Bell v. Grow With Me Childcare & Preschool

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/09/2018 08:14 AM CST
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136Christopher Bell, as Special A dministrator for the Estate
of Cash Bell, et al., appellants and cross-appellees,
v. Grow With M e Childcare & Preschool LLC,
a domestic limited liability company organized
under the laws of the State of Nebraska,
et al., appellees and cross-appellants.
___ N.W.2d ___
Filed March 2, 2018. No. S-16-678.
1. Directed Verdict: Evidence. A directed verdict is proper at the close of
all the evidence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue should be
decided as a matter of law.
2. 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.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
4. Negligence: Damages: Proximate Cause. In order to prevail in a neg-
ligence action, a plaintiff must establish the defendant’s duty to protect
the plaintiff from injury, a failure to discharge that duty, and damages
proximately caused by the failure to discharge that duty.
5. Negligence. The threshold issue in any negligence action is whether the
defendant owes a legal duty to the plaintiff.
6. Negligence: Liability. Under the duty framework of the Restatement
(Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010),
the ordinary duty of reasonable care is expressly conditioned on the
actor’s having engaged in conduct that creates a risk of physical harm to
another. In the absence of such conduct, an actor ordinarily has no duty
of care to another.
7. ____: ____. The Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7 (2010) states the general principle that an actor
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136has a duty of reasonable care when the actor’s conduct creates a risk of
physical harm to others. The Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 37 (2012) states a complementary prin-
ciple: There is no duty of care when another is at risk for reasons other
than the conduct of the actor, even though the actor may be in a position
to help.
8. Torts: Negligence. The common law of torts has long recognized a fun-
damental distinction between affirmatively creating a risk of harm and
merely failing to prevent it.
9. Negligence. There is no distinction more deeply rooted in the com-
mon law and more fundamental than that between misfeasance and
nonfeasance, between active misconduct working positive injury to
others and passive inaction, a failure to take positive steps to benefit
others, or to protect them from harm not created by any wrongful act of
the defendant.
10. ____. One way to determine whether an actor’s conduct created a risk of
harm is to explore, hypothetically, whether the same risk of harm would
have existed even if the actor had not engaged in the conduct.
11. 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.
12. Negligence. The Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7 (2010) does not recognize a universal duty to exer-
cise reasonable care to all others in all circumstances. Rather, it imposes
a general duty of reasonable care only on an actor whose conduct has
created a risk of physical harm to another, and it recognizes that absent
such conduct, an actor ordinarily has no duty of care to another.
13. ____. Under the risk architecture of the Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 7 (2010), the first step is
to determine whether the actor’s affirmative conduct created a risk of
physical harm such that the general duty to exercise reasonable care
under § 7 is applicable. If no such affirmative conduct exists, then the
next step is to determine whether any special relationship exists that
would impose a recognized affirmative duty on the actor with regard to
the risks arising within the scope of that relationship.
14. ____. The failure to rescue or protect another from harm is not conduct
creating a risk of harm under the Restatement (Third) of Torts: Liability
for Physical and Emotional Harm § 7 (2010), and does not give rise to a
duty of care under that section.
15. ____. Under the duty analysis of the Restatement (Third) of Torts:
Liability for Physical and Emotional Harm (2010), the conduct creating
the risk must be some affirmative act, even though the claimed breach
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136can be a failure to act. When the only role of the actor is failing to inter-
vene to protect others from risks created by third persons, the actor’s
nonfeasance cannot be said to have created the risk.
16. ____. Generally speaking, the law does not recognize a duty of care
when others are at risk of physical harm for reasons other than the con-
duct of the actor, even if the actor may be in a position to help.
17. ____. Ordinarily, the failure to act will not be the sort of affirmative
conduct that gives rise to a duty under the Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 7 (2010).
18. ____. Even when an actor’s conduct does not create a risk of physical
harm, the actor may still owe an affirmative duty of care based on a
special relationship.
19. ____. Under the Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 41 (2012), an actor in a special relationship with
another owes a duty of reasonable care to third parties with regard to
risks posed by the other that arise within the scope of the relationship.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
Mark C. Laughlin, David C. Mullin, and Jacqueline M.
DeLuca, of Fraser Stryker, P.C., L.L.O., for appellants.
Mark J. Daly, Andrew T. Schlosser, and MaryBeth Frankman,
of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for
appellees La Petite Academy, Inc., and Lisa Hampson.
Richard J. Gilloon, Bonnie M. Boryca, and MaKenna
J. Stoakes, of Erickson & Sederstrom, P.C., for appellees
Grow With Me Childcare & Preschool LLC and Jennifer
Schmaderer.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
This is a tort action brought to recover damages result-
ing from the tragic death of an infant who was abused by his
nanny. The parents and special administrator for the infant’s
estate sued the nanny for battery, and also sued two childcare
centers where the nanny had worked previously, alleging the
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136childcare centers were negligent because they knew or should
have known the nanny had been abusive to other children
while in their employ but failed to report it to authorities. At
the close of the evidence, the district court directed a verdict
in favor of the childcare centers and dismissed them from the
case. The claim against the nanny was submitted to the jury,
which returned a verdict in excess of $5 million. The parents
and special administrator appeal the dismissal of the childcare
centers, and the childcare centers cross-appeal.
