Wehrer v. Dynamic Life Therapy & Wellness , 302 Neb. 1025 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/19/2019 08:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS
Cite as 302 Neb. 1025
A rlys Wehrer, appellant, v. Dynamic Life Therapy
and Wellness, P.C., appellee.
___ N.W.2d ___
Filed April 25, 2019. No. S-18-648.
1. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material fact or
as to the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In appellate review of a sum-
mary judgment, the court views the evidence in a light most favorable
to the party against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the evidence.
3. Limitations of Actions: Negligence. In determining whether the statute
of limitations for professional negligence applies to a plaintiff’s claim,
the court must determine whether the defendant is a professional and
was acting in a professional capacity in rendering the services upon
which the claim is based.
4. Words and Phrases. In determining whether a particular act or service
is professional in nature, the court must look to the nature of the act or
service itself and the circumstances under which it was performed.
5. Limitations of Actions: Negligence: Words and Phrases. The defini-
tion of “profession” for the purpose of determining the professional
negligence statute of limitations under Neb. Rev. Stat. § 25-222 (Reissue
2016) is (1) a calling requiring specialized knowledge and often long
and intensive preparation including instruction in skills and methods as
well as in the scientific, historical, or scholarly principles underlying
such skills and methods; (2) maintaining by force of organization or
concerted opinion high standards of achievement and conduct; and (3)
committing its members to continued study and to a kind of work which
has for its prime purpose the rendering of a public service.
6. Licenses and Permits. A license indicates a person is a professional,
but that is not the only prerequisite, nor is it dispositive.
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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS
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7. Words and Phrases. A college degree is not necessarily required in
order for a particular occupation to constitute a “profession.”
8. Licenses and Permits: Words and Phrases. Licensure alone is gener-
ally unreliable in determining whether an occupation is a “profession”
under Neb. Rev. Stat. § 25-222 (Reissue 2016), because the educational
requisites for licensure vary widely.
9. Limitations of Actions: Negligence: Words and Phrases. In analyz-
ing whether a particular group or organization meets the definition of a
“profession” for purposes of Neb. Rev. Stat. § 25-222 (Reissue 2016),
each of the following principal elements must be demonstrated. The
occupation is not a “profession” unless: (1) The profession requires
specialized knowledge; (2) the profession requires long and intensive
preparation; (3) preparation must include instruction in skills and meth-
ods of the profession; (4) preparation must include scientific, historical,
or scholarly principles underlying the skills and methods of the profes-
sion; (5) membership in a professional organization is required; (6) a
professional organization or concerted opinion within an organization
regulates and enforces standards for membership; (7) the standards for
membership include high standards of achievement; (8) the standards
for membership include high standards of conduct; (9) its members are
committed to continued study; (10) its members are committed to a spe-
cific kind of work; and (11) the specific kind of work has for its primary
purpose the rendering of a public service.
10. Words and Phrases. A massage therapist is not a “professional” for the
purposes of applying Neb. Rev. Stat. § 25-222 (Reissue 2016).
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Reversed and remanded.
George H. Moyer, of Moyer & Moyer, for appellant.
Karen K. Bailey and L. Paige Hall, of Engles, Ketcham,
Olson & Keith, P.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
A customer of a massage therapy establishment filed suit for
damages incurred when an employee, a licensed massage ther-
apist, allegedly caused the customer to become unconscious
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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS
Cite as 302 Neb. 1025
by improperly compressing a nerve in the customer’s neck.
The massage therapy establishment moved for summary judg-
ment. The district court granted summary judgment on the
ground that the customer’s cause of action was time barred
by the statute of limitations for professional negligence under
Neb. Rev. Stat. § 25-222 (Reissue 2016).
FACTS
On February 17, 2017, Arlys Wehrer filed a negligence
action against Dynamic Life Therapy and Wellness, P.C.
(Dynamic Life). The lawsuit was related to a neck massage
Wehrer received from a licensed masseuse, Nicole Jones, at
Dynamic Life on September 2, 2014.
