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Wehrer v. Dynamic Life Therapy and Wellness, P.C.

Supreme Court of Nebraska

April 25, 2019

Arlys Wehrer, appellant,
v.
Dynamic Life Therapy and Wellness, P.C., appellee.

         1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record 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.

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

         3. Limitations of Actions: Negligence. In determining whether the statute of limitations for professional negligence applies to a plaintiff's claim, the court must determine whether the defendant is a professional and was acting in a professional capacity in rendering the services upon which the claim is based.

         4. Words and Phrases. In determining whether a particular act or service is professional in nature, the court must look to the nature of the act or service itself and the circumstances under which it was performed.

         5. Limitations of Actions: Negligence: Words and Phrases. The definition of "profession" for the purpose of determining the professional negligence statute of limitations under Neb. Rev. Stat. § 25-222 (Reissue 2016) is (1) a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods; (2) maintaining by force of organization or concerted opinion high standards of achievement and conduct; and (3) committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service.

         6. Licenses and Permits. A license indicates a person is a professional, but that is not the only prerequisite, nor is it dispositive.

         [302 Neb. 1026] 7. Words and Phrases. A college degree is not necessarily required in order for a particular occupation to constitute a "profession."

         8. Licenses and Permits: Words and Phrases. Licensure alone is generally unreliable in determining whether an occupation is a "profession" under Neb. Rev. Stat. § 25-222 (Reissue 2016), because the educational requisites for licensure vary widely.

         9. Limitations of Actions: Negligence: Words and Phrases. In analyzing whether a particular group or organization meets the definition of a "profession" for purposes of Neb. Rev. Stat. § 25-222 (Reissue 2016), each of the following principal elements must be demonstrated. The occupation is not a "profession" unless: (1) The profession requires specialized knowledge; (2) the profession requires long and intensive preparation; (3) preparation must include instruction in skills and methods of the profession; (4) preparation must include scientific, historical, or scholarly principles underlying the skills and methods of the profession; (5) membership in a professional organization is required; (6) a professional organization or concerted opinion within an organization regulates and enforces standards for membership; (7) the standards for membership include high standards of achievement; (8) the standards for membership include high standards of conduct; (9) its members are committed to continued study; (10) its members are committed to a specific kind of work; and (11) the specific kind of work has for its primary purpose the rendering of a public service.

         10. Words and Phrases. A massage therapist is not a "professional" for the purposes of applying Neb. Rev. Stat. § 25-222 (Reissue 2016).

          Appeal from the District Court for Platte County: Robert R. Steinke, Judge.

          George H. Moyer, of Moyer & Moyer, for appellant.

          Karen K. Bailey and L. Paige Hall, of Engles, Ketcham, Olson & Keith, P.C., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FREUDENBERG, J.

         NATURE OF CASE

         A customer of a massage therapy establishment filed suit for damages incurred when an employee, a licensed massage therapist, allegedly caused the customer to become unconscious [302 Neb. 1027] by improperly compressing a nerve in the customer's neck. The massage therapy establishment moved for summary judgment. The district court granted summary judgment on the ground that the customer's cause of action was time barred by the statute of limitations for professional negligence under Neb. Rev. Stat. § 25-222 (Reissue 2016).

         FACTS

         On February 17, 2017, Arlys Wehrer filed a negligence action against Dynamic Life Therapy and Wellness, RC. (Dynamic Life). The lawsuit was related to a neck massage Wehrer received from a licensed masseuse, Nicole Jones, at Dynamic Life on September 2, 2014.

         Dynamic Life is a licensed massage therapy establishment in Columbus, Nebraska, and has been in practice since 2010. Dynamic Life passed an inspection conducted by the Division of Public Health of the Department of Health and Human Services in 2011 and was issued a license to engage in the practice of massage therapy. Jones completed the required course of study and training, including 1, 000 hours of hands-on training, and graduated from the Omaha School of Massage Therapy, an approved massage therapy school, in 2000. Later that year, Jones passed the examination required by the Board of Massage Therapy and became a licensed massage therapist. She has been a licensed massage therapist since 2001 and has been employed by Dynamic Life since 2014. At the time of Wehrer's massage therapy appointment, Jones had completed the continuing competency education credits required of each licensed massage therapist who is in active practice in the State of Nebraska.

         During the appointment, Wehrer alleged that she became unconscious and fell out of the massage chair, hitting her head and shoulder on a wall, after Jones left to get Wehrer water 15 minutes into the appointment. Wehrer alleged this occurred because Jones compressed the vagus nerve in Wehrer's neck, causing her to become unconscious, fall out of the massage chair, and sustain injuries.

         [302 Neb. 1028] Wehrer filed a lawsuit against Dyanmic Life, alleging that Wehrer's injuries were caused by Dynamic Life's negligence as Jones' employer. Wehrer argued that Jones knew or should have known that compressing the vagus nerve while performing a neck massage could cause Wehrer to faint, fall, and sustain injuries. Dynamic Life filed an answer, denying Wehrer's allegations and asserting affirmative defenses, including that Wehrer's claim was time barred by the 2-year statute of limitations set forth in § 25-222.

         Dynamic Life filed a motion for summary judgment. At some point before the summary judgment hearing, the court permitted Wehrer to file a reply to Dynamic Life's answer. Within her reply, Wehrer denied Dynamic Life's suggestion that Jones was providing professional services under § 25-222. Alternatively, Wehrer alleged that § 25-222 was unconstitutional, because it is vague and it improperly delegates legislative power to the courts by allowing appellate courts to classify who "professionals" are under the statute.

         The district court sustained Dynamic Life's motion for summary judgment and entered a judgment dismissing Wehrer's complaint. The court found that based on Nebraska's Massage Therapy Practice Act and relevant Nebraska Administrative Code provisions, massage therapy requires specialized knowledge and skill. The court then concluded that a massage therapist was a "professional" under § 25-222. As a consequence, the court found that there was no dispute of material fact that Wehrer's claim was time barred by the application of § 25-222. Having dismissed the suit as time barred, the district court did not address Wehrer's constitutional arguments.

         ASSIGNMENTS OF ERROR

         Wehrer assigns that the district court erred by (1) finding that massage therapy is a "profession" and that a massage therapist could claim the benefit of § 25-222, (2) failing to consider the constitutionality of § 25-222, and (3) sustaining Dynamic Life's motion for summary judgment.

         [302 Neb. 1029] STANDARD OF REVIEW

         Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record 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.[1] In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against ...


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