Rodriguez v. Lasting Hope Recovery Ctr. , 308 Neb. 538 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/05/2021 09:07 AM CST
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
Angela Rodriguez and Adan Rodriguez, Special
Administrators of the Estate of Melissa Rodriguez,
appellants, v. Lasting Hope Recovery Center
of Catholic Health Initiatives, formerly
known as Lasting Hope Recovery
Center of Alegent Creighton
Health, et al., appellees.
___ N.W.2d ___
Filed March 5, 2021. No. S-19-1116.
1. Employer and Employee: Negligence: Liability. Under the doctrine
of respondeat superior, an employer may be held vicariously liable
for the negligence of an employee while acting within the scope of
employment.
2. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
3. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
4. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particu-
lar situation.
5. Judgments: Appeal and Error. In reviewing questions of law, an
appellate court has an obligation to reach conclusions independently of
those reached by the trial court.
6. Trial: Evidence: Appeal and Error. An appellate court reviews the
factual findings underpinning a trial court’s evidentiary rulings for clear
error and reviews de novo the court’s ultimate determination to admit
evidence over an objection.
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Nebraska Supreme Court Advance Sheets
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
7. Negligence: Damages: Proof. To recover in a negligence action, a
plaintiff must show that the defendant owed a duty toward the plaintiff,
breached that duty, and caused damages.
8. Negligence. The threshold issue in any negligence action is whether the
defendant owed a duty to the plaintiff.
9. ____. An actor whose conduct has not created a risk of physical harm
to another has no duty of care to the other unless an affirmative duty
created by another circumstance is applicable or a special relation exists
between the actor and the third person, which imposes a duty upon the
actor to control the third person’s conduct.
10. ____. The special relationship between a custodian and persons in its
custody gives rise to an affirmative duty of care by the custodian to
third persons.
11. ____. A custodial relationship need not be full-time physical custody
giving the custodian complete control over the other person. But to the
extent that there is some custody and control of a person posing dangers
to others, the custodian has an affirmative duty to exercise reasonable
care, consistent with the extent of custody and control.
12. Negligence: Physician and Patient: Mental Health: Liability. A psy-
chiatrist is liable for failing to warn of and protect from a patient’s
threatened violent behavior, or failing to predict and warn of and protect
from a patient’s violent behavior, when the patient has communicated
to the psychiatrist a serious threat of physical violence against himself,
herself, or a reasonably identifiable victim or victims. The duty to
warn of or to take reasonable precautions to provide protection from
violent behavior shall arise only under those limited circumstances and
shall be discharged by the psychiatrist if reasonable efforts are made to
communicate the threat to the victim or victims and to a law enforce-
ment agency.
13. Statutes: Judicial Construction: Legislature: Intent: Presumptions.
Where a statute has been judicially construed and that construction has
not evoked an amendment, it will be presumed that the Legislature has
acquiesced in the court’s determination of the Legislature’s intent.
14. Negligence: Mental Health. A duty to warn and protect arises only if
the information communicated to the psychiatrist leads the psychiatrist
to believe that his or her patient poses a serious risk of grave bodily
injury to another.
15. ____: ____. A duty to warn and protect arises only if a serious threat of
physical harm was actually communicated to the psychiatrist.
16. Courts: Legislature. A court should proceed cautiously when its deci-
sion would undermine a policy judgment of the Legislature.
17. Negligence: Mental Health. For a duty to warn or protect to arise,
the requirement of actual communication means that the patient must
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
verbally express or convey to the psychiatrist his or her prediction to
commit physical violence against himself, herself, or a reasonably iden-
tifiable victim or victims.
18. Summary Judgment. In the summary judgment context, a fact is mate-
rial only if it would affect the outcome of the case.
19. Negligence. The common law’s ordinary duty of care requires actors to
exercise reasonable care.
20. ____. Whether an actor exercised reasonable care depends on whether
a reasonable person of ordinary prudence would have done more in the
same or similar circumstances.
21. Negligence: Juries. Where reasonable minds can disagree about whether
reasonable care was followed, the question is generally left to the jury.
22. Negligence: Liability: Public Policy. When an articulated counter-
vailing principle or policy warrants denying or limiting liability in a
particular class of cases, a court may decide that, as a matter of law,
the defendant has no duty or that the ordinary duty of reasonable care
requires modification.
23. Judgments: Negligence: Public Policy. A determination of no duty as
a matter of law should be grounded in public policy and based upon
legislative facts, not adjudicative facts arising out of the particular cir-
cumstances of the case.
24. Judgments: Negligence: Liability: Public Policy. A determination of
no duty as a matter of law should be explained and justified based on
articulated policies or principles that justify exempting the actor from
liability or modifying the ordinary duty of reasonable care.
25. Negligence: Physician and Patient: Mental Health. Psychiatrists owe
no duty as a matter of law to third parties for physical injuries caused
by a patient who has not actually communicated a threat of physical
violence. And once such an actual communication has taken place, any
duty to warn or protect on the part of the psychiatrist can be discharged
by reasonable efforts to communicate the threat to the victim and a law
enforcement agency.
26. Trial: Evidence: Appeal and Error. The admission or exclusion of
evidence is not reversible error unless it unfairly prejudiced a substantial
right of the complaining party.
27. ____: ____: ____. Erroneous exclusion of evidence does not require
reversal if the evidence would have been cumulative and other relevant
evidence, properly admitted, supports the trial court’s finding.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for
appellants.
Cathy S. Trent-Vilim, Denise M. Destache, and Patrick G.
Vipond, of Lamson, Dugan & Murray, L.L.P., for appellee
Lasting Hope Recovery Center of Catholic Health Initiatives.
Mary M. Schott and Joseph S. Daly, of Evans & Dixon,
L.L.C., for appellee UNMC Physicians.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik,
and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
This is a tort action brought to recover damages for the
wrongful death of Melissa Rodriguez, who was killed by her
ex-boyfriend, Mikael Loyd. Loyd was a patient for 6 days at
Lasting Hope Recovery Center (Lasting Hope), a mental health
care facility in Omaha, Nebraska, where he was treated by
Dr. Jeana Benton, a psychiatrist employed by the University
of Nebraska Medical Center Physicians (UNMC Physicians).
Hours after Lasting Hope had discharged Loyd pursuant to
Benton’s order, Loyd strangled Melissa to death.
As special administrators for Melissa’s estate, her parents,
Angela Rodriguez and Adan Rodriguez (Special Administrators),
brought a wrongful death action against Lasting Hope and
UNMC Physicians for failing to warn and protect Melissa from
Loyd. The district court granted summary judgment to Lasting
Hope and UNMC Physicians on the basis that they owed no
legal duty to Melissa. We affirm.
II. FACTUAL BACKGROUND
On August 8, 2013, Loyd visited the Omaha Police
Department (OPD) headquarters, stating that he wished to
share information about his father’s 1995 murder. He told
OPD officers that he blamed his mother for the murder and
that he sought OPD’s help to have her killed in retaliation.
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
The OPD officers called Loyd’s grandmother, who explained
that Loyd was mentally ill and “not on his medications.”
Loyd’s grandmother confirmed that in the past, she had also
heard Loyd threaten to kill his mother. The OPD officers next
called Loyd’s mother, who lived in North Carolina, to warn her
of Loyd’s threats.