This case requires us to determine, as a threshold matter,
whether the childcare centers owed a legal duty to protect the
infant from the criminal acts of a former employee. Because
we find no such duty on the facts of this case, we affirm
the district court’s dismissal of the claims against the child-
care centers.
I. FACTS
Christopher Bell and Ashley Bell are the parents of Cash
Bell, born in October 2012. Christopher and Ashley used
Care.com, an online marketplace for finding caregivers, to hire
a nanny to provide in-home care for Cash. They ultimately
hired Sarah Cullen. They selected Cullen over approximately
30 other matches proposed by Care.com, in part because
Cullen had more experience working in childcare centers.
Before selecting Cullen, Christopher and Ashley conducted a
standard background check using Care.com. The background
check revealed no concerns.
Cullen began working for Christopher and Ashley in January
2013. On February 28, Cullen inflicted fatal injuries on Cash,
and he died from his injuries several days later. Cullen sub-
sequently was convicted of intentional child abuse resulting
in death and was sentenced to imprisonment for a term of 70
years to life.1 This court affirmed her conviction and sentence
on direct appeal.2
1
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
2
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 1361. Bells Sue for
Wrongful Death
In May 2014, Christopher, acting as the special administra-
tor for the estate of Cash, filed this wrongful death action in
the Douglas County District Court on behalf of the next of kin.
Joined with the wrongful death action was a survival action
seeking to recover Cash’s damages, as well as Christopher and
Ashley’s claim for predeath medical expenses. We refer collec-
tively to these parties as “the Bells.”
(a) Claims Against Cullen
The Bells sued Cullen, alleging a claim of battery resulting
in death. Cullen was served but did not answer, and the district
court entered default judgment against Cullen on the issue of
liability for Cash’s death. The question of damages was tried
to the jury, which returned a verdict against Cullen totaling
$5,125,000. The Bells do not assign error to this verdict, and
Cullen is not participating in this appeal.
Cullen testified at trial by deposition. She denied abus-
ing any children while working for the childcare centers, but
declined to answer any questions about Cash. Cullen testified,
over the childcare centers’ objection, that if she had been
accused of, investigated for, or charged with child abuse, she
would have stopped working as a childcare provider before
being hired by Christopher and Ashley. Cullen also testi-
fied, over objection, that if she had been listed on the child
abuse central registry,3 she would not have placed her profile
on Care.com.
(b) Claim Against Care.com
The Bells sued Care.com for negligent misrepresenta-
tions regarding Cullen’s background. Prior to trial, Care.com
was dismissed on summary judgment. No party has assigned
error to that ruling, and Care.com is not participating in
this appeal.
3
See Neb. Rev. Stat. §§ 28-718 and 28-720 (Cum. Supp. 2012).
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136(c) Claims Against
Childcare Centers
The Bells alleged negligence claims against La Petite
Academy, Inc., and its director, Lisa Hampson (collectively
La Petite), and Grow With Me Childcare & Preschool LLC and
its director, Jennifer Schmaderer (collectively Grow With Me).
The evidence offered at trial against La Petite and Grow With
Me is summarized below.
The Bells alleged the childcare centers were negligent
because they knew or should have known that Cullen was
abusing children while in their employ and failed to report
that abuse to authorities. The Bells’ general theory of liabil-
ity was that the childcare centers had a common-law duty of
reasonable care and breached that duty by failing to report
Cullen’s abusive behavior. The alleged breach was premised
in part on Neb. Rev. Stat. § 28-711(1) (Reissue 2016),
which provides:
When any physician, any medical institution, any nurse,
any school employee, any social worker, . . . or any
other person has reasonable cause to believe that a child
has been subjected to child abuse or neglect or observes
such child being subjected to conditions or circum-
stances which reasonably would result in child abuse or
neglect, he or she shall report such incident or cause a
report of child abuse or neglect to be made to the proper
law enforcement agency or to the [Department of Health
and Human Services] on the toll-free number established
by subsection (2) of this section.
In Nebraska, the willful failure to report child abuse or neglect
is a Class III misdemeanor.4
Nebraska maintains a central registry of child protec-
tion ­cases.5 This registry contains “records of all reports of
child abuse or neglect opened for investigation” that are
4
See Neb. Rev. Stat. § 28-717 (Reissue 2016).
5
See §§ 28-718 and 28-720.
