Ginapp v. City of Bellevue

necessary for the record to establish, by clear and convincing
evidence, that termination is in a child’s best interests. In this
case, the record establishes both Victoria’s failure as a parent,
along with the foster parents’ willingness to provide Elizabeth
with stability and permanency.
In fact, in arguing for relinquishment, Victoria seems to
agree that adoption by the foster parents is in Elizabeth’s best
interests. And while Gibreal did not specifically opine that
termination was in Elizabeth’s best interests, she did opine
that Elizabeth’s needs were being met by her foster parents,
that placement with the foster parents was in Elizabeth’s best
interests, that Elizabeth needed permanency as soon as possi-
ble, and that reunification with Victoria was not a realistic goal.
In short, the record contains clear and convincing evidence
that terminating Victoria’s parental rights was in Elizabeth’s
best interests.
V. ConClusIon
While we agree with Victoria that the juvenile court should
have ordered the Department to accept relinquishment of her
parental rights, we also agree with the Department that the
relinquishment is moot. And we find no merit to Victoria’s
claim that the court erred in terminating her parental rights.
The juvenile court’s judgment is affirmed.
A ffirmed.
Wright, J., not participating in the decision.
GInApp v. CITy of bEllEVuE 	1027
Cite as 282 neb. 1027
JAn ginApp, Appellee , v. C ity of Bellevue ,
neBrAskA, AppellAnt, And A legent heAlth
midlAnds hospitAl , Appellee .
809 n.W.2d 487
filed January 6, 2012. 	no. s-11-193.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
pursuant to the political subdivisions Tort Claims Act, the factual findings of the
trial court will not be disturbed on appeal unless they are clearly wrong. When
determining the sufficiency of the evidence to sustain the trial court’s judgment,
it must be considered in the light most favorable to the successful party; every
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

controverted fact must be resolved in favor of such party, and it is entitled to the
benefit of every inference that can be deduced from the evidence.
2. 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.
3. Negligence: Proof. In order to recover in a negligence case, a plaintiff must show
a legal duty owed by the defendant to the plaintiff, a breach of such duty, causa-
tion, and damages.
4. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
5. ____. An actor ordinarily has a duty to exercise reasonable care when the actor’s
conduct creates a risk of physical harm.
6. ____. The conduct of a defendant can lack reasonable care insofar as it foresee-
ably combines with or permits the improper conduct of the plaintiff or a third
party.
7. ____. An actor whose conduct has not created a risk of physical harm to another
has no duty of care to the other unless an affirmative duty created by another
circumstance is applicable.
8. ____. An actor in a special relationship with another owes a duty of reasonable
care to third persons with regard to risks posed by the other that arise within the
scope of the relationship.
9. ____. To the extent that a custodian has some custody and control of a person
posing dangers to others, the custodian has an affirmative duty to exercise reason-
able care, consistent with the extent of custody and control.
Appeal from the District Court for sarpy County: WilliAm
B. ZAsterA, Judge. Reversed and remanded with directions.
Robert s. lannin, of shively & lannin, p.C., l.l.o., and, on
brief, Richard C. Grabow for appellant.
patrick R. Guinan, of Erickson & sederstrom, p.C., l.l.o.,
for appellee Alegent Health Midlands Hospital.
steven M. lathrop and Terry M. Anderson, of Hauptman,
o’brien, Wolf & lathrop, p.C., for appellee Jan Ginapp.
heAviCAn, C.J., C onnolly, gerrArd, stephAn, mCC ormACk ,
and miller-lermAn, JJ.
gerrArd, J.
Jan Ginapp, a registered nurse, was injured on the job in a
violent assault committed by a patient who had been admitted
to the hospital after he was taken into emergency protective
custody by the City of bellevue, nebraska, police department.
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The questions presented in this appeal are whether bellevue’s
duty to control the assailant’s behavior ended when he was
admitted to the hospital and whether bellevue breached that
duty by taking him to the hospital in the first place.
bACkGRounD
on July 4, 2007, at 4:14 p.m., bellevue police were dis-
patched to an apartment in bellevue based on a report that 18-
year-old Ray Gilpin was “out of control.” When they arrived,
they learned that Gilpin had used a hammer to destroy walls, a
door, and a window in his mother’s apartment. Gilpin had also
possessed a notebook containing statements indicating a desire
to kill people and a drawing of a cube with the word “help” in
the center. The notebook had been torn and stabbed with a pen.