After a brief investigation, the OPD officers discovered an
outstanding arrest warrant for Loyd, attributable to an alleged
June 11, 2013, misdemeanor assault and battery of his girl-
friend, Melissa. The OPD officers acknowledged that they
could arrest Loyd pursuant to the warrant, but they expressed
concern that if Loyd then made bond before he could obtain
mental health treatment, he would again present a serious
danger to the public. The OPD officers instead placed Loyd
under emergency protective custody and transported him to
Lasting Hope. 1
At Lasting Hope, Benton was assigned as Loyd’s treating
psychiatrist. During an initial evaluation on August 9, 2013,
Benton noted that Loyd “denies symptoms consistent with
bipolar disorder . . . but appears extremely paranoid, distract-
ible and at times appears to be responding to internal stimuli.”
She determined that Loyd was “very paranoid, homicidal and
delusional and [a] risk for harm to others were he to be outside
the hospital environment at this time.” Benton recommended 5
to 7 days’ “hospitalization for stabilization and safety.”
Loyd remained at Lasting Hope from August 8 to 14, 2013.
During this time, he called his mother and Melissa using
Lasting Hope’s landline telephone. Melissa twice visited Loyd
at Lasting Hope. During her second visit, Melissa told Loyd
that she no longer wished to be his girlfriend.
Based on statements that Benton had heard in which Loyd
had specifically expressed a desire to kill his mother, Lasting
Hope staff called Loyd’s mother and warned her of his threats.
But because Loyd had never expressed a similar threat against
Melissa, she was not warned.
1
See Neb. Rev. Stat. § 71-919 (Reissue 2018).
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
On August 12, 2013, Loyd dialed the 911 emergency dis-
patch service to turn himself in to police on his outstanding
arrest warrant. OPD officers arrived at Lasting Hope that
afternoon. Lasting Hope staff informed the OPD officers that
Benton wished to continue to hold Loyd for further mental
health evaluation. Apparently accepting Benton’s determination
that Loyd still needed mental health treatment at Lasting Hope,
the OPD officers did not arrest Loyd at that time.
On August 14, 2013, Benton evaluated Loyd and determined
that he was ready to be discharged. According to Benton, Loyd
had been compliant with his medication for 6 days. Although
still delusional about his father’s murder, Loyd no longer
expressed an intent to harm his mother. He reported to Benton
that he “had a good conversation” with his mother over the
telephone, and he committed to “not act to harm anyone.”
Benton concluded that Loyd was no longer a risk to himself or
to others. After providing Loyd with a supply of medication and
scheduling a followup appointment at Lasting Hope, Benton
discharged Loyd at 1:40 p.m. Neither Benton nor Lasting Hope
staff notified OPD or Melissa of Loyd’s discharge.
After Loyd was discharged, he placed numerous calls to
Melissa from his cell phone. Melissa was at home with her
sister, who urged Melissa to ignore Loyd’s calls. But even­
tually Melissa answered one. Loyd told her that he had been
discharged from Lasting Hope. Melissa agreed to meet Loyd
that evening at a park.
Melissa’s body was discovered the next day, August 15,
2013. Investigators concluded that Loyd had strangled Melissa.
Loyd had returned to Lasting Hope, and OPD officers arrested
him there. Loyd was initially prosecuted for murdering
Melissa, but in September 2013, he was found not competent
to stand trial.
The present action was initiated by the Special Administrators,
Melissa’s parents, in the district court for Douglas County.
According to the amended complaint, parties representing two
groups had negligently caused Melissa’s wrongful death.
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308 Nebraska Reports
RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
[1] The first group, collectively referred to as the “UNMC
Defendants,” consisted of UNMC Physicians; the Noll
Company; and two employees of UNMC Physicians, “Jane Doe
Physician #1” and “Jane Doe Nurse #1.” The second group,
collectively referred to as the “Lasting Hope Defendants,”
consisted of Catholic Health Initiatives, doing business as CHI
Health; Alegent Health-Bergan Mercy Health System, doing
business as Lasting Hope; and two employees of Lasting Hope,
“John Doe #1” and “John Doe #2.” We note that certain of
these entities were grouped together pursuant to the doctrine
of respondeat superior, which allows an employer to be held
vicariously liable for the negligence of an employee while act-
ing within the scope of employment. 2
The defendants filed motions to dismiss for failing to state
a claim upon which relief can be granted. 3 After a hearing, the
district court concluded that the issue raised by the motions
to dismiss was whether the defendants owed Melissa a duty.
Holding that the Special Administrators had failed to allege
sufficient facts to show that the UNMC Defendants or the
Lasting Hope Defendants owed Melissa any duty, the district
court ordered the complaint dismissed.
We reviewed the Special Administrators’ first appeal in
Rodriguez v. Catholic Health Initiatives (Rodriguez I ) and
reversed the decision of the district court and remanded the
cause. 4 The Special Administrators’ claim against the UNMC
Defendants was sufficient to survive a motion to dismiss based
on allegations, which we accepted as true, that Loyd had “‘suf-
ficiently communicated’” to Benton that he intended to kill
Melissa. 5 And with respect to the Lasting Hope Defendants,
the Special Administrators had “alleged sufficient facts . . . ,
2
See Cruz v. Lopez, 301 Neb. 531, 919 N.W.2d 479 (2018).
3
See Neb. Ct. R. Pldg. § 6-1112(b)(6).
4
Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 899 N.W.2d 227
(2017).
5
Id. at 15, 899 N.W.2d at 237.
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
which we accept[ed] as true, to show that Loyd was in Lasting
Hope’s custody and that therefore, such facts g[a]ve rise to
a duty.” 6
After our remand and some discovery, the defendants moved
for summary judgment. A hearing on defendants’ motions was
set for Monday, October 7, 2019. On Sunday, the day before
the hearing, the Special Administrators served on the defend­
ants six affidavits, 526 pages in all, in opposition to summary
judgment. The defendants objected that these affidavits were
untimely served, lacked proper foundation, and consisted of
hearsay. After taking the matter under advisement, the district
court ultimately sustained the defendants’ objections, writing
in its order that “[t]he material objected to has been ignored by
the [c]ourt in its determination herein.”
The district court then granted the defendants’ motions for
summary judgment, concluding that the undisputed evidence
showed that none of the defendants owed any duty to Melissa.
According to the district court, the UNMC Defendants owed
no duty to warn Melissa because Loyd had never actually
communicated to Benton that he intended to harm Melissa.
And the Lasting Hope Defendants owed no duty to protect
Melissa because by the time of her murder, Loyd had already
been discharged from Lasting Hope pursuant to Benton’s
recommendation.
The Special Administrators filed a timely appeal. 7
III. ASSIGNMENTS OF ERROR
The Special Administrators assign, consolidated and restated,
that the district court erred by (1) granting summary judgment
to the UNMC Defendants and the Lasting Hope Defendants
on the basis that they did not owe a duty to warn and protect
Melissa from Loyd and (2) excluding six affidavits in opposi-
tion to the defendants’ motions for summary judgment.
6
Id. at 12, 899 N.W.2d at 236.