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136ultimately classified as either “court substantiated or agency
substantiated.”6 “Court substantiated” means a court of com-
petent jurisdiction has entered a judgment of guilty against the
subject of the report or there has been an adjudication of abuse
or neglect in juvenile court.7 “Agency substantiated” means
the Department of Health and Human Services investigated
and determined the report “was supported by a preponderance
of the evidence.”8 Nebraska administrative regulations provide
that an individual listed as a perpetrator on the registry may
not be on the premises of a childcare center during the hours
of operation.9 Administrative regulations also permanently bar
an individual from working in a childcare center if he or she
has been convicted of an unlawful act that endangers the health
or safety of another individual, including child abuse, child
neglect, and assault.10
(i) Evidence Against La Petite
La Petite is a national company that operates a childcare
center in Omaha, Nebraska. The Bells had no relationship
with La Petite, but Cullen was employed at La Petite from
December 2006 to December 2007.
At trial, the Bells presented evidence that while Cullen was
employed by La Petite, a coworker saw Cullen yell at, shove,
and drop toddlers in her care. Cullen was also seen forcefully
pulling a child down a playground slide, causing the child’s
head to hit the ground. A coworker reported these events to
La Petite’s director, who investigated and concluded they did
not amount to reportable child abuse.11 Neither the director,
the coworker, nor anyone else at La Petite reported Cullen’s
6
§ 28-718.
7
§ 28-720(1).
8
§ 28-720(3).
9
391 Neb. Admin. Code, ch. 3, § 006.03B (operative May 20, 2013).
10
Id., § 006.03A1.
11
See § 28-711.
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136behavior to the authorities. Cullen was fired from La Petite in
December 2007.
(ii) Evidence Against
Grow With Me
Grow With Me is also an Omaha childcare center. The
Bells had no relationship with Grow With Me, but Cullen was
employed there from March to September 2012.
At trial, the Bells presented evidence that while Cullen was
employed by Grow With Me, a coworker saw her verbally
and physically abuse children. Cullen was seen dragging chil-
dren, yelling at children, and dropping children. On one occa-
sion, a coworker saw Cullen “shove” shoes and pants into a
child’s mouth during a diaper change. On another occasion, a
coworker saw Cullen “fling” a child across the room, causing
the child to hit her head on a table. These events were reported
to the Grow With Me director, who investigated and concluded
they did not amount to reportable child abuse.12 Neither the
director, Cullen’s coworkers, nor anyone else at Grow With Me
reported Cullen’s behavior to the authorities. Cullen was fired
from Grow With Me in September 2012.
2. Cullen Is Placed on
Central R egistry
At trial, the Bells presented evidence that after Cash’s
death, Cullen was investigated by the Department of Health
and Human Services and the Omaha Police Department. As
part of that investigation, Cullen’s former coworkers at Grow
With Me were interviewed. Based on the former coworkers’
reports of Cullen’s actions while employed at Grow with Me,
the Department of Health and Human Services concluded the
allegations of abuse were “[a]gency substantiated” and placed
Cullen on the central child abuse registry.13 An Omaha police
officer testified at trial, over the childcare centers’ objection,
12
See id.13
See § 28-720(3).
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136that she would have arrested Cullen for child abuse based on
the reports of what had occurred at Grow With Me.
The Bells claim that if Cullen’s abusive behavior had been
timely reported by the childcare centers, then authorities would
have investigated the reports sooner, and either (1) the investi-
gation would have prompted Cullen to voluntarily stop work-
ing in the childcare field before she applied for the position
with Christopher and Ashley or (2) the investigation would
have resulted in Cullen’s name being placed on the central
registry sooner, because the abuse would have been agency
substantiated or, alternatively, because Cullen would have been
charged and convicted of child abuse. The Bells contend that
under any of these causal chains, but for the childcare center’s
negligence, Christopher and Ashley would not have hired
Cullen and she would not have been in a position to inflict
fatal injuries on Cash.
3. Childcare Centers Seek
Dismissal/Directed Verdict
Before trial, the childcare centers filed motions to dismiss
claiming they had no legal duty to protect Cash from the
criminal acts of Cullen. The trial court denied these motions,
reasoning the childcare centers owed a duty to Cash because
their “alleged conduct of not reporting suspected child abuse
created a risk of physical harm” to Cash. In making this legal
determination, the trial court appears to have relied on A.W. v.
Lancaster Cty. Sch. Dist. 000114 and § 7 of the Restatement
(Third) of Torts,15 both of which we discuss below.
At the close of the Bells’ case in chief, the childcare centers
moved for a directed verdict on several grounds. First, the
childcare centers argued they owed no legal duty to protect
Cash from Cullen’s criminal acts. Next, the childcare centers
14
A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907(2010).
15
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
(2010).
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136argued that if they owed a duty, it was not breached, because
Cullen’s actions were not reasonably foreseeable. And finally,
the childcare centers argued that even assuming they were neg-
ligent in not reporting Cullen’s behavior while in their employ,
no reasonable fact finder could conclude that the fatal injuries
inflicted on Cash were proximately caused by the childcare
centers’ negligence.
