Green v. Box Butte General Hosp.

GREEN v. BOX BUTTE GENERAL HOSP. 	243
Cite as 284 Neb. 243
therefore affirm Gaskill’s Class IV felony conviction under
§ 29-4011(1) based on his failure to comply with § 29-4004(9)
of SORA.
A ffirmed.
StephAn, J., participating on briefs.
BrAdley e. G reen, Appellee And croSS-AppellAnt,
v. Box Butte G enerAl hoSpitAl,
AppellAnt And croSS-Appellee.
818 N.W.2d 589
Filed August 3, 2012. 	No. S-11-576.
1. 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, and gives the party the benefit of all reasonable
inferences deducible from the evidence.
2. Summary Judgment. Summary judgment is proper when the pleadings, depo-
sitions, and admissions on file, together with affidavits, show there exists no
genuine issue either as to any material fact or as to the ultimate inferences to be
drawn therefrom and show the moving party is entitled to judgment as a matter
of law.
3. ____. As a procedural equivalent to a trial, a summary judgment is an extreme
remedy because a summary judgment may dispose of a crucial question in liti-
gation, or the litigation itself, and may thereby deny a trial to the party against
whom the motion for summary judgment is directed.
4. Malpractice: Health Care Providers: Words and Phrases. Malpractice is
defined as a health care provider’s failure to use the ordinary and reasonable care,
skill, and knowledge ordinarily possessed and used under like circumstances by
members of his or her profession engaged in a similar practice in his or her local-
ity or in similar localities.
5. Health Care Providers: Negligence. The proper measure of the duty of a hos-
pital to a patient is the exercise of that degree of care, skill, and diligence used
by hospitals generally in the community where the hospital is located or in simi-
lar communities.
6. Malpractice: Health Care Providers: Proof: Proximate Cause. The plaintiff
patient in a medical malpractice action must provide proof of the generally recog-
nized medical standard involved, that there was a deviation from that standard by
the physician or medical care provider, and that such deviation was the proximate
cause of the plaintiff’s injury.
7. Summary Judgment: Proof. A party makes a prima facie case that it is entitled
to summary judgment by offering sufficient evidence that, assuming the evidence
went uncontested at trial, would entitle the party to a favorable verdict.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

244 	284 NEBRASKA REPORTS
8. ____: ____. After the moving party makes a prima facie case for summary judg-
ment, the burden to produce contrary evidence showing the existence of a mate-
rial issue of fact shifts to the party opposing the motion.
9. ____: ____. In the absence of a prima facie showing by the movant that he or
she is entitled to summary judgment, the opposing party is not required to reveal
evidence which he or she expects to produce at trial.
10. Health Care Providers: Negligence. Hospital policies and rules do not conclu-
sively determine the standard of care owed.
11. 	Summary Judgment: Affidavits. Affidavits filed on behalf of the parties mov-
ing for summary judgment are to be strictly construed.
12. ____: ____. The absence of counter-affidavits does not relieve a moving party
plaintiff from the burden of establishing the evidentiary facts of every element
necessary to entitle the plaintiff to summary judgment.
13. ____: ____. Supporting affidavits in summary judgment proceedings shall be
made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein.
14. Negligence. While the identification of the applicable standard of care is a ques-
tion of law, the ultimate determination of whether a party deviated from the
standard of care and was therefore negligent is a question of fact.
15. Negligence: Evidence: Tort-feasors. It is for the finder of fact to resolve what
conduct the standard of care would require under the particular circumstances
presented by the evidence and whether the conduct of the alleged tort-feasor
conformed with that standard.
16. Trial: Expert Witnesses. The trier of fact is not bound to accept expert opin-
ion testimony.
17. Summary Judgment: Trial. Summary judgment should not be used to deprive a
litigant of a formal trial if there is a genuine issue of fact.
18. Summary Judgment: Jury Trials. The purpose of summary judgment is not to
cut litigants off from their right of trial by jury if they really have issues to try.
19. Summary Judgment: Directed Verdict: Trial. A motion for summary judgment
is not a substitute for a motion for a directed verdict or for error proceedings
taken after a full trial.
Appeal from the District Court for Box Butte County: BriAn
c. SilvermAn and leo doBrovolny, Judges. Reversed and
remanded.
David A. Blagg and Brien M. Welch, of Cassem, Tierney,
Adams, Gotch & Douglas, for appellant.
Robert O. Hippe and Robert G. Pahlke, of Robert Pahlke
Law Group, P.C., L.L.O., for appellee.
heAvicAn, c.J., WriGht, connolly, StephAn, mccormAck,
and miller-lermAn, JJ.