7
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
IV. STANDARD OF REVIEW
[2,3] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 8 An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 9
[4,5] The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a par-
ticular situation. 10 In reviewing questions of law, an appellate
court has an obligation to reach conclusions independently of
those reached by the trial court. 11
[6] An appellate court reviews the factual findings under-
pinning a trial court’s evidentiary rulings for clear error and
reviews de novo the court’s ultimate determination to admit
evidence over an objection. 12
V. ANALYSIS
As we have stated before, when confronted by an unimagi-
nable loss such as what the Special Administrators have expe-
rienced with respect to the life of Melissa, their daughter, it is
natural to ask, “What more could have been done?” 13 But tort
law requires that we begin with a different question: whether a
legal duty existed to do anything more. 14
8
Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).
9
Id.
10
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
11
See id.
12
See AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d
212 (2020).
13
Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136, 146, 907
N.W.2d 705, 713 (2018).
14
See id.
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
1. Duty
[7,8] To recover in a negligence action, a plaintiff must
show that the defendant owed a duty to the plaintiff, breached
that duty, and caused damages as a result. 15 The threshold
issue in any negligence action, and the question presented
here, is whether the defendants owed a duty to the plaintiffs. 16
Specifically at issue is the UNMC Defendants’ and the Lasting
Hope Defendants’ duty to warn and protect Melissa. The
Special Administrators allege that the defendants’ breach of
this duty proximately caused Melissa’s wrongful death.
Until 2012, when discussing a defendant’s duty to control
the actions of a third party, we relied on the Restatement
(Second) of Torts, 17 which provides that there is generally no
duty to control the conduct of a third person to prevent him
or her from causing physical harm to another unless “‘a spe-
cial relationship exists between the actor and the third person
which imposes a duty upon the actor to control the third per-
son’s conduct.’” 18 For example, “‘[o]ne who takes charge of
a third person whom he [or she] knows or should know [is]
likely to cause bodily harm to others if not controlled is under
a duty to exercise reasonable care to control the third person to
prevent him [or her] from doing such harm.’” 19
[9] Since 2012, which was after the Restatement (Third) of
Torts 20 was published, we have generally relied on it, instead,
when considering the duty to control the actions of a third
15
See Sundermann, supra note 10, 306 Neb. at 763-64, 947 N.W.2d at 503.
16
See id.
17
Restatement (Second) of Torts § 315(a) (1965).
18
Bartunek v. State, 266 Neb. 454, 459, 666 N.W.2d 435, 440 (2003)
(quoting Restatement (Second), supra note 17).
19
Id. at 462, 666 N.W.2d at 441 (quoting Restatement (Second), supra note
17, § 319).
20
See 1 Restatement (Third) of Torts: Liability for Physical and Emotional
Harm (2010) and 2 Restatement (Third) of Torts: Liability for Physical
and Emotional Harm (2012).
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
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party. 21 It provides similarly that an actor whose conduct has
not created a risk of physical harm to another has no duty of
care to the other unless an affirmative duty created by another
circumstance is applicable. 22 However, “‘[a]n actor in a special
relationship with another owes a duty of reasonable care to
third persons with regard to risks posed by the other that arise
within the scope of the relationship.’” 23 Specifically, § 41(b)
of the Restatement (Third) identifies four special relationships
that give rise to such a duty: “(1) a parent with dependent chil-
dren, (2) a custodian with those in its custody, (3) an employer
with employees when the employment facilitates the employ-
ee’s causing harm to third parties, and (4) a mental-health pro-
fessional with patients.” 24
As the parties agree, the special relationship here, if any,
was one based on custody. We have never before adopted
§ 41(b) of the Restatement (Third) recognizing that the rela-
tionship between a mental-health professional and patients
gives rise to a generalized duty of reasonable care, nor do we
do so here.
[10,11] We have twice before recognized that having cus-
tody over another person creates a special relationship. 25 In
Rodriguez I, we adopted § 41(b)(2) of the Restatement (Third)
as “consistent with our jurisprudence and prudent.” 26 A custo-
dial relationship “need not be ‘full-time physical custody giv-
ing the custodian complete control over the other person.’” 27
But “to the extent that ‘there is some custody and control
of a person posing dangers to others, the custodian has an
21
Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).
22
Id.
23
Id. at 1034, 809 N.W.2d at 492 (quoting 2 Restatement (Third), supra note
20, § 41(a)). See, also, 2 Restatement (Third), supra note 20, § 37.
24
2 Restatement (Third), supra note 20, § 41(b) at 65.
25
See, Rodriguez I, supra note 4; Ginapp, supra note 21.
26
Rodriguez I, supra note 4, 297 Neb. at 12, 899 N.W.2d at 236.
27
Id. (quoting 2 Restatement (Third), supra note 20, § 41, comment f.).
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RODRIGUEZ v. LASTING HOPE RECOVERY CTR.
Cite as 308 Neb. 538
affirmative duty to exercise reasonable care, consistent with the
extent of custody and control.’” 28
Based on this rule of duty in a custodial special relationship,
we concluded in Rodriguez I that the Special Administrators
had alleged sufficient facts to survive a motion to dismiss.
In Rodriguez I, on review of the district court’s order grant-
ing dismissal, we accepted as true the Special Administrators’
allegations in the amended complaint that Loyd was admitted
to Lasting Hope on August 8, 2013, under emergency protec-
tive custody; held involuntarily there for 6 days, during which
Loyd sufficiently communicated to Benton threats of physical
violence against Melissa; and allowed to “le[ave] Lasting Hope
on his own, without supervision, being questioned or stopped,
and without Lasting Hope even noticing he was gone.” If facts
supported these allegations, we found that such facts could
have given rise to the defendants’ duty to warn and protect
Melissa from Loyd.
After this court’s remand and some discovery, however,
the district court granted summary judgment to the UNMC
Defendants and the Lasting Hope Defendants. The district
court found uncontroverted evidence that rebutted two of the
Special Administrators’ essential allegations in the amended
complaint. Specifically, the district court held first that because
Loyd had never communicated to Benton or other Lasting
Hope staff that he intended to harm Melissa, no duty to warn
her could arise. Second, the district court held that because, by
the time of Melissa’s murder, Loyd had been discharged from
Lasting Hope “pursuant to the opinion of [Benton,] a qualified
psychiatrist,” any custodial duty to protect Melissa had termi-
nated. We review each holding in turn.
(a) Duty to Warn
The Special Administrators’ first argument against sum-
mary judgment concerns the very language of this court’s
28
Id.
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precedent. They concede that the facts do not support their
allegation in the amended complaint that Loyd actually com-
municated to Benton any intent to harm Melissa. Yet, the
Special Administrators invite us to “reconsider” whether such
actual communication is necessary. 29 They contend that recon-
sideration of this requirement would allow this court to “depart
from the current narrow and punitive application that liability
for failure to warn can only exists [sic] if the eventual assailant
or murder[er] directly so states their future plans of murder or
mayhem to their psychiatrist or mental health provider.” 30
We determined the extent of psychiatrists’ duty to warn and
protect third-party victims from their patients in Munstermann
v. Alegent Health. 31 There, the family of a woman murdered
by her boyfriend sued the hospital and psychiatrist that had
treated the boyfriend in inpatient care. The family alleged that
the psychiatrist had proximately caused the woman’s death by
failing to take reasonable measures to warn and protect her
from the boyfriend’s violent behavior and homicidal ideation.