The district court sustained the motion for directed verdict
and dismissed the Bells’ amended complaint against the child-
care centers. In explaining its reasoning, the district court com-
mented that if the childcare centers had a duty it was “slim”
but the court’s primary reason for directing a verdict was prox-
imate cause. The court reasoned that all of the Bells’ causal
chains relied on facts that were too tenuous and speculative
to be accepted by any reasonable jury, and the court found no
reasonable jury could conclude the childcare centers’ conduct
was a proximate cause of Cash’s death.
After the jury returned its verdict against Cullen, the Bells
filed this timely appeal, and the childcare centers cross-
appealed. We granted the parties’ joint motion to bypass, and
moved this appeal to our docket.
II. ASSIGNMENTS OF ERROR
The Bells assign, restated and consolidated, that the district
court erred in (1) granting the childcare centers’ motions for
directed verdict and (2) excluding certain evidence at trial.
On cross-appeal, Grow With Me assigns, restated and con-
solidated, that the district court erred in (1) finding Grow with
Me owed a legal duty to either Cash or the Bells and (2) find-
ing it breached any duty. La Petite assigns, restated and con-
solidated, that the district court erred in (1) finding La Petite
owed a legal duty to either Cash or the Bells and (2) admitting
certain evidence.
III. STANDARD OF REVIEW
[1] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.16
[2,3] The question whether a legal duty exists for action-
able negligence is a question of law dependent on the facts in
a particular situation.17 When reviewing questions of law, an
appellate court has an obligation to resolve the questions inde-
pendently of the conclusion reached by the trial court.18
IV. ANALYSIS
When confronted with an unimaginable loss like the one
experienced by the Bells, it is natural to ask, What more could
have been done? But tort law requires that a different question
be answered first, Was there a legal duty to do something more?
[4,5] In order to prevail in a negligence action, a plaintiff
must establish the defendant’s duty to protect the plaintiff
from injury, a failure to discharge that duty, and damages
proximately caused by the failure to discharge that duty.19 The
threshold issue in any negligence action is whether the defend­
ant owes a legal duty to the plaintiff.20
Throughout the pendency of this case, the childcare centers
have argued they cannot be liable in tort for Cash’s death,
because they had no legal duty to protect him from Cullen. The
childcare centers unsuccessfully sought a no-duty determina-
tion before trial and again during trial. On cross-appeal, the
childcare centers argue it was error for the trial court to find
they owed a duty on the facts of this case.
16
United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196(2015).
17
McReynolds v. RIU Resorts & Hotels, 293 Neb. 345, 880 N.W.2d 43(2016). See, also, Durre v. Wilkinson Development, 285 Neb. 880, 830
N.W.2d 72 (2013); Blaser v. County of Madison, 285 Neb. 290, 826
N.W.2d 554 (2013).
18
Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017); O’Brien
v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).
19
McReynolds v. RIU Resorts & Hotels, supra note 17.
20
Id.; Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136Before directly addressing the parties’ arguments on the
threshold question of duty, we review the general duty frame-
work set out in § 7 of the Restatement (Third) of Torts, which
this court adopted in A.W. v. Lancaster Cty. Sch. Dist. 0001.21
1. Duty A nalysis Under R estatement
(Third) of Torts
(a) § 7: Duty of Reasonable Care
When Actor’s Conduct Creates
Risk of Physical Harm
The cornerstone of the duty analysis under the Restatement
(Third) is set out in § 7(a): “An actor ordinarily has a duty to
exercise reasonable care when the actor’s conduct creates a
risk of physical harm.” Section 7(b) recognizes that even when
an actor’s conduct creates a risk of harm, there can be “excep-
tional cases, when an articulated countervailing principle or
policy warrants denying or limiting liability in a particular
class of cases [and] a court may decide that the defendant has
no duty or that the ordinary duty of reasonable care requires
modification.”
Since adopting the duty analysis of § 7 in 2010,22 this
court has applied both the general duty rule articulated in
§ 7(a)23 and the policy-based exception to that rule articulated
in § 7(b).24 But the instant case presents a question we have not
fully explored under the risk architecture of the Restatement
(Third): When does an actor’s conduct create a risk of physical
harm sufficient to trigger the ordinary duty of reasonable care
under § 7?
[6] This question is central to the duty framework of the
Restatement (Third), because the ordinary duty of reasonable
21
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.
22
See id.23
See, e.g., Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012);
Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).
