Popple by Popple v. Rose

• Decision Date: 20 February 1998
• Docket Number: No. S-96-310,S-96-310
• Citation: 573 N.W.2d 765,254 Neb. 1
• Parties: Casey POPPLE and Nicholas Popple, minors, by Brian POPPLE and Maureen Popple, next friends, et al., Appellants, v. Wayne ROSE and Sharon Rose, Appellees.
• Court: Nebraska Supreme Court

Page 765

573 N.W.2d 765

254 Neb. 1

Casey POPPLE and Nicholas Popple, minors, by Brian POPPLE and Maureen Popple, next friends, et al., Appellants, v. Wayne ROSE and Sharon Rose, Appellees.

No. S-96-310.

Supreme Court of Nebraska.

Feb. 20, 1998.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose 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: Evidence: Proof. After the moving party has shown facts warranting judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law.

3. Appeal and Error. To the extent issues of law are presented, an appellate court is obligated to reach independent conclusions irrespective of the determinations made by the court below.

4. Parent and Child: Liability: Damages. Neb.Rev.Stat. § 43-801 (Reissue 1993) provides that the parents shall be jointly and severally liable for the willful and intentional infliction of personal injury to any person or destruction of real and personal property occasioned by their minor or unemancipated children residing with them, or placed by them under the care of other persons, provided that in the event of personal injuries willfully and intentionally inflicted by such child or children, damages shall be recoverable only to the extent of hospital and medical expenses incurred but not to exceed the sum of $1,000 for each occurrence.

5. Statutes: Appeal and Error. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

6. Statutes: Intent. Statutes which effect a change in the common law or take away a common-law right should be strictly construed, and a construction which restricts or removes a common-law right should not be adopted unless the plain words of the act compel it.

7. Parent and Child: Liability. Neb.Rev.Stat. § 43-801 (Reissue 1993) imposes vicarious liability on parents of children who intentionally inflict personal injury.

8. Liability: Legislature. Neither the plain meaning of Neb.Rev.Stat. § 43-801 (Reissue 1993) nor the legislative history can be read to abrogate common-law liability.

9. Negligence. An action predicated on a duty to warn is essentially a negligence action, requiring a duty, breach, proximate cause, and damages.

10. Negligence. The threshold inquiry in any negligence action, including those involving a duty to warn, is whether the defendant owed the plaintiff a duty.

11. Negligence. Actionable negligence cannot exist if there is no legal duty to protect the plaintiff from injury.

12. Negligence: Words and Phrases. A duty is defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.

13. Negligence. Duty is a question of whether the defendant is under any obligation for the benefit of the plaintiff; in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in light of the apparent risk.

14. Negligence. Determining whether a legal duty exists is a question of law dependent on the facts of a particular situation.

15. Negligence: Liability: Damages: Words and Phrases. Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.

16. Negligence. A duty to warn cannot be imposed absent a special relationship.

Michael C. Klein, of Anderson, Klein, Peterson, Swan and Bogle Louthan, Holdrege, for appellants.

Daniel L. Lindstrom, of Jacobsen, Orr, Nelson, Wright, Harder & Lindstrom, P.C., Kearney, for appellees.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WHITE, Chief Justice.

This case raises the issue of whether the parents of a minor child have a duty to warn third parties of the child's allegedly known dangerous sexual propensities. We removed this case, pursuant to our power to regulate the Nebraska Court of Appeals' caseload and that of this court, to determine whether a parental duty to warn exists in the State of Nebraska. See Neb.Rev.Stat. § 24-1106 (Reissue 1995).

In September 1992, Brian Popple and Maureen Popple hired W.R. to care for their children, Casey and Nicholas. On November 23, while babysitting the children, W.R. physically overpowered Casey and sexually assaulted him, forcibly committing acts of masturbation, fellatio, and sodomy. W.R. did not sexually assault Nicholas, but forced him to witness these events. At the time, W.R. was nearly 13 years old, Nicholas was 9, and Casey was 6.

W.R. was charged with sexual assault in the juvenile court for Phelps County and admitted the charges. The Popples then filed suit in district court and claimed Wayne Rose and Sharon Rose, W.R.'s parents, negligently failed to warn them of W.R.'s allegedly known dangerous sexual propensities. The Popples argued they were not seeking recovery under the parental vicarious liability statute, Neb.Rev.Stat. § 43-801 (Reissue 1993), but, rather, were seeking to hold the Roses liable for their independent negligence in failing to warn the Popples of W.R.'s allegedly known dangerous sexual propensities. In response, the Roses filed a motion for summary judgment.

The district court granted the motion and held that § 43-801 was the Popples' exclusive remedy. The court also held that no independent duty existed upon which to predicate negligence, because Nebraska has not recognized a cause of action based upon parents' failure to warn of their children's known dangerous sexual propensities. The Popples' motion for a new trial was overruled, and they appeal.

The Popples contend the district court erred in (1) holding that Nebraska does not recognize a cause of action based on parents' negligent failure to warn of their children's known dangerous sexual propensities; (2) holding that § 43-801 was their exclusive remedy; (3) sustaining the Roses' motion for summary judgment; and (4) overruling the Popples' motion for new trial.

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose 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. Farmers Union Co-op. Ins. Co. v. Allied Prop. & Cas., 253 Neb. 177, 569 N.W.2d 436 (1997). After the moving party has shown facts warranting judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law. Melick v. Schmidt, 251 Neb. 372, 557 N.W.2d 645 (1997). To the extent issues of law are presented, an appellate court is obligated to reach independent conclusions irrespective of the determinations made by the court below. Farr v. Designer Phosphate & Premix Internat., 253 Neb. 201, 570 N.W.2d 320 (1997).

The evidence discloses that prior to engaging W.R. as a babysitter, the Popples knew W.R. had a history of physically violent behavior. The record, however, is devoid of any evidence indicating the Roses, the Popples, or any other person was aware W.R. possessed any propensity to commit any acts of sexual assault and/or abuse. In addition, the record is also devoid of any evidence intimating that W.R. even possessed such a habit. In sum, the record is absent any evidence that W.R. demonstrated a history of committing acts of sexual assault and/or abuse or that anyone knew he was prone to such conduct.

The Popples initially argue § 43-801 is inapplicable because their claims are not based on the Roses' vicarious liability for W.R.'s intentional acts. Rather, the Popples claim that liability is based on the Roses' independent negligence in failing to warn third parties of W.R.'s allegedly known propensity to sexually assault and/or abuse minor children. As the Popples' first assignment of error is dispositive, we address only that issue. See First Nat. Bank v. Daggett, 242 Neb. 734, 497 N.W.2d 358 (1993).

We must initially determine whether § 43-801 abrogates common-law liability and provides the exclusive source of recovery for claimants filing suit based on the intentional acts of children. Section 43-801 provides as follows:

The parents shall be jointly and severally liable for the willful and intentional infliction of personal injury to any person or destruction of real and personal property occasioned by their minor or unemancipated children residing with them, or placed by them under the care of other persons; Provided, that in the event of personal injuries willfully and intentionally inflicted by such child or children, damages shall be recoverable only to the extent of hospital and medical expenses incurred but not to exceed the sum of one thousand dollars for each occurrence.

In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. State ex rel. City of Elkhorn v. Haney, 252 Neb. 788, 566 N.W.2d 771 (1997). Statutes which effect a change in the common law or take away a common-law right should be strictly construed, and a construction which restricts or removes a common-law right should not be adopted unless the plain words of the act compel it. Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996).

Section 43-801 imposes vicarious liability on parents of...