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Apkan v. Llfe Care Centers of America, Inc.

Court of Appeals of Nebraska

August 7, 2018

David Apkan, Special Administrator of the Estate of Musa Gwelo, Appellant,
v.
Life care centers of America, Inc., and Consolidated Resources Health Care Fund I, L.P., doing business as Life Care Center at Elkhorn, Appellees.

         1. Appeal and Error. In the absence of plain error, an appellate court considers only claimed errors that are both assigned and discussed.

         2. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact 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.

         3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

         4. Trial: Expert Witnesses: Appeal and Error. Generally, an appellate court will reverse a trial court's decision to receive or exclude the otherwise relevant testimony of an expert only when there has been an abuse of discretion.

         5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         6. Summary Judgment: Affidavits. Supporting affidavits in summary judgment proceedings shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

         [26 Neb.App. 155] 7. Malpractice: Health Care Providers: Statutes. Because of the statutory difference between skilled nursing facilities and assisted living facilities, they have differing standards of care.

         8. Expert Witnesses. An expert's opinion is ordinarily admissible if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination.

         9. Negligence: Summary Judgment: Proof. For the court to grant summary judgment to the defendant in a negligence action, the defendant need only prove that there is no issue of material fact as to one of the elements such that the defendant is entitled to judgment as a matter of law.

         10. Expert Witnesses. When the character of an alleged injury is subjective rather than objective, a plaintiff must establish the cause and extent of the injury through expert medical testimony.

         11. Negligence: Malpractice: Expert Witnesses. The common-knowledge exception to the requirement for expert medical testimony applies where the causal link between the defendant's negligence and the plaintiff's injuries is sufficiently obvious to laypersons that a court can infer causation as a matter of law.

         12. Negligence: Proof. To prevail in any negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and resulting damages.

         13. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.

         14. ___: ___. A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial.

         15. ___: ___. After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact that prevents judgment for the moving party.

         16. Trial: Evidence: Proximate Cause. Speculation and conjecture are not sufficient to establish causation.

          Appeal from the District Court for Douglas County: James T. Gleason, Judge. Affirmed. Richard F. Hitz, of Law Office of Rich Hitz, for appellant.

         [26 Neb.App. 156] Mark E. Novotny and Cathy S. Trent-Vilim, of Lamson. Dugan & Murray, L.L.P., for appellees.

          Moore, Chief Judge, and Pirtle and Arterburn, Judges.

          MOORE, ...


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