Thomas v. Bd. of Trs. of the Neb. State Colls.
| Decision Date | 19 May 2017 |
| Docket Number | No. S-16-480,S-16-480 |
| Citation | 296 Neb. 726,895 N.W.2d 692 |
| Parties | LaTanya THOMAS, individually and as Special Administrator of the Estate of Tyler Thomas, deceased, and Kevin Semans, Appellants, v. BOARD OF TRUSTEES OF the NEBRASKA STATE COLLEGES and Joshua Keadle, Appellees. |
| Court | Nebraska Supreme Court |
Vincent M. Powers and Elizabeth A. Govaerts, of Vincent M. Powers & Associates, Lincoln, for appellants.
Ronald F. Krause and Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Board of Trustees of the Nebraska State Colleges.
No appearance for appellee Joshua Keadle.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
In the fall of 2010, Tyler Thomas (Thomas) and Joshua Keadle were both students at Peru State College (PSC). On December 3, 2010, Thomas went missing. This appeal arises from Keadle's alleged abduction, rape, and murder of Thomas.
LaTanya Thomas, as the special administrator of Thomas' estate, and LaTanya Thomas and Kevin Semans, individually as Thomas' mother and father (collectively the appellants), filed their fifth amended complaint against the Board of Trustees of the Nebraska State Colleges (Board) and Keadle in the district court for Nemaha County. The appellants filed their action under the State Tort Claims Act and sought damages from the Board for the wrongful death of Thomas, Thomas' pain and suffering, and LaTanya Thomas' and Semans' severe emotional distress. The appellants' causes of action are premised upon the Board's alleged negligence. The appellants also sued Keadle, but their claims against Keadle are not before the court in this appeal.
The appellants and the Board each filed a motion for summary judgment. After a hearing, the district court filed an order in which it granted the Board's motion for summary judgment, denied the appellants' motion, and dismissed the appellants' fifth amended complaint against the Board with prejudice. The appellants subsequently filed a motion for default judgment against Keadle, which was granted as to liability. Following a jury trial on damages, the district court filed an order in which it entered a monetary judgment against Keadle based on the jury's monetary verdict.
The appellants appeal from the district court's order in which it granted summary judgment in favor of the Board. Because we conclude that the risk of Keadle's alleged acts of abducting, raping, and murdering Thomas was not foreseeable as a matter of law, we affirm the district court's order which granted summary judgment in favor of the Board.
In the fall of 2010, Thomas was a freshman student at PSC and lived in a dormitory on campus. Keadle was also a student at PSC, and he lived in the dormitory room next to Thomas'. Keadle was 10 years older than Thomas. Thomas went missing and was last seen on December 3.
In their fifth amended complaint, filed March 19, 2014, the appellants alleged that Thomas was abducted, assaulted, and murdered by Keadle. Although Thomas' body has not been recovered, she has been declared dead by a Nebraska court.
In their fifth amended complaint against the Board and Keadle, the appellants sought damages for the wrongful death of Thomas, for Thomas' pain and suffering prior to her death, and for the severe emotional distress of LaTanya Thomas and Semans as Thomas' parents and next of kin. The appellants' causes of action against the Board are premised upon the Board's negligence. Claims against Keadle are not at issue in this appeal.
On May 27, 2014, the Board filed its answer in which it generally denied the allegations set forth in the appellants' fifth amended complaint and raised various affirmative defenses.
On July 2, 2015, the appellants and the Board each filed a motion for summary judgment. A hearing on the parties' motions was held. Prior to the hearing, the Board filed objections and a motion to strike a number of the appellants' exhibits, including police reports and transcripts and recordings of police interviews with Keadle. The Board's objections to these exhibits were based on "the grounds of being irrelevant, immaterial and constituting hearsay and containing hearsay." At the hearing on the motions for summary judgment, the district court stated that it was "going to take the exhibits offered subject to these objections and ... the motion."
The evidence received at the hearing is summarized as follows: In August 2010, Keadle applied to be a volunteer strength and conditioning assistant coach for the PSC women's basketball team. When the athletic director learned that Keadle was serving as a voluntary staff member prior to a criminal background check, Keadle's involvement with the women's basketball team was terminated pending completion of a check. The human resources office's criminal background check showed minor traffic offenses.
In September 2010, PSC's director of housing and security received an email from one of his employees informing him that according to a sheriff's deputy, Keadle had been "convicted of robbery of $300 and stealing a purse, in '09 also has other burglary's [sic] but he was not charged for them, also has a forcible fondling (RAPE) on a 18yr old female charge on record, but the charges were droped [sic]." The director of housing and security testified that he verbally informed PSC's athletic director, PSC's vice president for enrollment management and student affairs, and PSC's human resources director about the contents of the email before Thomas' disappearance, but the three administrators deny that they learned about the contents of the email prior to Thomas' disappearance. A second background check on Keadle conducted by the human resources office showed minor traffic offenses and a misdemeanor theft conviction. The director of housing and security recommended that Keadle be removed from the dormitory.