Gilpin’s mother explained that while Gilpin was destroying the
apartment, he had been laughing and mumbling. she hid in the
bathroom and got dressed, but Gilpin pounded on the bathroom
door and told her to get out. she took her car keys and left, but
Gilpin followed her and got into the car. Gilpin’s mother drove
him to his aunt’s house in omaha, nebraska.
one of the officers contacted omaha police and had them
pick up Gilpin and return him to his mother’s apartment. Gilpin
was cooperative until he saw his mother, but then he became
agitated, spit on her and police, and yelled obscenities. bellevue
police then took Gilpin to Midlands Hospital (Midlands), where
he remained cooperative. Gilpin arrived at Midlands’ emer-
gency room at 5:33 p.m. The “Emergency Admittance” form
completed by bellevue police at 5:45 p.m. provided a descrip-
tion of Gilpin’s behavior that day and indicated that Gilpin was
mentally ill and dangerous toward others.
When a person is taken into emergency protective custody
by bellevue police, the protectee is handcuffed and is not free
to leave police custody. but emergency protective custody is
a medical issue, and the protectee is neither under arrest nor
charged with a crime. Any final determination as to whether
the protectee is a threat is made by a mental health board. It
was the bellevue police Department’s policy, when leaving a
protectee in an emergency room, not to leave until the officers
believed the protectee was under control. but if the protectee
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later became disruptive and law enforcement support was
required, Midlands was to call police in papillion, nebraska,
not bellevue, because Midlands is in papillion.
The bellevue police Department’s written policy concern-
ing emergency protective custody also provided that protect-
ees were to be placed in appropriate psychiatric care through
the spring Center, at that time, a local mental health treat-
ment center. Midlands does not provide psychiatric care, so
Midlands was the preferred destination only if medical care
was needed before transportation to a psychiatric facility. but
other evidence in the record suggests that despite that writ-
ten policy, bellevue police routinely transported protectees to
Midlands. The record in this case does not indicate whether
Gilpin was transported to Midlands because of any medical
issue, although he later tested positive for use of illegal drugs.
The detaining officer testified in his deposition that he did not
remember contacting the spring Center and did not remember
why Gilpin was transported to Midlands as opposed to some
other destination.
Gilpin was triaged at 6:06 p.m. by a triage nurse, and
Midlands admitted him for medical screening. He continued
to cooperate with hospital personnel. A Midlands’ emergency
room admission record describes him as a patient in emergency
protective custody who was “being medically screened prior
to transfer to psych hospital.” bellevue police remained with
Gilpin throughout this process, at times displaying a stun gun
to ensure that they kept physical control of him, and removing
his handcuffs only when necessary. The bellevue officers did
not depart until 7:10 p.m., and Midlands security was present
when the police left. According to the Midlands security offi-
cer, Gilpin “got a little restless a couple of times but not so out
of control” and complied with voice direction.
Although the record does not reflect whether bellevue police
contacted the spring Center, Midlands’ medical records indi-
cate that Midlands was in contact with the spring Center that
evening, a few minutes after the police left, and was eventu-
ally informed that no psychiatric placement would be avail-
able that evening. Gilpin tested positive for marijuana and
barbiturates. He was examined by a Midlands doctor who again
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recommended admission, pending bed availability. Gilpin was
placed in one of Midlands’ intensive care units.
At the time of the incident, Ginapp was a registered nurse
employed at Midlands. she worked in the intensive care unit
(ICu) and intensive immediate care unit (IMCu), which is a
post-intensive-care unit. The ICu and IMCu are on different
sides of the same floor: 9 beds are in the ICu and 16 beds are
in the IMCu. because Midlands does not provide psychiatric
services, emergency protective custody patients at Midlands,
such as Gilpin, are usually in the ICu, unless no beds are
available.
on the next day—July 5, 2007—Ginapp was the charge
nurse, responsible for managing both the ICu and IMCu.
Gilpin was in the IMCu because it had the only available bed.
