Mother v. Lancaster County Sch. Dist. 0001

• Court: Nebraska Supreme Court
• Citation: A.W. v. Lancaster Cnty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (Neb. 2010)
• Decision Date: 16 July 2010
• Docket Number: No. S-09-485.,S-09-485.
• Parties: A.W., mother and next friend of C.B., and A.W., appellants,v.LANCASTER COUNTY SCHOOL DISTRICT 0001, also known as Lincoln Public Schools, appellee.

280 Neb. 205

784 N.W.2d 907

A.W., mother and next friend of C.B., and A.W., appellants,v.LANCASTER COUNTY SCHOOL DISTRICT 0001, also known as Lincoln Public Schools, appellee.

No. S-09-485.

Supreme Court of Nebraska.

July 16, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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 reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

3. Negligence: Proof. In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.

4. Negligence. The duty in a negligence case is to conform to the legal standard of reasonable conduct in the light of the apparent risk.

5. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

6. Negligence. It is for the fact finder in a negligence case to determine, on the facts of each individual case, whether or not the evidence establishes a breach of duty.

7. Negligence: Words and Phrases. A “duty” is an obligation, to which the law gives recognition and effect, to conform to a particular standard of conduct toward another.

8. Negligence. An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.

9. Negligence: Liability: Public Policy. In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that a defendant has no duty or that the ordinary duty of reasonable care requires modification.

10. Negligence. Whether a duty exists is a policy decision, and a lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination.

11. Negligence. In a negligence case, a defendant's conduct should be examined not in terms of whether there is a “duty” to perform a specific act, but, rather, whether the conduct satisfied the duty placed upon an individual to exercise that degree of care as would be exercised by a reasonable person under the circumstances.

12. Negligence. Foreseeable risk is an element in the determination of negligence, not legal duty. In order to determine whether appropriate care was exercised, the fact finder must assess the foreseeable risk at the time of the defendant's alleged negligence.

13. Negligence: Tort-feasors. Foreseeability helps define what conduct the standard of care requires under the circumstances and whether the conduct of an alleged tort-feasor conforms to that standard.

14. Negligence: Proof. Foreseeability is not a factor to be considered by courts when making determinations of duty.

Vincent M. Powers, of Vincent M. Powers & Associates, Lincoln, for appellants.

John M. Guthery and Derek A. Aldridge, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

C.B., a kindergarten student at Arnold Elementary School in northwest Lincoln, Nebraska, was sexually assaulted in a school restroom during the school day. C.B.'s mother, A.W., sued the Lincoln Public Schools (LPS) on C.B.'s behalf, alleging that LPS' negligence permitted the assault to occur. The district court, however, entered summary judgment for LPS, reasoning that the assault was not foreseeable.

The fundamental issue in this appeal, as framed by the parties, is whether LPS had a legal duty to C.B. to protect him from the assault. But we conclude that our case law has, in the past, placed factual questions of foreseeability in the context of a legal duty when they are more appropriately decided by the finder of fact in the context of determining whether an alleged tort-feasor's duty to take reasonable care has been breached. As a result, we find that the questions of foreseeability presented in this appeal are matters of fact, not of law, and that there is a genuine issue of material fact regarding whether LPS' conduct met its duty of reasonable care. We reverse, and remand for further proceedings.

BACKGROUND

Assault of C.B.

On September 22, 2005, Joseph Siems entered Arnold Elementary School through the main entrance. The door was not locked, but there was a sign next to the entrance informing visitors that they needed to check in with the main office, which was just inside. If they checked in, they would be signed into the building and issued a visitor's nametag. The hallway inside the entrance was visible through glass windows to the two secretaries who worked in the office, and the secretaries were to watch the hallway to make sure that no visitors went past the office without signing in.

Siems went past the office without signing in. Apparently, Siems came in during the lunch hour, when one of the office secretaries was at lunch and the other was making photocopies. One of the regular secretaries was not working that day, and the replacement secretary may not have been instructed to make sure that everyone who came into the building checked in. For whatever reason, no one saw Siems come in the door. But Siems was spotted in the entrance hallway shortly thereafter by a teacher, Kathi Olson. Siems had a cigarette behind his ear and was carrying a backpack; Olson thought he looked out of place. Olson asked Siems if she could help him find anything, but he ignored her. Olson went directly to the office to see if anyone matching Siems' description had signed in.

Two other teachers, Kelly Long and Connie Peters, were monitoring some first graders when they also saw Siems in the hallway. They decided that Long would talk to Siems while Peters stayed with the students. Long saw the contact between Siems and Olson, and when Siems came near, Long asked Siems if she could help him. Siems did not respond, but after the question was repeated, Siems said he needed to use the restroom. Long pointed out a nearby restroom and told Siems that he needed to return to the main office after using the restroom. Siems went toward the restroom, and Long went to her classroom and used the telephone to report the incident to the main office. Long knew that there were no students in that restroom at the time. But Long did not watch Siems to see where he went. Peters saw Siems go into the restroom that Long had indicated, then saw him come out and go back down the hallway. Then she lost sight of him. Although no one saw him, it is apparent that Siems went back down the hallway and into another restroom closer to the main entrance.

One of the school secretaries had seen Siems briefly in the hallway as she was returning from lunch. She answered the telephone when Long called the office. Olson was still there and had just determined that Siems had not signed in. After hearing from Olson and Long, the secretary went to the cafeteria to inform Shannon Mitchell, the administrator in charge of the school at the time. In the meantime, C.B., who was 5 years old, had returned from a trip to the restroom and told his teacher, Susan Mulvaney, that “there was a bad man in the restroom.” C.B. later reported that Siems had pulled down C.B.'s pants and briefly performed oral sex on him. Mulvaney stayed at the door of her classroom, next to C.B., and watched the restroom door.

After speaking to the secretary in the cafeteria, Mitchell went to the restroom and saw Siems sitting in a stall. When Mitchell arrived, there were no children in the restroom. Mitchell also saw some children in the hallway approaching the restroom; she prevented them from entering. While doing so, she encountered Mulvaney, who told her what C.B. had said. Mitchell used Mulvaney's telephone to call the office and initiate a “Code Red” lockdown of the school, then went to the office and called the 911 emergency dispatch service.

The Code Red was initiated pursuant to the LPS “Safety and Security Plan” and “Arnold School Emergency Procedures and Security” guidelines that were in effect at the time. Those procedures had been put in place in compliance with LPS “Policy 6411” and “Regulation 6411.1,” which required the establishment of district-wide and site-based emergency plans. Generally speaking, the LPS plan required school personnel responding to a trespasser to nonconfrontationally contact the trespasser and, based on what followed, consider calling a Code Red. The Arnold Elementary School procedures explained, generally, the individual responsibilities associated with a Code Red and described the lockdown procedures.

After initiating the Code Red and calling 911, Mitchell went to some benches in the hallway near the restroom and watched the restroom door, along with an assistant principal who was in the building and a school custodian. After being contacted by the assistant principal, Siems left the restroom and then the building, followed by the assistant principal and custodian. The custodian detained Siems as police arrived, and Siems was taken into police custody.

Procedural History

C.B.'s mother, A.W., filed this claim against LPS on C.B.'s behalf under the Political Subdivisions Tort Claims Act.¹ As relevant, A.W. alleged that LPS was negligent in failing to have an effective security system and in allowing a stranger to enter C.B.'s school. A.W. alleged that LPS failed to use reasonable care to protect C.B.

LPS filed a motion for summary judgment, supported by evidence of the events described above,...