Richardson v. Omni Behavioral Health ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
RICHARDSON V. OMNI BEHAVIORAL HEALTH
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
ANGELA RICHARDSON, GUARDIAN AND AS NEXT FRIEND, ON BEHALF
OF WILLIAM E. SEE, JR., A PROTECTED PERSON, APPELLANT,
V.
OMNI BEHAVIORAL HEALTH, APPELLEE.
Filed April 4, 2023. No. A-22-428.
Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for appellant.
Dan H. Ketcham and Samuel A. Huckle, of Engles, Ketcham, Olson & Keith, P.C., for
appellee.
PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Angela Richardson, guardian and as next friend, on behalf of William E. See, Jr., a
protected person, appeals the Douglas County District Court’s order granting summary judgment
in favor of OMNI Behavioral Health regarding Richardson’s claim of negligent entrustment. For
the reasons set forth herein, we affirm.
STATEMENT OF FACTS
PRIOR PROCEEDINGS
In our previous opinion regarding this case found at Richardson v. OMNI Behavioral
Health, No. A-20-482, 2021 WL 2325282 (Neb. App. June 8, 2021) (selected for posting to court
website) (OMNI I), we set forth an extensive statement of facts which we quote here:
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See is a developmentally disabled individual and ward of the State. In order to
provide individuals like See with specialized living services, the Department of Health and
Human Services (DHHS) entered into a general service contract with OMNI. The contract
provided that OMNI was to provide “Developmental Disability Services” in accordance
with the Developmental Disabilities Services Act, the Medical Assistance Act, Title 404
NAC, 175 NAC if operating a Center for the Developmentally Disabled, 471 NAC
Chapters 1 through 3, and Title XIX of the Social Security Act. The general service contract
required OMNI to: “Purchase and maintain adequate insurance coverage to cover all
[OMNI]’s liabilities. [OMNI] shall file with DHHS, each time [OMNI] returns a signed
contract, a current certificate of coverage showing the following kinds of coverage . . . . b.
Motor vehicle liability insurance in accordance with the minimums set by state law, and
agrees that the State/DHHS will not provide any insurance coverage for vehicles operated
by [OMNI].”
The contract contained both an integration clause explaining the written contract
represented the entire agreement between DHHS and OMNI and an assignment clause
noting OMNI shall not assign or transfer any rights or duties under this contract without
the written consent of DHHS. The contract also contained a provision allowing OMNI to
subcontract “a portion of this contract as allowed by DHHS regulations” and that “OMNI
shall ensure that all subcontractors comply with the requirements of this contract and
applicable federal, state, county and municipal laws, ordinances, rules, and regulations.”
OMNI subsequently entered into a subcontract agreement with James and Jennifer
Wall to provide Extended Family Home (EFH) services for See. Under the subcontract,
James and Jennifer agreed to provide See with habilitation services, including
transportation services, in a family-like setting. James’s sister, Martina Wall-Crawford,
lived with James and Jennifer and provided some of those services at James and Jennifer’s
request. (We will collectively refer to the services provided by James, Jennifer, and
Wall-Crawford as the “EFH Providers.”) Under the subcontract, OMNI’s responsibilities
were to clarify any terminology, rule, or concept regarding habilitation services; to timely
pay the EFH providers; and to rely upon the EFH providers’ training, knowledge, and
expertise and to utilize their input and feedback in treatment regarding the functioning of
the individuals in their home. The EFH providers’ responsibilities were to seek clarification
for any terminology, rule, or concept regarding habilitation services; consent to background
checks for all individuals 12 years old or older living in the home; maintain cleanliness;
notify OMNI of a significant change in the home; secure See with functional seatbelts when
transporting him; obtain training approved by OMNI; regularly communicate with OMNI
regarding See; be available for family team meetings; complete written documentation
relevant to the See’s care; meet all DHHS requirements; and comply with applicable state
and federal statutes and regulations as well as with OMNI policies and procedures. The
subcontract specifically provided that: “EFH provider insists, and OMNI accepts that any
and all duties performed by the parties hereunder are performed as and by independent
contractors, and that no performance of any duty or act pursuant to this Agreement shall
give rise to an employer-employee relationship between the parties. Each party is an
independent contractor and as such will not have any authority to bind or commit the other.
