Sinu v. Concordia University , 313 Neb. 218 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/13/2023 09:10 AM CST
- 218 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218Konrad Sinu and Lidia Szurlej, appellants,
v. Concordia University, appellee.
___ N.W.2d ___
Filed January 13, 2023. No. S-21-959.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted 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.
2. ____: ____. In reviewing the grant of a motion for summary judgment,
an appellate court views the evidence in the light most favorable to the
party against whom the judgment was granted, giving that party the
benefit of all reasonable inferences deducible from the evidence.
3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late court reviews a district court’s denial of a motion to amend under
Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an
appellate court reviews de novo any underlying legal conclusion that the
proposed amendments would be futile.
4. Contracts: Words and Phrases. An exculpatory clause is a contractual
provision relieving a party from liability resulting from a negligent or
wrongful act.
5. Contracts: Intent. Exculpatory clauses are enforceable only where
and to the extent that the intention to be relieved was made clear and
unequivocal in the contract, and the wording must be so clear and under-
standable that an ordinary and knowledgeable party will know what he
or she is contracting away.
6. Contracts: Words and Phrases. An exculpatory clause is governed by
principles generally applied in construction or interpretation of other
contracts.
7. Contracts: Negligence: Liability: Intent. If there is no specific refer-
ence to liability for negligence, it must otherwise clearly appear from
the language used or from a determination that no other meaning could
- 219 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218be ascribed to the contract such that the court is firmly convinced that
such interpretation reflects the intention of the parties.
8. Contracts: Words and Phrases. An exculpatory clause, like a contract,
is ambiguous when a word, phrase, or provision in the contract has, or
is susceptible of, at least two reasonable but conflicting interpretations
or meanings.
9. Contracts: Intent. A contract which is written in clear and unambigu-
ous language is not subject to interpretation or construction; rather, the
intent of the parties must be determined from the contents of the con-
tract, and the contract must be enforced according to its terms.
10. Contracts: Public Policy. Courts should be cautious in holding con-
tracts void on the ground that the contract is contrary to public policy;
to be void as against public policy, the contract should be quite clearly
repugnant to the public conscience.
11. ____: ____. Whether a particular exculpatory clause in a contractual
agreement violates public policy depends upon the facts and circum-
stances of the agreement and the parties involved.
12. Contracts. An essential fact in determining unconscionability is the
disparity in respective bargaining positions of parties to a contract.
13. 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.
14. Rules of the Supreme Court: Pleadings: Appeal and Error. When a
party seeks leave to amend a pleading, appellate court rules generally
require that leave shall be freely given when justice so requires. Denial
of leave to amend pleadings is appropriate only in those limited cir-
cumstances in which undue delay, bad faith on the part of the moving
party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
15. Pleadings: Pretrial Procedure: Summary Judgment. When a motion
for leave to amend a pleading is filed after a motion for summary judg-
ment but before discovery is closed, the standard for assessing the futil-
ity of the amendment turns on whether there was a sufficient opportunity
for discovery.
16. ____: ____: ____. When a motion for summary judgment has been filed
and a party seeking leave to amend a pleading has had sufficient oppor-
tunity for discovery, futility is judged by whether the proposed amend-
ment could withstand a motion for summary judgment.
17. Pleadings: Evidence: Summary Judgment. A proposed amendment to
a pleading may be considered futile when the evidence in support of the
proposed amendment creates no triable issue of fact and the opposing
party would be entitled to judgment as a matter of law.
- 220 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 21818. Negligence: Words and Phrases. Gross negligence is great or exces-
sive negligence, which indicates the absence of even slight care in the
performance of a duty.
19. Negligence. Whether gross negligence exists must be ascertained from
the facts and circumstances of each particular case and not from any
fixed definition or rule.
20. Negligence: Summary Judgment. The issue of gross negligence is
susceptible to resolution in a motion for summary judgment.
Appeal from the District Court for Seward County: James C.
Stecker, Judge. Affirmed.
Jason G. Ausman and Michelle D. Epstein, of Ausman Law
Firm, P.C., L.L.O, for appellants.
