David Apkan, Special Administrator of the Estate of Musa Gwelo, Appellant,
Life care centers of America, Inc., and Consolidated Resources Health Care Fund I, L.P., doing business as Life Care Center at Elkhorn, Appellees.
Appeal and Error. In the absence of plain
error, an appellate court considers only claimed errors that
are both assigned and discussed.
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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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.
___: ___. 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.
___: ___. 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.
Trial: Evidence: Proximate Cause.
Speculation and conjecture are not sufficient to establish
from the District Court for Douglas County: James T. Gleason,
Judge. Affirmed. Richard F. Hitz, of Law Office of Rich Hitz,
Neb.App. 156] Mark E. Novotny and Cathy S. Trent-Vilim, of
Lamson. Dugan & Murray, L.L.P., for appellees.
Chief Judge, and Pirtle and Arterburn, Judges.