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No part of this [sub]contract shall be construed to create a joint venture, partnership,
fiduciary, or agency relationship between the parties for any purpose.” Finally, the
subcontract provided that the EFH provider will “comply with applicable state and federal
statutes and regulations and with OMNI Policy and Procedure.”
On January 31, 2013, Wall-Crawford picked up See from school and was returning
home with him when they were in a one-car accident in Weeping Water, Nebraska. The
accident resulted in injuries to See, including the removal of his spleen. At the time of the
accident, Wall-Crawford resided at the home of James and Jennifer and had driven See on
other occasions prior to the accident.
On January 27, 2017, See’s guardian, Angela Richardson, filed a complaint on
behalf of See alleging he sustained injuries due to Wall-Crawford’s negligent operation of
the vehicle and that OMNI was liable for See’s damages because Wall-Crawford was
OMNI’s agent and OMNI negligently entrusted Wall-Crawford with the transportation of
See. Richardson also alleged See was the intended third-party beneficiary of OMNI’s
contract with DHHS because the contract contemplated services provided for disabled
individuals such as See and that OMNI subcontracted with James to provide these services
including transportation.
In January 2019, OMNI filed a motion for summary judgment but did not include
a statement of undisputed facts. At the hearing on the motion, OMNI offered the
aforementioned subcontract between OMNI and James and Jennifer; along with deposition
excerpts from Morgan Kelly, OMNI’s general counsel and treasurer; James; and
Wall-Crawford. In opposition to OMNI’s motion, Richardson offered the contract between
DHHS and OMNI and the full depositions of Kelly, James, and Wall-Crawford.
In his deposition, James stated he received training at OMNI’s main office for
de-escalation and restraint techniques, CPR, and OMNI’s company policies and
procedures. James explained OMNI knew Wall-Crawford resided with him and helped to
provide EFH care services to See. James stated OMNI required Wall-Crawford to
participate in OMNI’s training for restraint techniques, CPR, and OMNI’s company
policies and procedures. OMNI informed James that he was to obtain automobile insurance
and homeowners insurance but did not discuss the minimum limits required. James
explained that during the year he worked with OMNI, OMNI required him to provide
OMNI with a copy of his automobile insurance card for all vehicles listed but never
requested the declaration page or a recitation of minimum policy limits he had obtained.
James testified that OMNI never discussed with him OMNI’s responsibilities under its
contract with DHHS. James explained Wall-Crawford needed his consent before driving
one of his vehicles. James acknowledged OMNI gave him discretion about the means and
methods for transporting See.
Wall-Crawford stated in her deposition that OMNI required her to participate in
training pertaining to crisis intervention, CPR, handling prescription medication, and
“Therap,” a computer system used to input daily information about the interactions EFH
providers had with the disabled individuals in their care. Wall-Crawford acknowledged
that no one from OMNI spoke with her about OMNI’s rules for transportation.
Wall-Crawford also acknowledged OMNI did not ask for proof of insurance or if she was
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going to be driving any of the disabled individuals. Wall-Crawford explained that once she
received training from OMNI, she believed she could transport the disabled individuals.
Wall-Crawford stated she had a Nebraska driver’s license at the time of the accident but
could not recall either being asked to provide, or providing, a copy of her driver’s license
to OMNI. Wall-Crawford testified she initially assisted See with goal training and entering
information into “Therap.” Approximately six months later, she began providing
transportation services. After the accident, Wall-Crawford continued to assist See with
services at home; however, she testified she would no longer transport See in the snow.
Wall-Crawford acknowledged that if James asked for her assistance, she would
then help him. When describing this arrangement, Wall-Crawford said it was a family
business where she was not paid but she did not have to pay for rent or food. Wall-Crawford
recalled that after the accident, she wrote a statement for OMNI detailing the events of the
accident.