24
See, e.g., McReynolds v. RIU Resorts & Hotels, supra note 17; Kimminau
v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136care under § 7 is expressly conditioned on the actor’s hav-
ing engaged in conduct that creates a risk of physical harm
to another.25 And, as the comments to § 7 recognize, “[i]n the
absence of conduct creating a risk of harm to others, an actor
ordinarily has no duty of care to another.”26
Although “conduct creating a risk of harm” is the touchstone
of duty under § 7, that section does relatively little to develop
the concept. Comments to § 7 explain that “[a]n actor’s con-
duct creates a risk when the actor’s conduct or course of
conduct results in greater risk to another than the other would
have faced absent the conduct.”27 Additional guidance is found
in the comments to the Restatement (Third) of Torts, § 6,
which explain:
The conduct that creates the risk must be some affirma-
tive act, even though the negligence might be charac-
terized as a failure to act. For example, an automobile
driver creates risks to others merely by driving, although
the negligence may be failing to employ the brakes at
an appropriate time or failing to keep a proper look-
out. By contrast, when the only role of an actor is fail-
ing to rescue or otherwise intervene to protect another
from risks created by third persons or other events,
courts need to give explicit consideration to the question
of duty.28
Section 37 of the Restatement (Third) of Torts,29 discussed
below, also addresses the foundational concept that the duty
of reasonable care is limited to risks created by the actor’s
affirm­ative conduct.
25
Restatement (Third) of Torts, supra note 15, § 7, comment l.
26
Id. at 83.
27
Id., comment o. at 84.
28
Id., § 6, comment f. at 69.
29
Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 37 (2012).
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136(b) § 37: No Duty of Care Regarding
Risks Not Created by
Actor’s Conduct
[7] Section 37 of the Restatement (Third) provides: “An
actor whose conduct has not created a risk of physical or emo-
tional harm to another has no duty of care to the other unless a
court determines that one of the affirmative duties provided in
§§ 38-44 is applicable.”30 The Restatement (Third) explains the
relationship between §§ 7 and 37 as follows:
Section 7 of this Restatement states the general principle
that an actor has a duty of reasonable care when the
actor’s conduct creates a risk of physical harm to others.
[Section 37] states a complementary principle: there is no
duty of care when another is at risk for reasons other than
the conduct of the actor, even though the actor may be
in a position to help. As with any no-duty rule, this one
pretermits consideration of an actor’s negligence. In the
absence of a duty, the actor cannot be held liable.31
[8-10] The rationale for the no-duty rule under § 37 is pre-
mised, in part, on a distinction long recognized in the com-
mon law of torts between affirmatively creating a risk of harm
and merely failing to prevent it.32 As the Reporter for the first
Restatement of Torts explained:
“There is no distinction more deeply rooted in the com-
mon law and more fundamental than that between mis-
feasance and non-feasance, between active misconduct
working positive injury to others and passive inaction, a
failure to take positive steps to benefit others, or to pro-
tect them from harm not created by any wrongful act of
the defendant . . . .”33
30
Id. at 2.
31
Id., comment b. at 3.
32
Id., Reporters’ Note, comment a.
33
Id. at 8, quoting Francis H. Bohlen, The Moral Duty to Aid Others as a
Basis of Tort Liability, 56 U. Pa. L. Rev. 217 (1908).
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BELL v. GROW WITH ME CHILDCARE & PRESCHOOL
Cite as 299 Neb. 136In theory, the difference between actively creating risk and
failing to prevent it is fairly clear,34 but in practice, it can
be difficult to discern.35 Comments to § 37 suggest that one
way to determine whether an actor’s conduct created a risk
of harm is to “explore, hypothetically, whether the same risk
of harm would have existed even if the actor had not engaged
in the conduct.”36 Similarly, comments in § 7 suggest that to
determine whether an actor’s conduct has created the risk, it is
useful to “consider whether, if the actor had never existed, the
harm would not have occurred.”37
But under § 37, even a determination that a defendant’s
conduct did not create a risk of physical harm to the plaintiff
does not necessarily end the duty inquiry. This is because § 37
recognizes an exception to the no-duty rule when a court has
determined that another recognized affirmative duty is applica-
ble.38 Generally speaking, these affirmative duties arise from
special relationships that courts have determined justify the
imposition of an affirmative duty to act.39
The Restatement (Third) identifies several such special
relationships40 and cautions the list is not exclusive; courts
may decide to recognize other areas for affirmative duties
under § 37, just as they may decide—for reasons of policy or
principle—to recognize additional no-duty rules under § 7.41
Among others, the Restatement (Third) recognizes an affirma-
tive duty when the actor has a special relationship with the
34
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56 (5th
ed. 1984).
35
See Restatement (Third) of Torts, supra note 29, § 37, comment c.
36
Id. at 4.
37
Restatement (Third) of Torts, supra note 15, § 7, Reporters’ Note, comment
l. at 103.
38
See Restatement (Third) of Torts, supra note 29.
39
See, e.g., Keeton et al., supra note 34.
40
Restatement (Third) of Torts, supra note 29, §§ 40 to 42.
41
Id., § 37, comment b.