David P. Kennison and Heidi A. Guttau, of Baird Holm,
L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Strong, District Judge.
Cassel, J.
I. INTRODUCTION
Based upon a waiver of liability signed by a student and his
mother, the district court granted a summary judgment reject-
ing their negligence claim against a university. The court also
refused an attempt—made after the summary judgment motion
was filed but before discovery closed—to amend the com-
plaint. They appeal.
We find no error in granting summary judgment. Although
the release did not mention negligence, its language was broad
and clear and did not contravene public policy.
On the denial of leave to amend, we first settle the standard
for assessing futility at that point. Because they had sufficient
opportunity for discovery and we agree that their proposed
amendments to add allegations of gross negligence would be
futile, we find no abuse of discretion. We affirm.
- 221 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218II. BACKGROUND
We begin with a brief background. Additional facts will be
incorporated, as necessary, in the analysis section.
Concordia University is a private institution in Nebraska. It
recruited Konrad Sinu (the student) to play for the university’s
intercollegiate men’s soccer team. The university provided the
student with soccer and academic scholarships. Before the stu-
dent moved to Nebraska from his home in England, he signed
an “Assumption of Risk and Waiver of Liability Release.”
Because the student was 18 years old, his mother also signed
the release.
Roughly 5 months after arriving at the university, the student
and his soccer teammates engaged in a mandatory strength
and conditioning workout at the university’s Walz Human
Performance Complex (the Walz). The workout involved cir-
cuit training in which the teammates moved from one exercise
station to another in small groups. One station consisted of
an exercise referred to as the “face pull.” In the exercise, an
elastic resistance band was secured to a squat rack post and
was pulled toward the user’s face. During the course of the
workout, teammates altered the band’s placement from how
a university employee originally set it. When the student
approached the squat rack, he observed the resistance band
resting on a “J-hook” of the squat rack. As the student per-
formed the exercise, the resistance band slid off the hook and
caused injury to his eyes.
The student and his mother sued the university, setting
forth a cause of action for negligence. The university asserted
numerous affirmative defenses in its responsive pleading. One
defense alleged that the claim was barred by the release signed
by the student and his mother. Another defense alleged that
the claim was barred by the doctrine of assumption of risk.
Some 4 months prior to the discovery deadline, the univer-
sity moved for summary judgment. Approximately 2 months
later and prior to the hearing on the university’s motion, the
student and his mother moved for leave to file an amended
complaint. They wished to add allegations that the university’s
- 222 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218willful and wanton or grossly negligent actions caused the stu-
dent’s injuries. Following a hearing on the motion to amend,
the court denied the motion.
After the discovery deadline and days before the scheduled
summary judgment hearing, the student and his mother filed
a renewed motion for leave to file an amended complaint.
The court again denied the motion for leave, finding that any
amendment would be futile.
The court held a hearing on the motion for summary judg-
ment and received a number of exhibits. It subsequently entered
summary judgment in the university’s favor and dismissed the
complaint with prejudice. In doing so, the court rejected argu-
ments that the release was unconscionable, that it did not
release the university from liability for its own negligence, and
that the release did not amount to an assumption of risk.
The student and his mother appealed, and we moved the
case to our docket. 1
III. ASSIGNMENTS OF ERROR
The student and his mother allege that the district court
erred in (1) granting summary judgment in the university’s
favor when genuine disputes remain as to material facts and
the ultimate inferences that a jury may draw from those facts
and (2) denying their motion for leave to file an amended com-
plaint when the proposed amended complaint stated a claim for
which relief could be granted.
IV. STANDARD OF REVIEW
[1] An appellate court will affirm 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. 2
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
2
Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 (2022).