In its order ruling on the motion for summary judgment, the court noted the chief
factor determining whether the EFH providers and Wall-Crawford were employees or
independent contractors was that of control. The court determined the EFH providers
contracted with OMNI to provide See with a safe and supportive physical and emotional
environment, but OMNI did not exert control over the manner by which the Walls were to
achieve these outcomes. The court found the facts established that the EFH providers
should be considered as independent contractors, not agents. The court then identified the
applicable law and noted an employer is not liable for acts or omissions of its independent
contractor barring two exceptions: (1) the employer retains control over the contractor’s
work and (2) the employer has a nondelegable duty to protect others from harm caused by
the contractor. In determining whether OMNI was liable for the negligence of the Walls,
the court found neither exception was met explaining that (1) there was no evidence OMNI
supervised the transportation of See or that it had knowledge of some danger related to
See’s transportation and (2) OMNI requesting the Walls to drive See for services was not
a delegation of an inherently dangerous activity; thus OMNI could not be found vicariously
liable for See’s injuries. The court continued its findings by stating there was no evidence
or question of material fact establishing that the EFH providers maintained inadequate
automobile insurance coverage or that OMNI negligently entrusted the vehicle in the
accident to Wall-Crawford. The court ultimately granted OMNI’s motion for summary
judgment.
On appeal, this court affirmed the district court’s order dismissing Richardson’s vicarious
liability claims against OMNI, but reversed the portion of the district court’s order granting
summary judgment to OMNI governing Richardson’s claim for negligent entrustment and
remanded the cause for further proceedings.
CURRENT PROCEEDINGS
Following the remand on the negligent entrustment cause of action, OMNI filed a motion
for summary judgment contending that
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the pleadings, discovery, and evidence demonstrate that there are no genuine issues of
material fact and that [Richardson’s] remanded cause of action of negligent entrustment
fails as a matter of law under Nebraska law under any cognizant formulation because: 1)
The subject vehicle was not under the control of OMNI; 2) The transportation of [See] was
not under the control of OMNI; and/or 3) OMNI did not have actual or constructive
knowledge of any fact that would infer that . . . Wall-Crawford was unable to operate the
subject vehicle properly.
A hearing thereon was held in February 2022. Although no testimony was adduced at the hearing,
the parties introduced numerous exhibits into evidence including the depositions of Kelly, James
Wall, Wall-Crawford, James Wall, Sr., and Theodore Boecker; requests for admissions and
responses; OMNI’s independent contractors’ agreement with Walls; the State of Nebraska
Investigator’s motor vehicle accident report; and insurance group declarations.
In May 2022, the district court granted summary judgment on Richardson’s remaining
claim of negligent entrustment and dismissed Richardson’s remaining cause of action with
prejudice. Specifically, the court found that no evidence had been adduced by which the trial court
could find that the use of subject vehicle was under OMNI’s control, that the transportation of See
was under OMNI’s control, or that OMNI had actual or constructive knowledge of any facts that
would support a finding that the driver, Wall-Crawford, was incompetent, inexperienced or
reckless in the manner in which she drove the vehicle. Richardson has timely appealed to this
court.
ASSIGNMENT OF ERROR
Richardson’s assignments of error can be consolidated into the following issue: that the
district court erred in granting OMNI’s motion for summary judgment based upon the court’s
determination that there were no genuine issues of material fact.
STANDARD OF REVIEW
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. Carrizales v. Creighton St. Joseph, 312 Neb. 296, 979 N.W.2d 81 (2022).
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 reasonable
inferences in that party’s favor. Id.ANALYSIS
Richardson contends that the district court erred in granting OMNI’s motion for summary
judgment on the theory of OMNI’s negligent entrustment of See’s transportation to Wall-Crawford
based upon the court’s determination that there were no genuine issues of material fact.
After determining in OMNI I that the district court did not err in granting summary
judgment in favor of OMNI on Richardson’s vicarious liability and non-delegable duty claims, we
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reversed and remanded for further proceedings solely on the issue of the Richardson’s negligent
entrustment claim. In her complaint, Richardson alleged that claim as follows:
[OMNI] is . . . liable for [the] negligent entrustment of [See’s] care, in placing him in the
position to be transported by an insufficiently trained and unqualified individual, to wit,
. . . Wall-Crawford. But for allowing an insufficiently trained and unqualified individual to
transport [See] on January 31, 2013, [See] would not have been involved in a motor vehicle
accident and suffered the damages, including pain, suffering and personal injuries as
hereinabove set forth.