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Cite as 299 Neb. 136plaintiff 42 or when the actor has a special relationship with a
person who poses a risk to the plaintiff.43 The term “‘special
relationship’ has no independent significance,” but “merely
signifies that courts recognize an affirmative duty arising out
of the relationship where otherwise no duty would exist pursu-
ant to § 37.”44
Since 2010, this court has cited approvingly to § 37 in
several cases.45 Likewise, we have relied on the framework
of that section in recognizing the principle that even when
an actor’s conduct does not create a risk of physical harm,
the actor may still owe an affirmative duty of care based on
a special relationship.46 For instance, we have recognized and
adopted several of the special relationship provisions found
in the Restatement (Third), including the special relationship
between a school and its students,47 the special relationship
between an employer and its employees,48 the special relation-
ship between a landlord and its tenants,49 and the special rela-
tionship between a custodian and those in its custody.50 All of
these special relationships have in common the characteristic
that the actor is in a position to exercise some degree of control
over the other person.51
42
Id., § 40.
43
Id., § 41.
44
Id., § 40, comment h. at 42.
45
See, Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 899 N.W.2d
227 (2017); Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012);
Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).
46
See Rodriguez v. Catholic Health Initiatives, supra note 45.
47
See, Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017);
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.
48
Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
49
Peterson v. Kings Gate Partners, 290 Neb. 658, 861 N.W.2d 444 (2015).
50
Rodriguez v. Catholic Health Initiatives, supra note 45; Ginapp v. City of
Bellevue, supra note 45.
51
See Restatement (Third) of Torts, supra note 29, § 41, comment c.
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Cite as 299 Neb. 136For the sake of completeness, we observe that before
adopting the duty analysis under the Restatement (Third),52
we generally relied on § 315 of the Restatement (Second) of
Torts53 to analyze whether a defendant had an affirmative duty
to control the conduct of a third person to prevent them from
causing physical harm to others.54 Section 315 also focused
the duty inquiry on whether a special relationship existed,
providing:
There is no duty to control the conduct of a third per-
son so as to prevent him from causing physical harm to
another unless
(a) a special relation exists between the actor and the
third person which imposes a duty upon the actor to con-
trol the third person’s conduct, or
(b) a special relation exists between the actor and the
other which gives to the other a right to protection.55
The Restatement (Third) instructs that § 37 is intended to
replace Restatement (Second) § 315.56 To the extent § 37
provides the framework for those special relationship rules
this court has previously recognized in §§ 40 and 41 of the
Restatement (Third), we find § 37 is consistent with Nebraska’s
jurisprudence and, to that extent only, adopt its rationale.
Mindful of the duty framework of the Restatement (Third)
§§ 7 and 37, we now consider the threshold legal question
presented here: Did the childcare centers owe a legal duty to
protect Cash from the risk of physical harm by Cullen?
2. Duty A nalysis Under
R estatement (Third)
The district court found the childcare centers owed a duty
of reasonable care to Cash under the general duty rule of the
52
See A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.
53
Restatement (Second) of Torts § 315(a) (1965).
54
See Ginapp v. City of Bellevue, supra note 45.
55
Restatement (Second) of Torts, supra note 53, § 315 at 122.
56
See Restatement (Third) of Torts, supra note 29, comment a.
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Cite as 299 Neb. 136Restatement (Third) § 7, reasoning that their failure to report
Cullen’s suspected child abuse created a risk of physical harm
to Cash. In the childcare centers’ cross-appeal, they assign this
as error.
The childcare centers argue, summarized, that (1) they did
not owe a legal duty to Cash under § 7 of the Restatement
(Third) and (2) they had no special relationship with either
Cash or Cullen that would support recognition of an affirma-
tive duty under any other section of the Restatement (Third).
The childcare centers also argue that Nebraska’s reporting
statutes57 do not create a private right of action or establish a
duty in tort.
[11] In responding to the cross-appeal, the Bells expressly
reject any suggestion that they are claiming Nebraska’s
reporting statutes create a tort duty or give rise to a private
right of action, and they do not claim the failure to report
suspected abuse amounts to negligence per se. Instead, the
Bells argue—as they have throughout the pendency of this
case—that the childcare centers owe everyone, including
Cash, a general duty of reasonable care under § 7 of the
Restatement (Third). In other words, the Bells do not charac-
terize the childcare centers’ failure to report Cullen’s abuse as
the source of any legal duty, but instead suggest it is evidence
the childcare centers breached their general duty of reason-
able care. Given the Bells’ position, it is not necessary, in this
case, to consider whether Nebraska’s reporting statutes create
a private right of action or an affirmative duty in tort to act in
protection of another, because that question is not presented.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it.58
It is necessary, however, to address the Bells’ suggestion
that § 7 of the Restatement (Third), and our adoption of that
57
§§ 28-718 and 28-720.
58
State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017); State v. Botts, 25
Neb. App. 372, 905 N.W.2d 704 (2017).
