross-appellees,
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.
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.
Negligence. The question whether a legal
duty exists for actionable negligence is a question of law
dependent on the facts in a particular situation.
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.
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.
Negligence. The threshold issue in any
negligence action is whether the defendant owes a legal duty
to the plaintiff.
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.
__ 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
Torts: Negligence. The common law of torts
has long recognized a fundamental distinction between
affirmatively creating a risk of harm and merely failing to
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.
. 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.
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.
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.
. 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.
. 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
. 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
. 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.
. 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).
. 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.
. 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.
from the District Court for Douglas County: J. Michael
Coffey, Judge. Affirmed.
C. Laughlin, David C. Mullin, and Jacqueline M. DeLuca, of
Fraser Stryker, PC, L.L.O., for appellants.
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.
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
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
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.
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. This court affirmed her conviction and
sentence on direct appeal.
Neb. 140] 1. Bells Sue for Wrongful Death
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."
Claims Against Cullen
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.
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,  she would not have placed
her profile on Care.com.
Claim Against Care.com
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.
Neb. 141] (c) Claims Against Childcare Centers
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.
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
Nebraska, the willful failure to report child abuse or
neglect is a Class III misdemeanor.
maintains a central registry of child protection
cases. 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." "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. "Agency substantiated" means the
Department of Health and Human Services investigated and
determined the report "was supported by a preponderance
of the evidence." 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. 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
Evidence Against La Petite
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.
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. 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.
Evidence Against Grow With Me
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.
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. 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.
Cullen Is Placed on Central Registry
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. 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.
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
Childcare Centers Seek Dismissal/Directed Verdict
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 and § 7 of the Restatement
(Third) of Torts,  both of which we discuss below.
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
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.
the jury returned its verdict against Cullen, the Bells filed
this timely appeal, and the childcare centers cross-appealed.
We granted the parties' joint ...