Dynamic Life is a licensed massage therapy establish-
ment in Columbus, Nebraska, and has been in practice since
2010. Dynamic Life passed an inspection conducted by the
Division of Public Health of the Department of Health and
Human Services in 2011 and was issued a license to engage
in the practice of massage therapy. Jones completed the
required course of study and training, including 1,000 hours
of hands-on training, and graduated from the Omaha School
of Massage Therapy, an approved massage therapy school, in
2000. Later that year, Jones passed the examination required
by the Board of Massage Therapy and became a licensed mas-
sage therapist. She has been a licensed massage therapist since
2001 and has been employed by Dynamic Life since 2014.
At the time of Wehrer’s massage therapy appointment, Jones
had completed the continuing competency education credits
required of each licensed massage therapist who is in active
practice in the State of Nebraska.
During the appointment, Wehrer alleged that she became
unconscious and fell out of the massage chair, hitting her head
and shoulder on a wall, after Jones left to get Wehrer water
15 minutes into the appointment. Wehrer alleged this occurred
because Jones compressed the vagus nerve in Wehrer’s neck,
causing her to become unconscious, fall out of the massage
chair, and sustain injuries.
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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS
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Wehrer filed a lawsuit against Dyanmic Life, alleging that
Wehrer’s injuries were caused by Dynamic Life’s negligence
as Jones’ employer. Wehrer argued that Jones knew or should
have known that compressing the vagus nerve while perform-
ing a neck massage could cause Wehrer to faint, fall, and sus-
tain injuries. Dynamic Life filed an answer, denying Wehrer’s
allegations and asserting affirmative defenses, including that
Wehrer’s claim was time barred by the 2-year statute of limita-
tions set forth in § 25-222.
Dynamic Life filed a motion for summary judgment. At
some point before the summary judgment hearing, the court
permitted Wehrer to file a reply to Dynamic Life’s answer.
Within her reply, Wehrer denied Dynamic Life’s suggestion
that Jones was providing professional services under § 25-222.
Alternatively, Wehrer alleged that § 25-222 was unconstitu-
tional, because it is vague and it improperly delegates legisla-
tive power to the courts by allowing appellate courts to classify
who “professionals” are under the statute.
The district court sustained Dynamic Life’s motion for sum-
mary judgment and entered a judgment dismissing Wehrer’s
complaint. The court found that based on Nebraska’s Massage
Therapy Practice Act and relevant Nebraska Administrative
Code provisions, massage therapy requires specialized knowl-
edge and skill. The court then concluded that a massage thera-
pist was a “professional” under § 25-222. As a consequence,
the court found that there was no dispute of material fact that
Wehrer’s claim was time barred by the application of § 25-222.
Having dismissed the suit as time barred, the district court did
not address Wehrer’s constitutional arguments.
ASSIGNMENTS OF ERROR
Wehrer assigns that the district court erred by (1) finding
that massage therapy is a “profession” and that a massage
therapist could claim the benefit of § 25-222, (2) failing to
consider the constitutionality of § 25-222, and (3) sustaining
Dynamic Life’s motion for summary judgment.
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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS
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STANDARD OF REVIEW
[1,2] Summary judgment is proper only when the plead-
ings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material
fact or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as
a matter of law.1 In appellate review of a summary judgment,
the court views the evidence in a light most favorable to the
party against whom the judgment is granted and gives such
party the benefit of all reasonable inferences deducible from
the evidence.2
ANALYSIS
Wehrer contends that the district court erred in finding that
the statute of limitations for actions in professional negligence
under § 25-222 applied in this matter. Wehrer argues that the
work of a massage therapist does not meet the educational
or high standards of achievement and conduct requirements
of “professional services” under our jurisprudence. As such,
Wehrer contends that the general statute of limitations for neg-
ligence actions under Neb. Rev. Stat. § 25-207 (Reissue 2016)
applies. We agree.
Section 25-222 provides in relevant part:
Any action to recover damages based on alleged pro-
fessional negligence or upon alleged breach of warranty
in rendering or failure to render professional services
shall be commenced within two years next after the
alleged act or omission in rendering or failure to ren-
der professional services providing the basis for such
action[.]
The Legislature has not provided a general statutory defini-
tion of “professional” or specifically stated which occupations
provide professional services.
1
Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999).
2
Id.