The jury was instructed that this was an action based upon a
claim of malpractice and that the question was whether the
defendants had exercised reasonable care consistent with the
circumstances to protect third parties from the boyfriend in
inpatient treatment.
But we specifically found that those jury instructions were
inconsistent with principles set forth by our Legislature. 32 We
noted that although no statute explicitly addressed the duty
of psychiatrists to warn and protect, other statutes addressed
such duty for mental health professionals and psychologists,
respectively. 33 Namely, the Mental Health Practice Act 34 and
29
Brief for appellants at 25.
30
Id.
31
Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 (2006).
32
Id.
33
Id.
34
See Neb. Rev. Stat. §§ 38-2102 to 38-2139 (Reissue 2016 & Cum. Supp.
2020).
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the Psychology Practice Act 35 each contain limits on their duty
in connection with treating patients with mental illness.
These limits were statutorily enacted in response to the
California Supreme Court’s decision in Tarasoff v. Regents
of University of California, 36 which held that a psychother­
apist who knows or should know that a patient poses a serious
danger of violence to a third party owes a duty to exercise
reasonable care to warn and protect that third party. According
to Tarasoff, a therapist’s relationship with a patient affords the
therapist control and authority over the patient in a way that
closely resembles a custodian’s control and authority over a
person in custody. This special relationship thus requires the
therapist to exercise reasonable care, depending on the circum-
stances, toward potential third-party victims of the patient. 37
For example, if the identity of a patient’s potential victim is
known, reasonable care might require the therapist to, at least,
warn the victim; but if no victim is reasonably identifiable,
reasonable care might require the therapist to take other protec-
tive precautions, such as maintaining or asserting custody over
the patient or warning law enforcement or other appropriate
officials of the danger. 38
Like legislatures in many other states, the Nebraska
Legislature moved quickly after Tarasoff to circumvent a simi-
larly sweeping rule in Nebaska and, instead, to restrict ther­
apists’ duty to warn and protect potential victims of patients’
experiencing mental illness. 39 Sections 38-2137(1) and
38-3132(1) limited liability for any mental health practitioner
35
See Neb. Rev. Stat. §§ 38-3101 to 38-3133 (Reissue 2016 & Cum. Supp.
2020).
36
Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d
334, 131 Cal. Rptr. 14 (1976).
37
See id.
38
See id. See, also, John G. Fleming & Bruce Maximov, The Patient or His
Victim: The Therapist’s Dilemma, 62 Cal. L. Rev. 1025 (1974).
39
See Munstermann, supra note 31.
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Cite as 308 Neb. 538
or psychologist whose patient communicated to him or her
a serious threat of physical violence against himself, herself, or
another reasonably identifiable victim. 40
[12] In Munstermann, we concluded that although neither
of these statutes explicitly addressed the potential liability of
psychiatrists, there was no rational basis for the Legislature to
have intended a psychiatrist’s duty to be bound by a different
standard. Thus, under the Munstermann rule:
[A] psychiatrist is liable for failing to warn of and protect
from a patient’s threatened violent behavior, or failing
to predict and warn of and protect from a patient’s vio-
lent behavior, when the patient has communicated to the
psychiatrist a serious threat of physical violence against
himself, herself, or a reasonably identifiable victim or
victims. The duty to warn of or to take reasonable precau-
tions to provide protection from violent behavior shall
arise only under those limited circumstances . . . and shall
be discharged by the psychiatrist if reasonable efforts are
made to communicate the threat to the victim or victims
and to a law enforcement agency. 41
[13] Where a statute has been judicially construed and
that construction has not evoked an amendment, it will be
presumed that the Legislature has acquiesced in the court’s
determination of the Legislature’s intent. 42 By now, more than
14 years have passed since our decision in Munstermann, and
in that time, the Legislature has not amended either of the
statutes on which the Munstermann rule is based. 43 Nor has
the Legislature adopted an alternative duty of psychiatrists to
warn and protect third parties from the psychiatrists’ patients.
As such, we view the Munstermann rule as having received
legislative acquiescence.
40
See id.
41
Id. at 847, 716 N.W.2d at 85.
42
Drought v. Marsh, 304 Neb. 860, 937 N.W.2d 229 (2020).
43
See §§ 38-2137(1) and 38-3132(1).
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[14,15] Since Munstermann, we have clarified that certain
language in the Munstermann rule is critical to properly limit
psychiatrists’ duty to third parties. “‘[A] duty to warn and
protect arises only if the information communicated to the psy-
chiatrist leads the psychiatrist to believe that his or her patient
poses a serious risk of grave bodily injury to another.’” 44 As
a result, the “‘question is whether a serious threat of physical
harm was actually “communicated” to the psychiatrist.’” 45
Because we do not find this line of cases to be in error,
we reject the Special Administrators’ invitation to reconsider
our requirement of actual communication. The Munstermann
rule is based on two statutes, duly enacted by the Nebraska
Legislature. Like the Munstermann rule, both statutes explicitly
require that for a duty to warn to arise, a serious threat of phys-
ical violence against a reasonably identifiable victim be “com-
municated” to a psychologist or mental health practitioner. 46 To
negate the requirement that a threat actually be communicated
to a psychiatrist would undermine the statutes on which the
Munstermann rule is based.
Moreover, the statutes on which Munstermann is based were
drafted to reflect the Legislature’s reasoned policy judgment.
The language in §§ 38-2137(1) and 38-3132(1) represents the
Legislature’s effort to strike the appropriate balance between
assuring patients that what they disclose to a mental health
care provider will be held in confidence and protecting the
safety of third parties the patient intends to harm. 47 “In other
words, the statutory language is the result of [the Legislature’s]
balancing risk and utility, considering the magnitude of the
risk, relationship of the parties, nature of the risk, opportunity
and ability to exercise care, foreseeability of the harm, and
44
Rodriguez I, supra note 4, 297 Neb. at 18, 899 N.W.2d at 239 (quoting
Munstermann, supra note 31) (emphasis supplied).
45
Id.
46
See §§ 38-2137(1) and 38-3132(1).
47
See Munstermann, supra note 31.
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public policy interest in the proposed solution.” 48 Because
these policy factors weighed equally for psychologists and
mental health practitioners as for psychiatrists, we found in
Munstermann that “[t]he Legislature has made a public policy
determination with respect to the Tarasoff duty that this court
is bound to respect” and apply to psychiatrists, as well. 49
[16] We “‘“‘proceed cautiously’”’” when our decision
would undermine a policy judgment of the Legislature, our
coequal branch. 50 And the Special Administrators have failed to
show that it would be proper to depart from the Legislature’s
reasoned judgment here. Accordingly, we decline to do so.
[17] Applying our precedent, we agree with the district
court’s analysis of the defendants’ duty to warn. As the district
court found, the Munstermann rule requires actual communica-
tion. 51 The term “actual communication” is not defined by stat-
utes. In this context, we construe its plain text to mean that the
patient must verbally express or convey to the psychiatrist his
or her prediction to commit physical violence against himself,
herself, or a reasonably identifiable victim or victims. 52
Here, it is uncontroverted that Loyd never actually commu-
nicated to Benton that he intended to harm Melissa. We noted
in Rodriguez I that if the Special Administrators’ claim were
supported by facts that Loyd had communicated to Benton a
serious threat of physical violence against Melissa, those facts
could give rise to a duty to warn. 53 But the undisputed facts
now in the record do not support that allegation.