- 223 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218[2] In reviewing the grant of a motion for summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted,
giving that party the benefit of all reasonable inferences deduc-
ible from the evidence. 3
[3] An appellate court reviews a district court’s denial of a
motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an
abuse of discretion. However, an appellate court reviews de
novo any underlying legal conclusion that the proposed amend-
ments would be futile. 4
V. ANALYSIS
1. Summary Judgment
This case is before us following the district court’s entry
of summary judgment in the university’s favor. To establish
entitlement to judgment as a matter of law, the university relied
on the release signed by the student and his mother. For sum-
mary judgment to be appropriate, the release must be valid and
enforceable. The student and his mother argue that it was not.
Before considering their challenges, we set forth the language
of the release and discuss exculpatory and indemnity clauses.
(a) Additional Facts
The entire release appeared on one side of a single page. The
title, “Assumption of Risk and Waiver of Liability Release,”
was displayed in large, boldface type. It then stated:
PLEASE READ THE FOLLOWING CAREFULLY.
If you have any questions or concerns, please visit with
an attorney before signing this document. This release
must be signed before participation in activities at [the
university] is allowed.
....
I acknowledge that my participation in certain activi-
ties including, but not limited to, intercollegiate athletics
3
Id.
4
Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021).
- 224 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218intramural sports, use of [the Walz], P.E. Center, [u]niver-
sity stadium field/track, adjacent [u]niversity athletic
fields and the City of Seward’s Plum Creek Park may be
hazardous, that my presence and participation are solely
at my own risk, and that I assume full responsibility for
any resulting injuries, damages, or death.
In consideration of being allowed to participate in such
activities and/or being provided access and the opportu-
nity to use the Walz and other [u]niversity facilities and
equipment, and in full recognition and appreciation of the
danger and risks inherent in such physical activity, I do
hereby waive, release and forever discharge the [u]niver-
sity, its officers, directors, agents, employees and repre-
sentatives, from and against any and all claims, demands,
injuries, actions or causes of action, for costs, expenses or
damages to personal property, or personal injury, or death,
which may result from my presence at or participation in
any such [u]niversity activities.
I further agree to indemnify and hold the [u]niver-
sity, its officers, directors, agents, employees and repre-
sentatives harmless from any loss, liability, damage or
costs including court costs and attorney’s fees incurred
as a result of my presence at or participation in any such
activities. I also understand that this [release] binds me,
my personal representatives, estate, heirs, next of kin
and assigns.
I have read the [release] and fully understand it and
agree to be legally bound by it.
Beneath a line for the student’s signature, the release con-
tained the following section, with boldface type as it appeared
on the document:
If 18 years of age or younger, signature of parent/
guardian is also required.
I, as the parent or guardian of the above-named minor,
have read the [release], fully understand it, and hereby
voluntarily agree and execute the [release] on behalf of
- 225 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218myself as well as the above-named minor and agree that
the minor and I are legally bound by it.
Below this section appeared a line for the parent’s or guard-
ian’s signature.
(b) Discussion
(i) Exculpatory and Indemnity Clauses
[4] The release is a type of exculpatory clause. An exculpa-
tory clause is “[a] contractual provision relieving a party from
liability resulting from a negligent or wrongful act.” 5 Such
clauses purport to deny an injured party the right to recover
damages from the very person or entity which negligently
caused the injury. 6
The release also contained an indemnity clause, but that
clause has not been a focal point of the litigation. We do not
express any opinion regarding the validity of the indemnity
clause contained in the release. However, we briefly discuss
indemnity clauses in general in order to distinguish them from
exculpatory clauses.
An indemnity clause is “[a] contractual provision in which
one party agrees to answer for any specified or unspecified
liability or harm that the other party might incur.” 7 Although
an indemnity clause may ultimately have the same effect as
an exculpatory clause, they differ. “An exculpatory clause
purports to deny an injured party the right to recover dam-
ages from the person negligently causing the injury, while
an indemnification clause attempts to shift the responsibil-
ity for the payment of damages to someone other than the
negligent party . . . .” 8 In some situations, the indemnity
clause shifts such responsibility back to the injured party,
5
Black’s Law Dictionary 712 (11th ed. 2019).
6
See 57A Am. Jur. 2d Negligence § 41 (2022).
7
Black’s Law Dictionary 919 (11th ed. 2019).