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Cite as 299 Neb. 136section in A.W. v. Lancaster Cty. Sch. Dist. 0001,59 effectively
recognized a general duty of reasonable care to all others at all
times. This interpretation of § 7 was advanced at oral argument
before this court, and it is incorrect.
[12] As explained earlier, § 7 of the Restatement (Third)
does not recognize a universal duty to exercise reasonable care
to all others in all circumstances. Rather, it imposes a general
duty of reasonable care only on an actor whose conduct has
created a risk of physical harm to another, and it recognizes
that absent such conduct, an actor ordinarily has no duty of
care to another.60 The expansion of § 7 urged by the Bells is not
supported by the Restatement (Third) and is inconsistent with
our prior decisions applying that section.
[13] Instead, we apply the framework of the Restatement
(Third) to determine whether the childcare centers owed a legal
duty to Cash or the Bells. Under that framework, the first step
is to determine whether the actor’s affirmative conduct created
a risk of physical harm such that the general duty to exercise
reasonable care under § 7 is applicable. If no such affirma-
tive conduct exists, then the next step is to determine whether
any special relationship exists that would impose a recognized
affirmative duty on the actor with regard to the risks arising
within the scope of that relationship.
(a) Conduct of Childcare Centers Did
Not Create Risk of Harm
In addressing the threshold question of legal duty, the trial
court found the childcare centers’ “conduct of not reporting
suspected child abuse created a risk of physical harm to Cash.”
This finding was erroneous for several reasons.
First, by finding the failure to report suspected abuse gave
rise to a legal duty of reasonable care, the trial court conflated
the separate concepts of legal duty and breach of that duty. The
failure to report suspected abuse might present a question of
59
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.
60
See Restatement (Third) of Torts, supra note 15, § 7, comment l.
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Cite as 299 Neb. 136breach, but it does not speak to the existence of a legal duty.
Here, the trial court effectively found that the same failure to
act both created the legal duty and breached it.
[14-17] The failure to rescue or protect another from harm
is not conduct creating a risk of harm under § 7 and does not
give rise to a duty of care under that section. Under the duty
analysis of the Restatement (Third), the conduct creating the
risk must be some affirmative act, even though the claimed
breach can be a failure to act.61 When the only role of the actor
is failing to intervene to protect others from risks created by
third persons, the actor’s nonfeasance cannot be said to have
created the risk.62 Generally speaking, the law does not recog-
nize a duty of care when others are at risk of physical harm for
reasons other than the conduct of the actor, even if the actor
may be in a position to help.63 Ordinarily, the failure to act will
not be the sort of affirmative conduct that gives rise to a duty
under § 7.
However, at oral argument before this court, the Bells char-
acterized the childcare centers’ actions not as the failure to
report, but, rather, as the affirmative conduct of hiding Cullen’s
abuse from authorities. This argument illustrates the sometimes
fragile distinction between nonfeasance and misfeasance in
tort jurisprudence. But even if the childcare centers’ conduct
can be characterized as affirmative, it is insufficient to create
a legal duty under § 7 of the Restatement (Third), because the
conduct did not create a risk of physical harm.
There is little doubt that Cullen herself posed a risk of harm
to children in her care. And while the childcare centers pre-
sented evidence that they investigated Cullen’s behavior and
concluded it did not amount to reportable child abuse, it is
frankly appalling to think that a childcare center would conceal
any mistreatment of children in its care. But even if Cullen’s
61
Id., § 6, comment f.
62
See id.
63
Restatement (Third) of Torts, supra note 29, comment b.
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Cite as 299 Neb. 136behavior had been reported and an investigation ultimately
confirmed abuse, the risk of harm posed by Cullen would
remain the same. Under § 7, “[a]n actor’s conduct creates a
risk when the actor’s conduct or course of conduct results in
greater risk to another than the other would have faced absent
the conduct.”64 And whatever the childcare centers’ reasons
may have been for not reporting Cullen’s behavior, their failure
to do so did not create or increase the risk Cullen posed, rather
it allowed the risk to continue unabated.
As such, whether framed as the failure to report suspected
abuse or as the affirmative act of concealing suspected abuse,
the childcare centers’ conduct did not create or increase the
risk of physical harm to Cash or the Bells and was insuffi-
cient to create a duty under § 7. The trial court erred in find-
ing otherwise.
(b) No Special Relationship or
Other Affirmative Duty
[18] Even when an actor’s conduct does not create a risk
of physical harm, the actor may still owe an affirmative
duty of care based on a special relationship.65 The Bells
argue that a special relationship between the childcare cen-
ters and Cullen created a duty to protect third parties such as
Cash and the Bells from the risk of harm posed by Cullen.
Specifically, the Bells contend the special relationship of
employer and employee created a legal duty under § 41(b)(3)
of the Restatement (Third).