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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS
Cite as 302 Neb. 1025
[3,4] We have held that in determining whether the statute
of limitations for professional negligence applies to a plain-
tiff’s claim, the court must determine whether the defendant
is a professional and was acting in a professional capacity
in rendering the services upon which the claim is based.3 In
determining whether a particular act or service is professional
in nature, we must look to the nature of the act or service itself
and the circumstances under which it was performed.4
We have previously determined that a physician,5 an
attorney,6 a physical therapist,7 an accountant,8 an engineer,9
an architect,10 and a land surveyor11 were professionals for the
purposes of the statute of limitations described in § 25-222. We
have held, in contrast, that a real estate broker12 and a licensed
general securities agent13 were not professionals for the pur-
poses of § 25-222. It is an issue of first impression whether a
massage therapist is a professional for the purposes of applying
this statute.
3
See, Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53
(2013); Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004);
Reinke Mfg. Co. v. Hayes, supra note 1.
4
Id.
5
See Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001).
6
See Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002).
7
Churchill v. Columbus Comm. Hosp., supra note 3.
8
See World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d
1 (1996).
9
Gering - Ft. Laramie Irr. Dist. v. Baker, 259 Neb. 840, 612 N.W.2d 897
(2000); Board of Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433
N.W.2d 478 (1988).
10
Board of Regents v. Wilscam Mullins Birge, supra note 9.
11
Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407, 882 N.W.2d 910
(2016).
12
Tylle v. Zoucha, 226 Neb. 476, 412 N.W.2d 438 (1987).
13
Parks v. Merrill, Lynch, supra note 3.
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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS
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[5] The definition of “profession”14 for the purpose of
determining the professional negligence statute of limita-
tions under § 25-222 is (1) a calling requiring specialized
knowledge and often long and intensive preparation includ-
ing instruction in skills and methods as well as in the scien-
tific, historical, or scholarly principles underlying such skills
and methods; (2) maintaining by force of organization or
concerted opinion high standards of achievement and con-
duct; and (3) committing its members to continued study
and to a kind of work which has for its prime purpose the
rendering of a public service.15 The Legislature, having not
attempted to modify this definition for purposes of § 25-222,
has acquiesced in our interpretation and determination of
the definition of “profession” for the purpose of applying
the statute.16
[6] We have emphasized that this definition does not rely
solely on the possession of a license.17 To do so would dis-
tort the definition, as it would include many occupations that
were traditionally not considered to be professions.18 A license
indicates a person is a professional, but that is not the only
­prerequisite, nor is it dispositive.19
[7] The definition of “profession” adopted for purposes
of § 25-222 instead “stresses the long and intensive program
of preparation to practice one’s chosen occupation tradition-
ally associated only with professions.”20 It does not stress
14
See Webster’s Third New International Dictionary of the English Language,
Unabridged 1811 (1993).
15
See, Parks v. Merrill, Lynch, supra note 3; Tylle v. Zoucha, supra note 12.
16
See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
17
Tylle v. Zoucha, supra note 12.
18
Id.
19
Churchill v. Columbus Comm. Hosp., supra note 3; Jorgensen v. State Nat.
Bank & Trust, 255 Neb. 241, 583 N.W.2d 331 (1998).
20
Tylle v. Zoucha, supra note 12, 226 Neb. at 480, 412 N.W.2d at 441.
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the difference between manual and intellectual labor; which,
while a trademark of the traditional professions, would seem
to exclude some occupations commonly considered to be pro-
fessions even though manual or physical.21 Accordingly, a col-
lege degree is not necessarily required in order for a particular
occupation to constitute a “profession.”22 Still, we have placed
great emphasis on college degrees in considering whether a
particular occupation is a profession.23 This emphasis recog-
nizes that other jurisdictions hold that a “profession” requires
at a minimum a college degree in a specific field—though a
college degree does not automatically designate the occupation
as a professional practice.24
Thus, in Georgetowne Ltd. Part. v. Geotechnical Servs.,25
we held that architects and engineers are professionals under
§ 25-222, emphasizing that the engineers were registered and
licensed civil engineers, who had college degrees. We stated
that based on this, “[t]here can be no doubt that [the engi-
neers were] rendering professional services as defined by this
court.”26 In Churchill v. Columbus Comm. Hosp.,27 we likewise
found that physical therapists were professionals under the
statute, because the Physical Therapy Practice Act required
physical therapists to be licensed and, in order to obtain a
21
Id.