Indeed, the only reasonably identifiable victim whom
Loyd conveyed an intent to physically harm was his mother.
48
Id. at 847, 716 N.W.2d at 84.
49
Id. at 846, 716 N.W.2d at 84. See, Tarasoff, supra note 36.
50
State ex rel. Veskrna v. Steel, 296 Neb. 581, 599, 894 N.W.2d 788, 801
(2017).
51
Rodriguez I, supra note 4.
52
See Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010).
53
See Rodriguez I, supra note 4.
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During Benton’s evaluations, Loyd specifically expressed an
intention to kill his mother in retaliation for his father’s death.
Based on these verbal expressions of threats, Benton ordered
Lasting Hope staff to call Loyd’s mother to warn her. And by
the time Benton had ordered Loyd’s discharge, she knew that
OPD was aware of Loyd’s threats of physical violence against
his mother, because Lasting Hope staff had discussed the
threats with OPD officers, who also warned Loyd’s mother.
As the Special Administrators now concede, Loyd never
expressed to Benton or anyone else at Lasting Hope that he
intended to harm Melissa. He never identified Melissa by
name or even by description in connection with his expression
of homicidal ideation. And to the extent that the outstanding
arrest warrant identified Melissa as the victim of Loyd’s past
misconduct, it did not amount to an actual communication by
Loyd, nor did it predict that he would commit physical vio-
lence against Melissa in the future. As a result, no duty to warn
Melissa was triggered under Munstermann. 54
The Special Administrators have failed to raise a dispute
about whether Loyd actually communicated to Benton that he
wished to physically harm Melissa. Instead, the record supports
the UNMC Defendants’ and the Lasting Hope Defendants’
argument for summary judgment that he did not. Accordingly,
we affirm the decision of the district court to grant summary
judgment for the defendants on the issue of duty to warn.
(b) Duty to Protect
As to the issue of duty to protect, the district court granted
summary judgment to the defendants by reasoning that to
the extent that they were Loyd’s custodians, they did not
breach their duty of reasonable care toward Melissa. The dis-
trict court reached this conclusion based on undisputed facts
that at the time of Melissa’s murder, Loyd had already been
discharged “pursuant to the opinion of [Benton,] a qualified
psychiatrist.” Given that any custodianship over Loyd had
54
See Munstermann, supra note 31.
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thus terminated, the district court held that no new duty of
reasonable care could arise to require Benton and Lasting
Hope to protect Melissa, a third party. Accordingly, summary
judgment was granted for the defendants on the issue of duty
to protect.
In arguing that summary judgment on this issue was in
error, the Special Administrators allege that the district court
viewed the relevant time period too narrowly. According
to the Special Administrators, instead of focusing only on
the period directly before Melissa’s death, the district court
should have found that the defendants were negligent because
of their actions and omissions before Loyd was discharged.
The Special Administrators cite the testimony of Dr. Bruce
Gutnik that in his medical judgment, Benton’s order to dis-
charge Loyd was premature. The defendants dispute that Loyd
was ever in Lasting Hope’s custody because, they claim, he
remained there voluntarily. Based on this factual dispute,
the Special Administrators contend that summary judgment
was inappropriate.
We agree that the question of whether Loyd was ever in
Lasting Hope’s custody for purposes of the special relation-
ship under the Restatement (Third), § 41(b)(2), 55 is a genuine
factual dispute here. 56 But we disagree that it is material to the
disposition of this case.
[18] In the summary judgment context, a fact is material
only if it would affect the outcome of the case. 57 But here,
even assuming arguendo that Loyd was in Lasting Hope’s cus-
tody while he was a patient there, the undisputed facts show
that Melissa’s death cannot be legally attributed to a breach
of duty by the defendants. We concur with the decision of
the district court to grant summary judgment to the defend­
ants, although we reach this decision not based on a lack of
55
See 2 Restatement (Third), supra note 20, § 41(b)(2).
56
See Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19
(2019).
57
Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).
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custody but instead because Loyd did not communicate to the
defendants that he intended to physically injure Melissa.
[19-21] As we stated above, our common law generally
imposes on actors an affirmative duty, to the extent of their
custody over another person, to protect third parties from
the person in custody. 58 This common-law duty requires the
actor to exercise reasonable care consistent with the extent
of custody and control. 59 We ask, what would a reasonable
person of ordinary prudence have done in the same or similar
circumstances? 60 Where reasonable minds can disagree about
whether reasonable care was followed, we generally leave the
question to the jury. 61
[22] But sometimes reasonable minds cannot disagree about
whether an actor exercised reasonable care. When an articulated
countervailing principle or policy warrants denying or limiting
liability in a particular class of cases, a court may decide that,
as a matter of law, the defendant has no duty or that the ordi-
nary duty of reasonable care requires modification. 62
[23,24] A determination of no duty as a matter of law should
be grounded in public policy and based upon legislative facts,
not adjudicative facts arising out of the particular circumstances
of the case. 63 And such determination should be explained and
justified based on articulated policies or principles that justify
exempting the actor from liability or modifying the ordinary
duty of reasonable care. 64
58
See Rodriguez I, supra note 4.
59
See id.
60
See id.
61
See Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019). See,
also, 1 Restatement (Third), supra note 20, § 8.
62
McReynolds v. RIU Resorts & Hotels, 293 Neb. 345, 880 N.W.2d 43
(2016). See, also, 1 Restatement (Third), supra note 20, § 7(b).
63
See McReynolds, supra note 62.
64
Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015). See,
also, 1 Restatement (Third), supra note 20, § 7, comment j.
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Here, there is such a countervailing policy to warrant a find-
ing that, as a matter of law, no duty to protect was triggered.
As analyzed above, the first duty implicated by Munstermann
is the psychiatrist’s duty to warn. 65 But by its plain language,
the Munstermann rule applies equally to the psychiatrist’s duty
to protect.
In each clause of the Munstermann rule that limits psychia-
trists’ duty to warn, there is an equal limitation on their duty to
protect. For example, psychatrists’ liability is limited for “fail-
ing to warn of and protect from a patient’s threatened violent
behavior, or failing to predict and warn of and protect from a
patient’s violent behavior” unless the patient has communi-
cated to the psychiatrist a serious threat of physical harm. 66
And “[t]he duty to warn of or take reasonable precautions to
provide protection from violent behavior shall arise only under
those limited circumstances . . . .” 67 To the extent that any
duty to warn and protect does arise, it “shall be discharged by
the psychiatrist if reasonable efforts are made to communi-
cate the threat to the victim or victims and to a law enforce-
ment agency.” 68
As recounted above, with the Legislature’s acquiescence,
we adapted these statements in the Munstermann rule directly
from the Legislature’s identical limitations on mental health
practitioners’ and psychologists’ liability. 69 The Legislature
explicitly enacted these limitations in response to Tarasoff and,
with them, fashioned a state policy “to preempt an expansive
ruling [in Nebraska] that a therapist can be held liable for
the mere failure to predict potential violence by his or her
65
See Munstermann, supra note 31.