During this time, PSC's athletic director contacted the athletic director at a college Keadle had previously attended for a reference regarding Keadle. The athletic director at that college did not recommend hiring Keadle, and PSC's athletic director decided that Keadle would not be allowed to serve as a voluntary assistant.
In September 2010, Keadle was charged with two separate violations of PSC's code of conduct based on allegations of inappropriate sexual behavior toward two female students. Neither of the complaints involved Thomas, and neither involved physical contact. With respect to the first charge, Keadle pled responsible and was issued sanctions that consisted of online educational activity and 10 hours of community service. Keadle did not complete these sanctions. With respect to the second charge, Keadle pled not responsible, and after a hearing, he was found not responsible.
PSC's vice president for enrollment management and student affairs testified that although Keadle could have been dismissed from PSC for failure to complete the sanctions, such action would have been out of line with PSC's general past practices. Instead, she testified that generally, when a student failed to complete a sanction, a hold was placed on the student's account so the student could not proceed beyond that semester.
In October 2010, Keadle was charged with a third violation of PSC's code of conduct, because he had damaged the door to his dormitory room. Keadle failed to attend a meeting regarding this incident, and the matter was turned over to the Nemaha County authorities. As of December 3, it was being processed in the court system.
On August 19, 2015, the district court filed its order regarding the parties' motions for summary judgment. The district court did not make specific rulings regarding the Board's objections to the exhibits; instead, the district court stated: "The court has excluded from its consideration all irrelevant facts submitted and any hearsay that was offered for the purpose of proving the truth of said facts." The district court first determined that, based on the admissible evidence, the Board did not owe a duty to Thomas to prevent Keadle's violent actions, because any such actions occurred off PSC's campus. The district court then determined that even if the court had determined there were inferences indicating that the crime or part of the crime had occurred on campus, the appellants failed to present evidence creating a material issue of fact whether the Board could have or should have foreseen that Keadle would harm Thomas. The district court stated:
While the [appellants'] counsel made a compassionate presentation for his clients by assembling various faults with Keadle[,] the totality of what is in the record known by the Board of Keadle prior to December 3, 2010, falls far short of what is necessary to present a factual issue of foreseeability to a fact finder. It would be a quantum leap in foreseeability.
Based on the foregoing, the district court granted summary judgment in favor of the Board and denied the appellants' motion for summary judgment. The district court dismissed the appellants' fifth amended complaint against the Board with prejudice.
Subsequently, the district court granted the appellants' motion for default judgment against Keadle and entered default judgment against him on the issue of liability. A jury trial was held regarding the issue of damages against Keadle, and the district court filed an order in which it entered a monetary judgment on the jury's verdict.
The appellants filed a timely appeal from the district court's August 19, 2015, order which granted summary judgment in favor of the Board.
The appellants claim, consolidated and restated, that the district court erred when it (1) granted the Board's motion for summary judgment, (2) determined that the Board did not owe a duty to protect Thomas, and (3) determined that Keadle's alleged abduction, assault, and murder of Thomas were not foreseeable.
An appellate court will affirm a lower c...
To continue reading
Request your trial
-
Gillpatrick v. Sabatka-Rine
...78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).26 Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).27 Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).28 Id.29 In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017) ; State v. Harris, 296 Neb. 317, 893 N.W.2d 440......
-
Susman v. Kearney Towing & Repair Ctr., Inc.
..., 227 Neb. 306, 417 N.W.2d 327 (1988).13 Wilke v. Woodhouse Ford , 278 Neb. 800, 774 N.W.2d 370 (2009).14 See, Thomas v. Board of Trustees , 296 Neb. 726, 895 N.W.2d 692 (2017) ; A.W. v. Lancaster Cty. Sch. Dist. 0001 , 280 Neb. 205, 784 N.W.2d 907 (2010).15 Hodson v. Taylor , 290 Neb. 348,......
-
Waldron v. Lancaster Cnty. Deputy Sheriff James Roark, S-16-676.
...v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).2 Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).3 Id.4 Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).5 O'Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731 (2014).6 Id.7 O'Neil v. City of Iowa City, Iowa, 496......
-
Spagna v. Park Ave. Phi Psi House, Inc.
...the fact finder must assess the foreseeable risk at the time of the defendant's alleged negligence." Thomas v. Bd. of Trs. of Neb. State Colls. , 296 Neb. 726, 895 N.W.2d 692, 699 (2017) (citing Pittman v. Rivera , 293 Neb. 569, 879 N.W.2d 12 (2016) ; A.W. , 784 N.W.2d 907 ). Nebraska law "......