22
Churchill v. Columbus Comm. Hosp., supra note 3; Cooper v. Paap, 10
Neb. Ct. App. 243, 634 N.W.2d 266 (2001).
23
See, Jorgensen v. State Nat. Bank & Trust, supra note 19; Georgetowne
Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988).
24
See, e.g., Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 749
N.E.2d 161, 725 N.Y.S.2d 592 (2001); New York & Presbyterian Hosp. v.
Tishman, 180 Misc. 2d 193, 688 N.Y.S.2d 424 (1999); Kuntz v. Muehler,
603 N.W.2d 43 (N.D. 1999); Garden v. Frier, 602 So. 2d 1273 (Fla. 1992);
Pierce v. AALL Ins. Inc., 531 So. 2d 84 (Fla. 1988).
25
Georgetowne Ltd. Part. v. Geotechnical Servs., supra note 23.
26
Id., 230 Neb. at 27, 430 N.W.2d at 38.
27
Churchill v. Columbus Comm. Hosp., supra note 3.
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license, the physical therapists were required to complete an
approved educational program that generally includes some
form of college degree and an examination.28 We found that
these requirements indicate that physical therapists complete
the “‘long and intensive program of preparation’” that is
required of professionals.29 We additionally considered the fact
that physical therapists render a public service and are subject
to both mandatory continuing education requirements and pro-
fessional discipline.30
[8] In contrast, in Tylle v. Zoucha,31 we held that a real
estate agent was not a professional under § 25-222, despite
the fact that he was required to complete approved post­
secondary coursework and pass a licensing examination
before obtaining his license, as well as the fact that the
State Real Estate Commission was authorized to investigate
and discipline license holders for unfair trade practices. We
held that these factors did not transform a licensed occupa-
tion into a licensed profession for purposes of § 25-222.32
Similarly, in holding in Parks v. Merrill, Lynch,33 that a
licensed general securities agent was not a professional under
§ 25-222, we focused on the fact that the requisite train-
ing from employers in providing services for clients did
not require long and intensive training or preparation on
a par with a college degree—or even preparation equiva-
lent to that required for a real estate broker license. We
again observed that licensure alone is generally unreliable in
determining whether an occupation is a “profession” under
28
See, generally, id.
29
Id. at 766, 830 N.W.2d at 58, quoting Tylle v. Zoucha, supra note 12.
30
Churchill v. Columbus Comm. Hosp., supra note 3.
31
Tylle v. Zoucha, supra note 12. See, also, Parks v. Merrill, Lynch, supra
note 3.
32
See Tylle v. Zoucha, supra note 12.
33
Parks v. Merrill, Lynch, supra note 3.
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§ 25-222, because the educational requisites for licensure
vary widely.34
We consider each of the elements set forth in the Tylle defi-
nition of “profession” to be necessary and not merely possible
factors for consideration.35 Therefore, to constitute a “profes-
sion” within the meaning of § 25-222, a particular type of
endeavor must meet all of the principal elements.
[9] Our case law has discussed many specific factors to
be considered in determining whether a particular occupa-
tion constitutes a profession.36 Though the list of factors set
forth in Churchill is not necessarily complete, we conclude
that in analyzing whether a particular group or organiza-
tion meets the definition of a “profession” for purposes of
§ 25-222, each of the following principal elements must be
demonstrated. The occupation is not a “profession” unless:
(1) The profession requires specialized knowledge; (2) the
profession requires long and intensive preparation; (3) prepa-
ration must include instruction in skills and methods of the
profession; (4) preparation must include scientific, historical,
or scholarly principles underlying the skills and methods of
the profession; (5) membership in a professional organization
is required; (6) a professional organization or concerted opin-
ion within an organization regulates and enforces standards
for membership; (7) the standards for membership include
high standards of achievement; (8) the standards for member-
ship include high standards of conduct; (9) its members are
committed to continued study; (10) its members are com-
mitted to a specific kind of work; and (11) the specific kind
34
Id.