8
57A Am. Jur. 2d, supra note 6, § 43 at 86.
- 226 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218thereby yielding the same result as an exculpatory clause. 9
But “an indemnity provision generally does not apply to
claims between the parties to an agreement. . . . ‘Rather, [the
provision] obligates the indemnitor to protect the indem-
nitee against claims brought by persons not a party to the
provision.’” 10
[5] Both exculpatory and indemnity clauses must make
clear the effect of the agreement. And such a clause is strictly
construed against the party claiming its benefit. 11 “Exculpatory
clauses are enforceable only where and to the extent that the
intention to be relieved was made clear and unequivocal in the
contract, and the wording must be so clear and understandable
that an ordinary and knowledgeable party will know what he
[or she] is contracting away.” 12 Similarly, “[a]n agreement
which purports to indemnify the party who prepared it from
liability for that party’s own negligence . . . must be clear,
explicit and comprehensible in each of its essential details
[and] must clearly notify the prospective releasor or indemni-
tor of the effect of signing the agreement.” 13 With this under-
standing in place, we turn to the student and his mother’s
attacks on the release.
(ii) Clear Language
The student and his mother argue that the release did
not contain express or clear and unequivocal language that
the parties intended to release the university from its own
negligence. They are correct that the release does not use
words such as “negligence” or “fault.” But that does not end
the inquiry.
9
See id.10
Ganske v. Spence, 129 S.W.3d 701, 708 (Tex. App. 2004).
11
See, Annot., 175 A.L.R. 8, § 8 (1948); 57A Am. Jur. 2d, supra note 6; 17A
C.J.S. Contracts § 448 (2020). See, also, Dion v. City of Omaha, 311 Neb.
522, 973 N.W.2d 666 (2022).
12
57A Am. Jur. 2d, supra note 6, § 46 at 91.
13
Id., § 44 at 88.
- 227 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218[6,7] An exculpatory clause is governed by principles
generally applied in construction or interpretation of other
contracts. 14 The provision must be looked at as a whole and
given a reasonable construction. 15 If there is no specific ref-
erence to liability for negligence, it must otherwise clearly
appear from the language used or from a determination that
no other meaning could be ascribed to the contract such
that the court is firmly convinced that such interpretation
reflects the intention of the parties. 16 Here, the intended effect
was clear.
Start with the language of the release. In large, boldface
type at the top of the page appears the title, “Assumption of
Risk and Waiver of Liability Release.” The document then
states that “[i]n consideration of . . . being provided access
and the opportunity to use the Walz” and in recognition of
the “risks inherent in such physical activity, I do hereby . . .
release . . . the [u]niversity . . . from and against any and all
claims, demands, injuries, actions or causes of action, for
. . . personal injury . . . which may result from my pres-
ence at or participation in any such [u]niversity activities.”
(Emphasis supplied.)
Although the document does not mention negligence, it is
apparent that releasing the university from its own negligence
was the document’s intended consequence. As is evident from
the definition of an exculpatory clause set forth above, reliev-
ing a party from its own negligence is the very purpose of
an exculpatory clause. The language of the release clearly
demonstrates an intent to eliminate the university’s liability,
particularly when protecting the university from negligence
claims is the only reasonable construction. 17
14
See Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).
15
See Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103(2009).
16
Dion v. City of Omaha, supra note 11.
17
See 57A Am. Jur. 2d, supra note 6, § 49.
- 228 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218In some cases dealing with indemnity clauses, we have
found broad language to not be clear or unequivocal. In one
case, we determined that a reference to “‘any and all claims for
damage and liability for injury to or death of persons’” was not
sufficient to impose liability for an indemnitee’s negligence. 18
In another case, we stated that language that an indemnitor
would protect an indemnitee against “‘all risks and from any
claims that may arise out of or pertain to the performance of
such work,’” did not constitute express language covering the
indemnitee’s own negligence nor did it constitute clear and
unequivocal language that it was the parties’ intention to cover
the indemnitee’s own negligence. 19
But we are not addressing an indemnity clause here. As set
forth above, an exculpatory clause such as a release is not syn-
onymous with an indemnity clause. Because indemnity clauses
shift liability and may involve third parties, it is important to
specify whose negligence is being covered. But here, an obvi-
ous purpose of the release was to exempt the university from
its own negligence.