66
Munstermann, supra note 31, 271 Neb. at 847, 716 N.W.2d at 85 (emphasis
supplied).
67
Id. (emphasis supplied).
68
Id.
69
See §§ 38-2137(1) and 38-3132(1).
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patient.” 70 Just as failure to warn claims are premised in part
on psychiatrists’ duty to predict their patients’ future violence,
so too are failure to protect claims. Accordingly, we view the
Munstermann rule as an accurate determination of state policy
with respect to the duty of psychiatrists to warn—and pro-
tect—third parties from their patients’ violent behavior.
Our survey of other jurisdictions indicates that we are far
from alone in applying a limiting rule to the duty to warn and
protect in this way. Except for those jurisdictions that have spe-
cifically stated in court rule 71 or statute 72 that the duties to warn
and protect should be disengaged from each other and analyzed
separately, most jurisdictions have opted to analyze the duty to
warn and protect as one, like Tarasoff did. 73 For example, the
legislatures in both Louisiana and Michigan codified statutes
nearly identical to the Munstermann rule, 74 and appellate courts
have interpreted the statutes to foreclose the liability of ther­
apists for failing to warn and protect third parties from patients
unless a patient has communicated to the therapist a reasonably
identifiable victim. 75
[25] Likewise, in accord with this state’s determination of
policy set forth in Munstermann, we apply a rule of no duty
70
Munstermann, supra note 31, 271 Neb. at 846, 716 N.W.2d at 84 (citing
Ewing v. Goldstein, 120 Cal. App. 4th 807, 15 Cal. Rptr. 3d 864 (2004)).
See Tarasoff, supra note 36.
71
See, e.g., Texas Home Management, Inc. v. Peavy, 89 S.W.3d 30 (Tex.
2002).
72
See, e.g., Paul S. Appelbaum et al., Statutory Approaches to Limiting
Psychiatrists’ Liability for Their Patients’ Violent Acts, 146 Am. J.
Psychiatry 821 (1989) (citing the American Psychiatric Association’s
model statute).
73
See Alan R. Felthous & Claudia Kachigan, To Warn and to Control: Two
Distinct Legal Obligations or Variations of a Single Duty to Protect? 19
Behav. Sci. & L. 355 (2001). See, also, Tarasoff, supra note 36.
74
See, La. Stat. Ann. § 9:2800.2 (2018); Mich. Comp. Laws Ann. § 330.1946
(West 1999).
75
See, e.g., Hines v. Bick, 566 So. 2d 455 (La. App. 1990); Swan v.
Wedgwood Family Services, 230 Mich. App. 190, 583 N.W.2d 719 (1998).
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as a matter of law to limit a psychiatrist’s liability for failing
to warn or protect third parties injured by a patient. 76 Under
our decision in Munstermann, psychiatrists owe no duty as a
mater of law to third parties for physical injuries caused by a
patient who has not actually communicated a threat of physical
violence. And once such an actual communication has taken
place, any duty to warn or protect on the part of the psychia-
trist can be discharged by reasonable efforts to communicate
the threat to the victim and a law enforcement agency. 77
Here, the Special Administrators rightly frame their claim
as one based on the defendants’ duty to protect Melissa,
a third party, from Loyd. Specifically, they allege that the
defendants failed to protect her by failing to turn Loyd over
to OPD on August 12, 2013, and by prematurely discharging
Loyd from Lasting Hope on August 14 without notifying OPD
and Melissa.
As the undisputed facts show, both of these alleged breaches
of duty are attributable to the actions or omissions of Benton.
She was “ultimately responsible” for Loyd’s treatment and
discharge. 78 As Loyd’s treating psychiatrist, Benton conducted
the initial intake evaluation of Loyd and determined that
he needed to be hospitalized at Lasting Hope for 5 to 7
days. Based on the initial evaluation, she then determined that
despite Loyd’s attempt to turn himself in to OPD on August
12, 2013, he needed further treatment and was not yet ready to
be discharged from Lasting Hope. She communicated this to
OPD officers via Lasting Hope staff, who merely relayed her
determination. The OPD officers then left Lasting Hope with-
out arresting Loyd, apparently accepting Benton’s psychiatric
determination of Loyd’s condition.
On August 14, 2013, as well, it was because of Benton’s
order as Loyd’s treating psychiatrist that Loyd was dis-
charged. Even if, as the Special Administrators allege, Lasting
76
See Munstermann, supra note 31.
77
Id.
78
See Wilson v. Valley Mental Health, 969 P.2d 416, 420 (Utah 1998).
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Hope staff had failed on August 12 to document OPD’s
request to arrest Loyd upon his discharge, it is undisputed
that Benton knew of Loyd’s outstanding arrest warrant. Still,
based on her medical judgment, Benton determined that Loyd
no longer posed a risk to himself or others and ordered him
discharged to the public. The order to discharge Loyd was
solely Benton’s.
In this way, the uncontroverted facts show that Benton
made both of the decisions that the Special Administrators
allege allowed Loyd to be able to murder Melissa. Benton
made these decisions via the authority delegated to her as
Lasting Hope’s agent and UNMC Physicians’ employee. 79 As
the undisputed facts show, the UNMC Defendants and the
Lasting Hope Defendants did not negligently hire, train, or
­otherwise delegate authority to Benton to treat Loyd, nor are
these claims specifically assigned in the Special Administrators’
briefs. The failure to protect claim is entirely based on the
alleged duty and breach of Benton, a psychiatrist, to pro-
tect Melissa, a third party, from Benton’s patient, Loyd.
Accordingly, given these undisputed facts now before us, we
hold that the Special Administrators’ claim is controlled by the
Munstermann rule, not by the Restatement (Third), § 41, duty
of reasonable care. 80
In Rodriguez I, we assumed that the Special Administrators’
allegations in the amended complaint were all true, includ-
ing the allegation that Loyd had “‘sufficiently communi-
cated’” to Benton and Lasting Hope staff threats of violence
against Melissa. 81 If that allegation were supported by facts,
we found that those facts could have given rise to a duty on
the part of the defendants to warn and protect Melissa. 82 We
79
See RM Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326,
886 N.W.2d 240 (2016).
80
See, Munstermann, supra note 31; 2 Restatement (Third), supra note 20,
§ 41.
81
See Rodriguez I, supra note 4, 297 Neb. at 15, 899 N.W.2d at 237.
82
See Rodriguez I, supra note 4.
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affirm that analysis here and add that any defendant to whom
Loyd had actually communicated a threat of physical violence
against Melissa could have discharged the Munstermann duty
to warn and protect by notifying Melissa and a law enforce-
ment agency of the threat. 83
But, as analyzed above, the uncontroverted evidence in the
record shows that Loyd’s lack of communicated threats against
Melissa meant that no duty to warn or protect was triggered
for the defendants. Despite the Special Administrators’ allega-
tions in the amended complaint, they have failed to offer any
evidence that Loyd actually communicated to Benton or other
Lasting Hope staff that he wished to commit physical violence
against Melissa. As a result, under the Munstermann rule, the
Special Administrators’ duty to protect claim fails as a matter
of law.