35
See Tylle v. Zoucha, supra note 12.
36
See, e.g., Churchill v. Columbus Comm. Hosp., supra note 3 (listing
factors to consider in “profession” determination, including college
degree, licensing, protection of citizens, public service, board to enforce
standards, written examination, verified experience, continuing education
requirements, and professional disciplinary authority).
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of work has for its primary purpose the rendering of a pub-
lic service.
When analyzing whether a particular group or organization
meets the definition of a “profession” for purposes of § 25-222,
one should be able to affirmatively answer each element set
forth above. If this cannot be accomplished, then, one should
anticipate that the group or organization does not fall within
the scope of § 25-222.
Neb. Rev. Stat. § 38-1709 (Reissue 2016) of the Massage
Therapy Practice Act requires that any person engaging in
the practice of massage therapy must have a license. Neb.
Rev. Stat. § 38-1710 (Reissue 2016) requires that in order for
a massage therapist to become licensed to practice, “[e]very
applicant for an initial license to practice massage therapy
shall (1) present satisfactory evidence that he or she has
attained the age of nineteen years, (2) present proof of gradua-
tion from an approved massage therapy school, and (3) pass an
examination prescribed by the board.” To receive a credential
to practice massage therapy, an individual must have “com-
pleted a course of study and training in massage therapy not
less than 1,000 hours, distributed over a term of not less than
9 months.”37
Additionally, pursuant to Neb. Rev. Stat. § 84-906.05
(Reissue 2014), we take judicial notice of the regulations of
the Nebraska Administrative Code relevant to the regulation
of massage therapy, as the district court did.38 Agency regula-
tions, properly adopted and filed with the Secretary of State
of Nebraska, have the effect of statutory law,39 and the par-
ties do not dispute that the contents of the current regulations
37
172 Neb. Admin. Code, ch. 81, § 003.01(3) (2010).
38
See, Merie B. on behalf of Brayden O. v. State, 290 Neb. 919, 863 N.W.2d
171 (2015); JCB Enters. v. Nebraska Liq. Cont. Comm., 275 Neb. 797, 749
N.W.2d 873 (2008).
39
City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839
(2002).
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denoting the massage therapist licensure requirements are
controlling. The Nebraska Administrative Code requires that
“[e]ach person holding an active credential within the state
must, on or before the date of expiration of the credential,
comply with the continuing competency requirements for his/
her profession.”40 Specifically, a licensed massage therapist
in Nebraska must complete 24 hours of approved continu-
ing competency hours/credits during the preceding 24-month
period on or before November 1 of each odd-numbered year.41
The licensure and discipline of massage therapists in Nebraska
is overseen broadly by the Division of Public Health of the
Department of Health and Human Services.42
[10] These licensing requirements to become a massage
therapist do not require long and intensive training or prepa-
ration, including instruction in skills and methods as well as
in the scientific, historical, or scholarly principles underlying
such skills and methods, which would be comparable to that
of a college degree. Nor does the record show the standards
for membership in the occupation of massage therapy include
high standards of achievement. Based on the record before
us, Dynamic Life has failed to show that the requirements to
become a licensed massage therapist demand high standards of
training, preparation, and achievement sufficient to render mas-
sage therapy a “profession” under the statute.43 We therefore
hold that a massage therapist is not a “professional” for the
purposes of applying § 25-222.
The district court erred in concluding that a massage thera-
pist is a professional under § 25-222 and in granting summary
judgment in favor of Dynamic Life on that ground. Having
found that massage therapists are not “professionals” under
40
Neb. Admin. Code, supra note 37, § 006.
41
Id., § 006.01.
42
See, id., §§ 002(14) and 008; Neb. Rev. Stat. § 38-1715 (Reissue 2016).
43
See Parks v. Merrill, Lynch, supra note 3.
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§ 25-222, we need not address Wehrer’s alternative assign-
ment of error and argument that the district court erred in fail-
ing to consider whether § 25-222 is unconstitutional.
CONCLUSION
For the foregoing reasons, we find that the district court
erred in granting summary judgment in favor of Dynamic Life
and reverse the decision and remand the cause to the district
court accordingly.
R eversed and remanded.