Ginapp had Gilpin moved closer to the nurses’ station so that
she would have a better view of him and to get him away from
an exit door. later that day, Gilpin became agitated about hav-
ing to use the commode and was cursing and making a com-
motion. Ginapp went to his room and successfully calmed him.
Hospital security was not present in the ICu or IMCu, nor
was Gilpin restrained. Ginapp explained that she did not have
the authority to order that a patient be restrained and did not
believe that Gilpin’s behavior warranted calling for a doctor’s
order to restrain him.
but later in the evening of July 5, 2007, Gilpin had another
outburst. Ginapp had security called and then went to Gilpin’s
room to try to calm him again. she convinced Gilpin to return
to bed, but after about a minute, he lunged at her. He hit her
on the left side of her face and she fell to the floor, where he
continued beating her as she lay on the floor. Ginapp was seri-
ously injured, incurred substantial medical expenses and lost
wages, and still suffers from headaches and debilitating double
vision. After the assault, Gilpin was restrained, and later that
day, he was transferred by ambulance to an available psychiat-
ric care placement.
Ginapp sued bellevue in district court pursuant to the
political subdivisions Tort Claims Act,1 alleging that her
1 neb. Rev. stat. §§ 13-901 to 13-927 (Reissue 2007).
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injuries 	resulted 	from 	the 	bellevue 	police 	Department’s
negligence. Midlands is part of the Alegent Health system
(Alegent), and bellevue moved to join Alegent as a neces-
sary party, for purposes of both apportionment of negligence
and workers’ compensation subrogation. The court denied
bellevue’s motion as it related to apportionment, but added
Alegent as a party to protect its workers’ compensation subro-
gation interest.
After a bench trial, the court found that Gilpin was still in
bellevue police custody while at Midlands, so bellevue had a
duty to prevent Gilpin from injuring third persons. The court
also found that bellevue knew or should have known that
Gilpin was a substantial risk to cause serious harm. The court
found that the bellevue police Department was negligent in
transporting Gilpin to Midlands, which had no psychiatric
ward. The court refused to allocate negligence to Alegent, and
entered judgment for Ginapp against bellevue in the amount of
$350,000. bellevue appeals.
AssIGnMEnTs of ERRoR
bellevue assigns, as consolidated and restated, that the court
erred in (1) finding that bellevue police had custody of Gilpin;
(2) not finding that bellevue’s officers exercised due care; (3)
finding that bellevue police owed a duty to Ginapp; (4) fail-
ing to allocate the negligence of Midlands and proportionally
reducing bellevue’s liability; (5) failing to allocate negligence
between bellevue, Midlands, and Ginapp; and (6) awarding
excessive damages.
sTAnDARD of REVIEW
[1,2] In actions brought pursuant to the political subdivisions
Tort Claims Act, the factual findings of the trial court will not
be disturbed on appeal unless they are clearly wrong.2 When
determining the sufficiency of the evidence to sustain the trial
court’s judgment, it must be considered in the light most favor-
able to the successful party; every controverted fact must be
2 Stonacek v. City of Lincoln, 279 neb. 869, 782 n.W.2d 900 (2010).
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resolved in favor of such party, and it is entitled to the benefit
of every inference that can be deduced from the evidence.3 but
when reviewing questions of law, an appellate court has an
obligation to resolve the questions independently of the conclu-
sion reached by the trial court.4
AnAlysIs
[3-6] In order to recover in a negligence case, a plaintiff
must show a legal duty owed by the defendant to the plaintiff,
a breach of such duty, causation, and damages.5 The question
whether a legal duty exists for actionable negligence is a ques-
tion of law dependent on the facts in a particular situation.6 An
actor ordinarily has a duty to exercise reasonable care when
the actor’s conduct creates a risk of physical harm.7 And the
conduct of a defendant can lack reasonable care insofar as it
foreseeably combines with or permits the improper conduct of
the plaintiff or a third party.8
[7,8] When discussing a defendant’s duty to control the
behavior of a third party, we have previously relied on the
Restatement (second) of Torts,9 which provides that there is no
duty to control the conduct of a third person as to prevent him
from causing physical harm to another unless “a special relation
exists between the actor and the third person which imposes a
duty upon the actor to control the third person’s conduct,” and
explains that “[o]ne who takes charge of a third person whom
he knows or should know [is] likely to cause bodily harm to
others if not controlled is under a duty to exercise reasonable
care to control the third person to prevent him from doing such
3 Id.
4 Id.
5 Riggs v. Nickel, 281 neb. 249, 796 n.W.2d 181 (2011).
6 Id.
7 Id.
8 Restatement (Third) of Torts: liability for physical and Emotional Harm
§ 19 (2010).