We concur with the decision of the district court to grant
the defendants’ motions for summary judgment on the Special
Administrators’ duty to protect claim. The undisputed facts
show that Melissa’s death is not legally attributable to a
breach of duty by the UNMC Defendants or the Lasting
Hope Defendants, because Loyd never actually communi-
cated to them that he intended to harm Melissa. The Special
Administrators’ first assignment of error is without merit.
2. Exclusion of Affidavits
The Special Administrators’ second assignment of error is
that the district court wrongfully excluded their affidavits in
opposition to the defendants’ motions for summary judgment.
Under Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020),
after a motion for summary judgment has been filed, “[t]he
adverse party prior to the day of hearing may serve oppos-
ing affidavits.” 84 In opposition to the defendants’ motions
for summary judgment scheduled for a hearing on Monday,
October 7, 2019, the Special Administrators served six
83
See Munstermann, supra note 31.
84
See Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).
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affidavits on Sunday, October 6. Thus, under the plain text of
§ 25-1332, the Special Administrators claim, it was error for
the district court to exclude the affidavits, served the day prior
to hearing, as untimely.
[26,27] We need not decide whether the district court erred
in excluding the Special Administrators’ affidavits because,
even assuming arguendo that the district court did err, such
error would not be reversible error. The admission or exclu-
sion of evidence is not reversible error unless it unfairly preju-
diced a substantial right of the complaining party. 85 Erroneous
exclusion of evidence does not require reversal if the evidence
would have been cumulative and other relevant evidence, prop-
erly admitted, supports the trial court’s finding. 86
Here, besides the six affidavits offered by the Special
Administrators, 18 other exhibits supported the defendants’
motions for summary judgment. A review of the Special
Administrators’ six affidavits reveals that they would not have
presented disputes of material fact. They are largely cumula-
tive. They consist of 526 pages of witness statements com-
menting on Loyd’s mental health and his actions during and
after his stay at Lasting Hope. To the extent that the affidavits
contain noncumulative evidence, such as expert testimony and
a report from Gutnik and an affidavit from Loyd, we have
reviewed that evidence and find that it does not dispute the
issues of material fact discussed above in this opinion.
Because the Special Administrators fail to show prejudice,
a prerequisite for reversible error, their second assignment of
error is without merit.
VI. CONCLUSION
Melissa’s death was a tragedy, and we recognize that
the outcome we reach today may seem harsh to the Special
Administrators. But our review of the undisputed evidence
in the record has found no grounds on which Melissa’s death
85
See AVG Partners I, supra note 12.
86
See id.
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can be legally attributed to any duty owed by these defend­
ants. Therefore, we concur with the decision of the district
court to deny relief to the Special Administrators.
The district court’s order granting the defendants’ motions
for summary judgment is affirmed.
Affirmed.
Funke, J., not participating.
Papik, J., concurring.
The majority opinion finds that defendants are entitled to
summary judgment because each of the allegedly negligent
acts was committed by Dr. Benton, a psychiatrist; because in
Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73
(2006), we held that a psychiatrist’s duty to take precautions
with respect to potentially dangerous patients is triggered only
in limited circumstances; and because there is no evidence
those circumstances were present here. I agree with the major-
ity that the rule we adopted in Munstermann stands as a barrier
to the Special Administrators’ claims in this case, but I write
separately to express my reservations about the analysis the
court used to arrive at its holding in Munstermann.
The suit in Munstermann arose out of a psychiatric patient’s
murder of his estranged girlfriend. The personal representa-
tive of the victim’s estate brought suit against a psychiatrist
who had seen the patient shortly before the murder and against
the hospital at which the psychiatrist worked. Notes regarding
the psychiatrist’s observation of the patient indicated that the
patient “‘was thinking of hurting [his] girlfriend . . . since she
is hurting him.’” Id. at 837, 716 N.W.2d at 78. After the jury
was unable to reach a verdict and the district court declared
a mistrial, the defendants unsuccessfully moved for judgment
notwithstanding the verdict and then appealed.
The threshold issue on appeal was whether and to what
extent the defendants owed the victim a legal duty. Identifying
such a duty and defining the scope thereof was crucial because
of the general tort rule that, in the absence of certain carefully
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defined special relationships, there is no duty to prevent a
third party from causing harm to another. See Restatement
(Second) of Torts, § 315(a) (1965). See, also, Bell v. Grow
With Me Childcare & Preschool, 299 Neb. 136, 907 N.W.2d
705 (2018).
In our duty analysis in Munstermann, we extensively dis-
cussed two statutes. One provided that licensed mental health
practitioners (a category defined by statute to exclude psy-
chiatrists and other physicians) could be held liable for failing
to warn and provide protection from a patient’s threatened
violent behavior “when the patient has communicated to the
mental health practitioner a serious threat of physical violence
against himself, herself, or a reasonably identifiable victim
or victims,” but that there was no duty to warn or protect in
any other circumstances. Neb. Rev. Stat. § 71-1,336 (Reissue
2003). The same statute provided that the duty described could
be discharged if the practitioner made reasonable efforts to
communicate the threat to the victim or victims and to a law
enforcement agency. Id. The other statute, Neb. Rev. Stat.
§ 71-1,206.30 (Reissue 1996), provided that essentially the
same rules applied to psychologists.
We acknowledged that the statutes governing the duties of
licensed mental health practitioners and psychologists did not
apply to psychiatrists and that a psychiatrist’s duty was thus
“still controlled by common law.” Munstermann v. Alegent
Health, 271 Neb. 834, 845, 716 N.W.2d 73, 83 (2006). We
went on to say, however, that while those statutes “‘may not be
literally applicable, [they are] clearly indicative of legislatively
approved public policy.’” Id. at 846, 716 N.W.2d at 84 (quot-
ing Parson v. Chizek, 201 Neb. 754, 272 N.W.2d 48 (1978)).
We then concluded that because the Legislature had made a
public policy determination in these statutes that licensed men-
tal health practitioners and psychologists should have a duty to
warn and protect third parties from potentially violent patients
but only in limited circumstances, psychiatrists should have
the same limited duty. Accordingly, we held that the limited
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duties governing licensed mental health practitioners and psy-
chologists also applied to psychiatrists:
We hold, in accord with §§ 71-1,1206.30(1) and 71-1,336,
that a psychiatrist is liable for failing to warn of and pro-
tect from a patient’s threatened violent behavior, or failing
to predict and warn of and protect from a patient’s vio-
lent behavior, when the patient has communicated to the
psychiatrist a serious threat of physical violence against
himself, herself, or a reasonably identifiable victim or
victims. The duty to warn of or to take reasonable precau-
tions to provide protection from violent behavior shall
arise only under those limited circumstances, and shall
be discharged by the psychiatrist if reasonable efforts are
made to communicate the threat to the victim or victims
and to a law enforcement agency.
Munstermann, 271 Neb. at 847, 716 N.W.2d at 85.
We seem to have concluded in Munstermann that the spe-
cific statutes the Legislature enacted concerning licensed men-
tal health practitioners and psychologists demonstrated that the
Legislature was generally in favor of limited duties to warn and
protect for all professionals who assist individuals with mental
health issues or at least all professionals sufficiently similar to
licensed mental health practitioners and psychologists. We thus
applied those limited duties to psychiatrists as well.