In DeWester v. Watkins, 275 Neb. 173, 176, 745 N.W.2d 330, 334 (2008), the Nebraska
Supreme Court stated:
The tort of negligent entrustment is explained by the Restatement (Second) of Torts
§ 308, which states that “[i]t is negligence to permit a third person to use a thing or to
engage in an activity which is under the control of the actor, if the actor knows or should
know that such person intends or is likely to use the thing or to conduct himself in the
activity in such a manner as to create an unreasonable risk of harm to others.”
Applied to this case, as we noted in OMNI I, DHHS entered into a general service contract
with OMNI to provide Developmental Disability Services for individuals like See. Those services
included habilitation services, which included transportation services, in a family-like setting. That
contract specifically contemplated the right to subcontract those services and OMNI did so
subcontract with James and Jennifer Wall. In the course of providing transportation services under
the subcontract, Wall-Crawford was involved in an accident which resulted in See sustaining
injuries. Richardson alleges that OMNI was negligent by allowing Wall-Crawford to transport See
because she was “an insufficiently trained and unqualified individual to transport [See] on January
31, 2013.”
Applying the negligent entrustment doctrine here, Richardson was required to elicit facts
which would support her claim that OMNI was negligent to permit a third person to engage in an
activity under OMNI’s control if OMNI knew or should have known the third person intends or is
likely to conduct himself or herself in the activity in such a manner as to create an unreasonable
risk of harm to others. In doing so, Richardson attempted to assert and argue that OMNI was
negligent in entrusting transportation services to Wall-Crawford.
But Richardson’s claim is inconsistent with the unrefuted evidence in this case. OMNI
never entrusted transportation services to Wall-Crawford. OMNI entrusted those services by
subcontract to James and Jennifer Wall to serve as independent contractors for those services. It
was the Walls that then entrusted transportation services to Wall-Crawford. In that regard, this
case is similar to the Nebraska Supreme Court’s holding in Vilas v. Steavenson, 242 Neb. 801, 496
N.W.2d 543 (1993), overruled on other grounds, DeWester v. Watkins, 275 Neb. 173, 745 N.W.2d
330 (2008) (holding that third party’s ability to exercise control over vehicle rather than ownership,
was prerequisite to liability based on claim of negligent entrustment). In Vilas, the court considered
the question of whether the owner of a vehicle who permitted his son to use his car could be held
liable for an accident occasioned while the vehicle was being operated by a third person to whom
the son entrusted the vehicle, but without the father’s knowledge or consent. The court rejected
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the doctrine of negligent entrustment under such circumstances where the evidence did not indicate
that the father knowingly entrusted the vehicle to the third person.
Similarly, OMNI entrusted transportation services to James and Jennifer Wall. It was the
Walls that entrusted transportation services of See to Wall-Crawford. Under these circumstances,
OMNI could only be found liable if the Walls’ further entrustment to Wall-Crawford was within
OMNI’s knowledge and consent, and if OMNI knew or should have known that Wall-Crawford
intended, or was likely to, conduct the transportation services in such a manner as to create an
unreasonable risk of harm to See.
There is some evidence in the record that, at the time of OMNI’s subcontract with the
Walls, OMNI was aware of Wall-Crawford’s role with the Walls and that Wall-Crawford would
be providing at least some of the habilitative services under the subcontract. Assuming without
deciding that provides evidence that the Walls would further entrust transportation services to
Wall-Crawford, Richardson was required to provide some evidence that Wall-Crawford was likely
to conduct herself in the activity in such a manner as to create an unreasonable risk of harm to See.
Having performed a thorough review of the record here, we agree with the district court
that the record was completely devoid of any evidence that Wall-Crawford was likely to conduct
herself, in providing transportation services, in such a manner as to create an unreasonable risk of
harm to See. In short, the record indicates that, at the time OMNI contracted with the Walls,
Wall-Crawford had a valid driver’s license with an appropriate class code with no negative
expressions or records that could otherwise be construed to negatively reflect or call into question
her competence or ability to operate a motor vehicle.
Contrary to Richardson’s complaint, when confronted with OMNI’s motion for summary
judgment, Richardson provided no evidence that, at the time OMNI entrusted habilitative services
to the Walls, that Wall-Crawford was an insufficiently trained and unqualified person to transport
See. As such, because the pleadings and admitted evidence shows there was no genuine issues as
to any material fact or the ultimate issues that may be drawn from the facts, we find OMNI was
entitled to summary judgment as a matter of law.
AFFIRMED.
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