9 Restatement (second) of Torts § 315(a) at 122 (1965).
GInApp v. CITy of bEllEVuE 	1033
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harm.”10 The Restatement (Third) of Torts11 similarly explains
that an actor whose conduct has not created a risk of physi-
cal harm to another has no duty of care to the other unless an
affirmative duty created by another circumstance is applicable,
but that “[a]n actor in a special relationship with another
owes a duty of reasonable care to third persons with regard
to risks posed by the other that arise within the scope of the
relationship.”12
There is little question in this case that when bellevue police
took Gilpin into emergency protective custody, they assumed
a duty to exercise reasonable care to prevent him from caus-
ing harm to others.13 The questions presented in this appeal
are when that duty ended and whether it was discharged suf-
ficiently before it did.
[9] specifically, bellevue argues that the district court erred
in finding that its legal custody of Gilpin continued even
after he was admitted to Midlands. We agree. As we have
explained, the duty of a custodian to prevent a person in cus-
tody from causing harm to others is premised on the degree
of control afforded to one who “‘takes charge’” of another.14
The Restatement (Third) of Torts explains that the custodial
relationship need not be “24/7 physical custody giving the cus-
todian complete control over the other person,” but that to the
extent that “there is some custody and control of a person pos-
ing dangers to others, the custodian has an affirmative duty to
exercise reasonable care, consistent with the extent of custody
and control.”15 The extent of bellevue’s control here is not at
issue, because the record is clear that by the time the assault
occurred (and well before it), bellevue police had no custody
or control of Gilpin.
10 Id., § 319 at 129.
11 see Restatement (Third), supra note 8, § 37 (proposed final Draft no. 1,
2005).
12 Id., § 41(a) at 778.
13 see id., comment f.
14 see Bartunek v. State, 266 neb. 454, 462, 666 n.W.2d 435, 441 (2003).
15 Restatement (Third), supra note 8, § 41, comment f. at 783.
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under the nebraska Mental Health Commitment Act,16 a
law enforcement officer who has probable cause to believe that
a person is mentally ill and dangerous may take such person
into emergency protective custody.17 The person taken into
emergency protective custody “shall be admitted to an appro-
priate and available medical facility,”18 and the officer executes
a written certificate alleging the officer’s belief that the per-
son in custody is mentally ill and dangerous and summariz-
ing the behavior supporting such allegations.19 A copy of that
certificate is immediately forwarded to the county attorney.20
The administrator of the medical facility then has the person
evaluated by a mental health professional as soon as reasonably
possible but not later than 36 hours after admission, and the
person is released from emergency protective custody after the
evaluation unless the mental health professional determines, in
his or her clinical opinion, that the person is mentally ill and
dangerous.21 A mental health professional reaching that conclu-
sion also completes a written certificate that is immediately
forwarded to the county attorney.22 And if the county attorney
elects to petition for involuntary commitment, the subject of
the petition is held in the “nearest appropriate and available
medical facility.”23
That procedure was properly initiated by law enforcement
here. The district court seems to have reasoned that because
a person taken into “emergency protective custody” remains
in custody, and is not free to leave, bellevue police still had
a custodial relationship with Gilpin at the time of the assault.
but as explained above, that is not how the nebraska Mental
Health Commitment Act works. Just because Gilpin remained
16 neb. Rev. stat. §§ 71-901 to 71-963 (Cum. supp. 2006).
17 § 71-919(1).
18 § 71-919(2)(a).
19 § 71-919(3).
20 Id.
21 § 71-919(4).
22 § 71-920.
23 § 71-922(2).