(iii) Ambiguity
For the same reason expressed above, we reject the student
and his mother’s claim that the release did not unambiguously
notify them that they were releasing the university from its
own negligence. While the release’s language may not have
explicitly used the word “negligence” or referenced the univer-
sity’s conduct, it was not ambiguous.
[8,9] An exculpatory clause, like a contract, is ambigu-
ous when a word, phrase, or provision in the contract has,
or is susceptible of, at least two reasonable but conflicting
18
Dion v. City of Omaha, supra note 11, 311 Neb. at 556, 973 N.W.2d at
690.
19
Anderson v. Nashua Corp., 251 Neb. 833, 840, 560 N.W.2d 446, 450
(1997).
- 229 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218interpretations or meanings. 20 A contract which is written in
clear and unambiguous language is not subject to interpretation
or construction; rather, the intent of the parties must be deter-
mined from the contents of the contract, and the contract must
be enforced according to its terms. 21
The release placed no liability on the university for any
injury suffered by the student. The language plainly stated that
the student released the university “from and against any and
all claims, demands, injuries, actions or causes of actions, for
costs, expenses or damages to personal property, or personal
injury, or death, which may result from my presence at or par-
ticipation in any such [u]niversity activities.” This language
covers “any” claim for ordinary negligence, which includes
any claim caused by the university’s ordinary negligence. We
see no ambiguity.
(iv) Unconscionable and
Against Public Policy
Even if clear and unambiguous, an exculpatory clause will
be unenforceable if it is unconscionable or void as against
public policy. The student and his mother advance several
reasons why they believe the release was unconscionable and
void as against public policy. Those reasons lack merit.
[10] To begin, courts are disinclined to find a contractual
agreement void as against public policy. Courts should be
cautious in holding contracts void on the ground that the con-
tract is contrary to public policy; to be void as against public
policy, the contract should be quite clearly repugnant to the
public conscience. 22 Stated differently, the power of courts
to invalidate contracts for being in contravention of public
20
See Community First Bank v. First Central Bank McCook, 310 Neb. 839,
969 N.W.2d 661 (2022).
21
New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25(1994).
22
SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
- 230 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218policy is a very delicate and undefined power which should be
exercised only in cases free from doubt. 23
[11] Whether a particular exculpatory clause in a contrac-
tual agreement violates public policy depends upon the facts
and circumstances of the agreement and the parties involved. 24
Public policy prevents a party from limiting its damages for
gross negligence or willful and wanton misconduct. 25 It is
important to note at this juncture that the student and his
mother’s claim is limited to ordinary negligence. We need
not address the release’s enforceability if the student and his
mother had alleged gross negligence.
[12] We have stated that an essential fact in determining
unconscionability is the disparity in respective bargaining posi-
tions of parties to a contract. 26 Other jurisdictions have adopted
a two-prong test for determining whether exculpatory clauses
are invalid as contrary to public policy: (1) whether there was
a disparity of bargaining power between the parties and (2) the
types of services being offered or provided. 27
There was no disparity in bargaining power. The student
emphasizes that he was an 18-year-old minor living on a dif-
ferent continent and believed he had to sign the release in
order to attend the university. He highlights that the second
sentence of the release stated it “must be signed before par-
ticipation in activities at [the university] is allowed.” But the
first sentence of the release informed the student to speak
with an attorney before signing the document if he had any
concerns. The student had a reasonable opportunity to under-
stand the terms of the contract. And because the student was
a minor, his mother also had to agree to the terms and sign
the release. The fact that the student was given the release
23
Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).
24
New Light Co. v. Wells Fargo Alarm Servs., supra note 21.
25
Id.
26
Myers v. Nebraska Invest. Council, supra note 23.