I question this approach. Specifically, I question whether it
is appropriate for a court to find that the text of a statute does
not apply to a particular subject or circumstance, but that the
statute nonetheless expresses a generalized public policy the
court should strive to recognize as legally applicable to that
subject or circumstance.
I concede that this mode of analysis—identifying a general
public policy or legislative purpose from a statute and then
applying that policy or purpose more broadly than the statutory
text itself—was once not uncommon as a method of statu-
tory interpretation. A late-19th-century U.S. Supreme Court
case, Holy Trinity Church v. United States, 143 U.S. 457, 12
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S. Ct. 511, 36 L. Ed 226 (1892), is often cited as emblem-
atic of the approach of that era. See, e.g., Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts (2012); Amy Coney Barrett, Congressional Insiders and
Outsiders, 84 U. Chi. L. Rev. 2193 (2017); John F. Manning,
Second-Generation Textualism, 98 Cal. L. Rev. 1287 (2010).
In Holy Trinity Church, a statute prohibited assisting or
encouraging the importation of foreign nationals “‘to perform
labor or service of any kind in the United States.’” 143 U.S.
at 458. The question presented was whether the statute applied
when a church paid for a man from England to come to New
York to serve as its pastor. Another section of the statute pro-
vided specific exceptions for “professional actors, artists, lec-
turers, singers and domestic servants.” Id., 143 U.S. at 458-59.
Although the Court concluded that the transportation of the
pastor was covered by the broad prohibition and did not fall
within any of the specific exceptions, it nonetheless held the
statute did not apply. Based on a number of considerations,
including the legislative history and title of the statute, the
Court found that the purpose of the statute was to prohibit
only the importation of manual labor. The Court described its
rationale this way: “[A] thing may be within the letter of the
statute and yet not within the statute, because not within its
spirit, nor within the intention of its makers.” Id., 143 U.S.
at 459.
More recently, the Holy Trinity Church approach has come
under criticism and fallen out of favor. See, e.g., Scalia &
Garner, supra at 12 (“Holy Trinity is a decision that the
Supreme Court stopped relying on more than two decades
ago”); Barrett, supra, 84 U. Chi. L. Rev. at 2195 (“[t]he claim
that it is permissible to depart from clear text in the service
of congressional purpose—an approach epitomized by Church
of the Holy Trinity v. United States—has fallen into dis­
repute”); Abbe R. Gluck, Imperfect Statutes, Imperfect Courts:
Understanding Congress’s Plan in the Era of Unorthodox
Lawmaking, 129 Harv. L. Rev. 62, 90 (2015) (“Church of
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the Holy Trinity v. United States—oft-maligned for its state-
ment that statutory ‘spirit’ may trump the plain ‘letter of the
statute’—is long since dead”); Manning, supra, 98 Cal. L.
Rev. at 1313 (opining that Holy Trinity Church no longer
falls within “the mainstream of the [U.S. Supreme] Court’s
jurisprudence”).
In my view, the Holy Trinity Church approach is difficult
to defend. It is undoubtedly true that statutes are passed to
achieve policies and purposes. They do so, however, through
legislatively selected means. And if a court can identify and
enforce what it believes to be the general policy behind leg-
islation rather than the details actually enacted in the text, it
is selecting its own means rather than respecting those chosen
by the legislative branch. See, e.g., MCI Telecommunications
Corp. v. American Telephone & Telegraph Co., 512 U.S. 218,
231 n.4, 114 S. Ct. 2223, 129 L. Ed. 2d 182 (1994) (observ-
ing that courts are “bound, not only by the ultimate purposes
[a legislature] has selected, but by the means it has deemed
appropriate, and prescribed, for the pursuit of those purposes”);
Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev.
533 (1983) (arguing that adherence to text respects legislative
choice of means).
The elevation of a judicially recognized general policy over
specifically enacted legislative text is particularly problem-
atic because legislation is often the product of compromise.
If courts brush aside the details of the text in favor of what
they believe to be the general purpose of the legislation, prior
compromises will be disrespected and future compromises
will be more difficult to reach. See Henson v. Santander
Consumer USA Inc., ___ U.S. ___, 137 S. Ct. 1718, 1725,
198 L. Ed. 2d 177 (2017) (quoting Rodriguez v. United States,
480 U.S. 522, 107 S. Ct. 1391, 94 L. Ed. 2d 533 (1987)
(concluding it is mistaken to assume that anything that fur-
thers “‘statute’s primary objective must be the law’” because
“[l]egislation is, after all, the art of compromise, the limitations
expressed in statutory terms often the price of passage . . .”);
John F. Manning, What Divides Textualists From Purposivists,
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106 Colum. L. Rev. 70, 96 (2006) (arguing that judicial adher-
ence to semantic text “is essential if one wishes legislators to
be able to strike reliable bargains”).
These considerations and others lead me to question our
conclusion in Munstermann v. Alegent Health, 271 Neb. 834,
716 N.W.2d 73 (2006), that there was a legislatively approved
policy requiring that psychiatrists have the same limited duty
to warn and protect that the Legislature applied to other profes-
sionals via specific statutes. The Legislature did enact limited
duties for some professionals, but whatever policy it hoped
to achieve through those statutes, they did not cover psychia-
trists. Perhaps that decision was intentional. Perhaps it was
­inadvertent. In either case, I do not understand the basis on
which we could conclude that the Legislature had directed that
psychiatrists have the same duty as these other professionals.
If anything, it seems to me one of our oft-used principles of
statutory interpretation would counsel in favor of the oppo-
site conclusion. See Rogers v. Jack’s Supper Club, 304 Neb.
605, 612, 935 N.W.2d 754, 761 (2019) (“[i]t is not within the
province of the courts to read meaning into a statute that is not
there or to read anything direct and plain out of a statute”).
See, also, Scalia & Garner, supra at 93 (discussing “Omitted-
Case Canon” requiring that matters not covered by a statute are
to be treated as not covered).
To be clear, I recognize that Munstermann did not find that
the statutes covering licensed mental health practitioners and
psychologists literally extended to psychiatrists, but, rather,
concluded those statutes should apply to psychiatrists in the
course of determining psychiatrists’ common-law duties. I see
little difference, however, between finding that the meaning of
a statute goes beyond its text in the course of interpreting a
statute and finding that a legislatively approved public policy
can be found in a statute not applicable to the subject at hand
in the course of common-law analysis.
But while I have reservations about the path we took to
arrive at our holding in Munstermann, we have continued to
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rely on that holding in subsequent cases, no party in this case
asks us to reconsider the portion of the decision extending the
limited duties applicable to licensed mental health practitioners
and psychologists to psychiatrists, and, if such an argument
were made, it would have to reckon with the doctrine of legis-
lative acquiescence. I also do not disagree with the majority’s
conclusion that the Special Administrators’ theory of liability is
inconsistent with the rule adopted in Munstermann, and thus,
I concur in the decision affirming summary judgment. For the
reasons set forth herein, however, I would be reluctant in a
future case to conclude that a statute is indicative of a legisla-
tively approved public policy on a given subject if the text of
that statute does not apply to that subject.
Stacy, J., joins.