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in “emergency protective custody,” pending decisions by a men-
tal health professional and the county attorney, did not mean
that he remained in the custody of bellevue police. And even
if bellevue police had retained some lingering legal connection
to Gilpin, it is equally clear that for purposes of evaluating
bellevue’s tort liability, it is actual custody and control that
gives rise to a duty to prevent harm to third persons. bellevue
had no such control here.
but that is not dispositive of bellevue’s liability, because
it is not disputed that Gilpin was in bellevue’s custody for at
least some time, and a failure to exercise reasonable care dur-
ing that time could support liability. for instance, had bellevue
police simply released Gilpin or negligently permitted him to
escape, which then would have given him the opportunity to
assault someone, bellevue might have been liable. but that
liability would not arise out of custody of Gilpin at the time
of the assault—indeed, the loss of custody would be the basis
for the tort claim. Instead, that liability would arise out of
bellevue’s failure to exercise reasonable care while Gilpin was
in custody.
so, the issue here is whether bellevue, while Gilpin was
actually in its custody, exercised reasonable care. The dis-
trict court found that bellevue failed to transport Gilpin to an
“appropriate” medical facility for emergency protective care
purposes. The court concluded that because Midlands does not
have a psychiatric ward, it was not an “appropriate” facility to
hold individuals in emergency protective custody.
The record, however, establishes that Midlands was a com-
mon destination for persons being held in emergency protective
custody, from bellevue and other law enforcement agencies.
It was Midlands’ practice to transfer such patients to other
facilities, when they were medically stable, but that does not
mean that law enforcement had a duty, in tort or under the
nebraska Mental Health Commitment Act, to transport detain-
ees to another facility initially.
The record also establishes, beyond reasonable dispute, that
when Gilpin was contacted by omaha police, he was coopera-
tive. only in the presence of his mother was he disruptive, and
once transported from her apartment, he was again cooperative
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with police and hospital personnel during admission. Hospital
personnel were notified of Gilpin’s behavior leading to his
detention. bellevue police remained with Gilpin at Midlands
for nearly 2 hours, and the detaining officer explained that
bellevue police only left the hospital under such circumstances
“with the understanding that we left with the person being calm
and it was safe — we felt it was safe at the time and that the
medical staff were aware of the situation and that they were
comfortable with us leaving.” And in this case, when the offi-
cers left, they did so after Midlands agreed to admit Gilpin and
with Midlands security personnel in control of him.
Taken as a whole, the record establishes no basis upon
which to conclude that bellevue police did not exercise reason-
able care in detaining Gilpin and transporting him to Midlands.
The question whether Midlands was the best medical facility to
detain Gilpin for mental health evaluation is not one on which
a law enforcement officer should be expected to act as the final
authority, and there is no evidence in this record to prove that
the bellevue officers in this case acted unreasonably in trans-
porting Gilpin to Midlands or relying upon Midlands’ willing-
ness to accept Gilpin and admit him.
It is true that bellevue’s official law enforcement policy on
emergency protective custody provided that placement was to
be conducted by contacting the spring Center and that trans-
portation to Midlands was only preferred if medical care was
required. The record does not establish, one way or the other,
whether the spring Center was contacted regarding Gilpin
before he was taken to Midlands. nor does the record estab-
lish whether police suspected the medical issue presented by
Gilpin’s drug use. The question, however, is not solely whether
bellevue’s written procedure was followed, but whether the
measures that were taken in this case were reasonable. We con-
clude, as a matter of law, that they were. The district court was
clearly wrong in concluding otherwise.
Given that conclusion, there is no basis in the record for
finding that bellevue was liable for Ginapp’s injuries. While
Ginapp’s injuries are clearly substantial, her remedy is from
her employer for workers’ compensation or from Gilpin him-
self. bellevue was not responsible for Gilpin’s actions on
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July 5, 2007, and the district court erred in concluding other-
wise. Having reached that conclusion, we need not consider
bellevue’s remaining arguments.
ConClusIon
The district court erred in concluding that Gilpin was in
bellevue’s custody at the time of the assault and that bellevue
law enforcement acted unreasonably in transporting Gilpin to
Midlands and permitting him to be admitted. The judgment of
the district court is reversed, and the cause is remanded with
directions to enter judgment in favor of bellevue.
reversed And remAnded With direCtions.
Wright, J., not participating.
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