27
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982).
- 231 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218to sign a month prior to moving to Nebraska militates against
his compulsion argument. He could have gone elsewhere to
play soccer and attend college.
Further, the services offered by the university were not a
public or essential service. The university is a private school,
and the release related to a recreational activity. “Exculpatory
agreements in the recreational sports context do not impli-
cate the public interest and therefore are not void as against
public policy. Indeed, plaintiff’s ordinary negligence claims
may generally be barred where she or he voluntarily executes
exculpatory contract in order to participate in recreational or
nonessential activities.” 28 We conclude the release was not void
as against public policy.
Because the release was valid, it barred the student and his
mother’s negligence claim against the university. We conclude
the district court properly entered summary judgment in the
university’s favor.
(c) Assumption of Risk
[13] The student and his mother additionally argue that the
student did not assume the risk of the danger he confronted.
But because the release barred the student’s claim, we need not
also address whether the student assumed the risk of his injury.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. 29
2. Leave to Amend
The student and his mother twice sought leave to amend
their complaint to include allegations of gross negligence
and willful and wanton misconduct. The court denied both
requests. In considering whether the court abused its discre-
tion in doing so, we set forth the relevant procedural timeline
28
57A Am. Jur. 2d, supra note 6, § 62 at 112.
29
Schreiber Bros. Hog Co. v. Schreiber, 312 Neb. 707, 980 N.W.2d 890(2022).
- 232 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218and determine the standard of review applicable under the
circumstances.
(a) Additional Facts
The following timeline provides helpful context in consider-
ing the timing of the motions for leave to amend:
• 06/26/2019: complaint filed
• 08/14/2019: answer filed
• 11/02/2020: discovery deadline extended to 06/04/2021
• 11/02/2020: depositions of three university employees taken
• 11/19/2020: depositions of the student and his mother taken
• 12/02/2020: deposition of university employee taken
• 01/28/2021: motion for summary judgment filed
• 03/25/2021: motion for leave to file amended complaint
• 04/05/2021: court denied motion for leave
—allowed 45 days for disclosure of expert witness
—extended discovery deadline to 08/01/2021
—continued summary judgment hearing to 08/16/2021
• 05/19/2021: student’s expert witness disclosed
• 08/11/2021: renewed motion for leave to file amended complaint
(b) Discussion
[14] When a party seeks leave to amend a pleading, appel-
late court rules generally require that leave shall be freely
given when justice so requires. Denial of leave to amend
pleadings is appropriate only in those limited circumstances in
which undue delay, bad faith on the part of the moving party,
futility of the amendment, or unfair prejudice to the nonmov-
ing party can be demonstrated. 30 As the timeline demonstrates,
the student and his mother first sought leave to amend after the
university filed its motion for summary judgment but before
discovery closed. They filed a renewed request for leave to
amend after the discovery deadline.
Our case law has discussed the situation where leave is
sought before discovery is complete and before a motion
30
McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021).
- 233 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218for summary judgment is filed. If leave to amend is sought
before discovery is complete and before a motion for sum-
mary judgment has been filed, the question of whether such
amendment would be futile is judged by reference to Neb.
Ct. R. Pldg. § 6-1112(b)(6). 31 Leave to amend in such cir-
cumstances should be denied as futile only if the proposed
amendment cannot withstand a motion to dismiss under
§ 6-1112(b)(6). 32
Our case law has also addressed the situation where leave
is sought after discovery is closed and after a motion for sum-
mary judgment has been filed. After discovery is closed and
a motion for summary judgment has been filed, the appropri-
ate standard for assessing whether a motion to amend should
be determined futile is that the proposed amendment must
be not only theoretically viable but also solidly grounded in
the record and supported by substantial evidence sufficient to
give rise to a triable issue of fact. 33
Our case law has not directly addressed the situation here.
The student and his mother sought leave to amend the com-
plaint before the close of discovery but after the university
filed a motion for summary judgment.