[19] Section 41 of the Restatement (Third) provides that
“[a]n actor in a special relationship with another owes a duty
of reasonable care to third parties with regard to risks posed
by the other that arise within the scope of the relationship.”66
Among the relationships identified in § 41 is that of “an
employer with employees when the employment facilitates
64
Restatement (Third) of Torts, supra note 15, § 7, comment o. at 84.
65
See Rodriguez v. Catholic Health Initiatives, supra note 45.
66
Restatement (Third) of Torts, supra note 29, § 41(a) at 64-65.
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Cite as 299 Neb. 136the employee’s causing harm to third parties.”67 We have
not expressly adopted the special relationship set out in
§ 41(b)(3), and do not do so here, because the present facts
do not support the existence of a special relationship under
that section.
Comments explaining the duty of reasonable care under § 41
of the Restatement (Third) observe that all of the special rela-
tionships identified in that section are ones in which the actor
has some degree of control over the other person.68 The Bells
acknowledge that the employer/employee relationship between
Cullen and the childcare centers terminated before Cash was
born, and they do not suggest the childcare centers had any
control over Cullen after she left their employ. But the Bells
argue that § 41 still gives rise to a duty in this case, because
“Cullen’s employment with [the childcare centers] facilitated
her ability to cause harm to third parties.”69 Specifically, the
Bells argue that “[a]bsent Cullen’s untarnished records at the
[childcare centers], Cullen would not have become [Cash’s]
nanny and, further, would not have abused and, ultimately,
killed Cash . . . .”70
This argument misconstrues the provisions of § 41. As the
comments to that section make clear, an employer facilitates
the employee causing harm to third-parties only when the
employment “provides the employee access to physical loca-
tions, such as the place of employment, or to instrumentalities,
such as a concealed weapon that a police officer is required to
carry while off duty, or other means by which to cause harm
that would otherwise not be available to the employee.”71
If Cullen had been employed by the childcare centers when
she fatally injured Cash, our analysis under § 41 would be
67
Id., § 41(b)(3) at 65.
68
See id., comment c.
69
Reply brief on cross-appeal for appellants at 16.
70
Id.
71
Restatement (Third) of Torts, supra note 29, § 41, comment e. at 67.
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Cite as 299 Neb. 136very different. But the risk that Cullen posed to Cash and
the Bells did not arise within the scope of her prior employ-
ment with either of the childcare centers, and nothing about
Cullen’s prior employment provided Cullen with the means,
location, or instruments used to inflict harm on Cash. The fact
that Cullen highlighted her prior employment when seeking
the nanny position with Christopher and Ashley cannot fairly
be characterized as the childcare centers’ facilitating Cullen’s
criminal acts.
We find, as a matter of law, that there was no special rela-
tionship under § 41(b)(3) between the childcare centers and
Cullen that could give rise to an affirmative duty to prevent
Cullen from causing physical harm to Cash after she left
their employ.
We emphasize the narrow nature of our holding in this case.
This opinion does not disturb the jury’s verdict against Cullen
finding her liable in tort for Cash’s death and awarding dam-
ages to the estate and the Bells. Nor does this opinion impact
the duty of a childcare provider to protect children in its care
from the risk of physical or emotional abuse, or immunize
childcare providers from the criminal consequences of failing
to notify authorities of child abuse or neglect under the report-
ing statutes.72
But on the facts of this case, we cannot find that either § 7
or § 41(b)(3) of the Restatement (Third) supports the existence
of a legal duty owed by the childcare centers to Cash or the
Bells. Indeed, if we were to recognize a legal duty to protect
others from harm based exclusively on the failure to report
suspected abuse, such a duty could expose every citizen in
Nebraska who witnesses possible abuse or neglect and fails to
report it, to potentially limitless civil tort liability for the future
criminal acts of abusers over whom they have no control, and
with whom they have no special relationship.
Therefore, although our reasoning differs from that articu-
lated by the trial court, we affirm the decision to direct a
72
§§ 28-718 and 28-720.
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Cite as 299 Neb. 136verdict in favor of the childcare centers, because, as a matter
of law, the childcare centers owed no legal duty to Cash or the
Bells. Because we have resolved this appeal on the threshold
issue of duty, it is unnecessary to address any of the remaining
assignments of error.73
V. CONCLUSION
Given the magnitude of the loss suffered by the Bells, we
realize the result of this appeal may appear harsh, but the law
does not permit recovery on these facts. As a matter of law,
the childcare centers cannot be liable in tort for Cash’s death,
because their conduct did not create a risk of physical harm
to Cash and because they did not have a special relationship
with either Cash, the Bells, or Cullen that would give rise to
an affirmative duty to protect Cash from the risks posed by
Cullen. Because there can be no liability in tort in the absence
of a legal duty, we must affirm the trial court’s decision to
direct a verdict in favor of the childcare centers.
A ffirmed.
Wright, J., not participating in the decision.
73
See Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739
N.W.2d 162 (2007).