A commentator has proposed a standard to evaluate futility
in such a situation. The commentator suggests that the standard
used “should depend on whether the plaintiff can establish that
it needs to engage [i]n discovery on the new matter alleged in
the amendment.” 34 The commentator explains:
A plaintiff who seeks leave to amend but who lacks
sufficient evidence to withstand a motion for summary
judgment directed at the new matter should file an affi-
davit explaining why it needs additional discovery to
develop a sufficient evidentiary basis for the new matter.
31
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
32
Id.33
Id.34
John P. Lenich, Nebraska Civil Procedure § 15:4 at 723 (2022).
- 234 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218If [the] court finds the explanation sufficient, then the
court should evaluate the futility of the amendment by
applying the standard for [a] motion to dismiss for failure
to state a claim. If the court finds the explanation insuf-
ficient, then the court should apply the standard for sum-
mary judgment. 35
[15] We agree with the commentator’s view. When a motion
for leave to amend a pleading is filed after a motion for sum-
mary judgment but before discovery is closed, the standard for
assessing the futility of the amendment turns on whether there
was a sufficient opportunity for discovery. Here, there was.
The student and his mother had engaged in substantial
discovery to develop their case. At the time of their initial
motion for leave, they had taken the depositions of six indi-
viduals. They had requested additional time to disclose expert
opinions regarding the university’s alleged negligence and had
disclosed their expert witness prior to renewing their motion
for leave.
[16,17] When a motion for summary judgment has been
filed and a party seeking leave to amend a pleading has
had sufficient opportunity for discovery, futility is judged by
whether the proposed amendment could withstand a motion
for summary judgment. In determining whether the proposed
amendment was futile, the standard is whether the proposed
amendment is both theoretically viable and solidly grounded
in the record and supported by substantial evidence sufficient
to give rise to a triable issue of fact. 36 Stated differently, the
proposed amendment may be considered futile “when the evi-
dence in support of the proposed amendment creates no triable
issue of fact and the opposing party would be entitled to judg-
ment as a matter of law.” 37
35
Id.36
See Estermann v. Bose, supra note 31.
37
Bailey v. First Nat. Bank of Chadron, 16 Neb. App. 153, 169, 741 N.W.2d
184, 197 (2007).
- 235 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218With the appropriate standard in place, we review the district
court’s determination for an abuse of discretion. Addressing the
renewed motion for leave, the court stated that the facts would
not support a finding of gross negligence and that any amend-
ment would be futile. We agree.
[18-20] The student and his mother wished to amend the
complaint to allege the university’s “negligence, recklessness,
willful and wanton, and/or grossly negligent actions” caused
the student’s injury and damages. Gross negligence is great
or excessive negligence, which indicates the absence of even
slight care in the performance of a duty. 38 Whether gross neg-
ligence exists must be ascertained from the facts and circum-
stances of each particular case and not from any fixed defini-
tion or rule. 39 The issue of gross negligence is susceptible to
resolution in a motion for summary judgment. 40
The allegations in the proposed amended complaint do not
rise to the level of gross negligence. The proposed complaint
would allege, among other things, that the university was
negligent in allowing the student athletes to pull the resistance
band toward their faces and in failing to inform the student
that other student athletes could modify the placement of the
bands during the workout. At best, these allegations would
implicate ordinary negligence. Because the proposed amend-
ments would have been futile, we conclude the district court
did not abuse its discretion in overruling the motions for leave
to file an amended complaint.
VI. CONCLUSION
We conclude that the district court properly entered summary
judgment in the university’s favor, because the release signed
by the student and his mother was valid and enforceable and
38
Palmer v. Lakeside Wellness Ctr., 281 Neb. 780, 798 N.W.2d 845 (2011).
39
Id.40
Id.- 236 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SINU V. CONCORDIA UNIVERSITY
Cite as 313 Neb. 218relieved the university of liability for its ordinary negligence.
And because the proposed amendments to the complaint would
have been futile, the district court did not abuse its discretion
in overruling the student and his mother’s motions for leave to
amend. We affirm the judgment.
Affirmed.
Miller-Lerman, J., not participating.