GREEN v. BOX BUTTE GENERAL HOSP. 	245
Cite as 284 Neb. 243
mccormAck, J.
I. NATURE OF CASE
Bradley E. Green sued Box Butte General Hospital (Hospital)
after he fell and injured his left shoulder while admitted as a
patient. Green is a paraplegic. The Hospital allowed Green
to have his shower chair brought from home and attempt an
unassisted transfer from his wheelchair to the shower chair.
The district court granted partial summary judgment in favor
of Green on liability and proximate cause and ultimately found
damages of $3,733,022, which it capped at $1 million. The
issue is whether there was a genuine issue of material fact pre-
cluding summary judgment.
II. BACKGROUND
Green has been a paraplegic since 1985. He was admitted
to the Hospital on March 6, 2005, with pneumonia. On March
7, Green wanted to take a shower. The staff allowed Green
to have someone bring his personal shower chair from home.
A nurse’s aide placed the shower chair in the shower of the
patient bathroom. She then allowed Green to attempt to trans-
fer himself from his wheelchair to the shower chair unassisted.
During the transfer, the shower chair slipped and Green fell,
sustaining injuries to his left shoulder.
Green filed a complaint against the Hospital, alleging that
the Hospital was negligent and that it had failed to exercise a
degree of skill and care ordinarily exercised by a hospital in
Alliance, Box Butte County, Nebraska, or a similarly situated
area. Green alleged that such negligence and breach of the
standard of care were the proximate cause of Green’s injuries.
The Hospital generally denied that it had breached the standard
of care or that its employees’ actions had caused any injury or
damage to Green.
1. SummAry JudGment on liABility
After discovery, Green moved for partial summary judgment
on the issues of negligence and causation. In support of the
motion, Green offered his deposition testimony, the affidavit of
a professor of nursing, and the Hospital’s responses to Green’s
request for admissions. Green also introduced the deposition
testimony of his treating physician, the deposition testimony of

246 	284 NEBRASKA REPORTS
a registered practical nurse at the Hospital, and the deposition
testimony of a registered nurse at the Hospital. In opposition to
the motion for summary judgment, the Hospital presented the
affidavits of two of its employees who were present at the time
of Green’s fall.
The district court granted Green’s motion for partial sum-
mary judgment. The district court did not specifically state that
there was no material issue of fact, but instead stated that it
was “find[ing]” that the Hospital was “guilty of negligence”
and that the Hospital’s “negligence was a proximate cause of
injuries to [Green] the nature and extent of which will have to
be determined at trial.”
(a) Melissa Lucas and Carol Glass
Melissa Lucas, a nurse’s aide, testified that when Green
attempted to transfer from his wheelchair to his shower chair,
she was standing in the doorway of the bathroom. She testified
that she stood monitoring the situation with the intent of help-
ing Green if he needed help. She explained that the bathroom
was not large enough to allow her to be inside with the wheel-
chair, the shower chair, and Green. Lucas stated that before the
transfer, she had asked Green whether he wanted assistance
and he had indicated that he did not.
Carol Glass, a licensed practical nurse, testified that she was
in Green’s room changing the linens on his bed when Green
fell. She generally confirmed that the bathroom size was too
small to accommodate both a shower chair and a wheelchair.
She also confirmed that Green had fallen attempting to trans-
fer himself into his shower chair. Glass testified that after the
fall, Green was checked by a nurse for injuries before he was
assisted back into the shower chair. Glass testified that when
she asked Green whether he was injured, he indicated that he
was not.
(b) Green
Green testified in his deposition that when he requested to
take a shower, the “nurse,” presumably Lucas, asked “if I had
any means of taking a shower.” Green testified that the staff
did not seem to know what a shower chair was. Nevertheless,

GREEN v. BOX BUTTE GENERAL HOSP. 	247
Cite as 284 Neb. 243
the staff tried to find one in the Hospital. When they were
unable to, they allowed Green to have someone bring his
shower chair from home.
Green testified that in order to use the shower chair, noth-
ing more was required than to set it on the shower floor. Green
stated that after Lucas placed the shower chair in the bathroom,
she went back into his room. Because the bathroom was not
big enough to accommodate both the shower chair and his
wheelchair, Green parked his wheelchair halfway inside the
bathroom. Green then attempted to transfer himself from the
wheelchair to the shower chair.
According to Green, the shower chair suction cups did not
hold and the chair slipped out from underneath him, causing
him to fall. Green testified that he was alone in the bathroom
when he fell and that he had to push a call button to receive
assistance. Green stated that when two staff members came to
his aid, he instructed them how to get him back into his shower
chair. This was accomplished, and Green proceeded with his
shower without further incident. Green testified that after the
shower, there was no one around to assist him and he could not
reach the call button. But he was able to transfer himself back
into his wheelchair and get himself back into bed.
Green stated that when he fell, he hit his head and right arm
on the toilet, while his left arm was caught up in the air on
the shower chair. Green described the injuries resulting from
the fall, which included a tear of his left rotator cuff. Green
testified that in his 20 years of being paraplegic, he had never
fallen before while transferring himself from his wheelchair to
a shower chair.
(c) Susan Hoff and Hospital Policies
Susan Hoff, a registered nurse at the Hospital, testified that
a nurse assistant was qualified to move patients and help with
bathing. Hoff was apparently confronted with a copy of the
Hospital’s policies and procedures. Those policies and pro-
cedures were not themselves placed in evidence at the sum-
mary judgment hearing. Hoff noted that the policies regarding
patient transfers were for the safety of both the patient and the
employee doing the transfer.

248 	284 NEBRASKA REPORTS
In light of the policies and procedures presented to her,
Hoff admitted it was the Hospital’s policy to get additional
assistance when in doubt about the ability to transfer a
patient safely. And, if the patient is unable to bear his or her
own weight, it was the Hospital’s policy to use a mechani-
cal lift. Hoff explained that lifting usually required at least
two people.
Hoff testified that it was the Hospital’s policy that all
patients upon admission to the Hospital have a fall risk assess-
ment conducted. Hoff could not see, from the documents
presented to her, evidence that such a fall risk assessment was
conducted for Green when he was admitted on March 6, 2005.
Based on his paraplegia alone, Hoff admitted that Green should
have been assessed at a high risk for a fall.
Hoff testified that mechanical lifts were commonly used
for transfers of paraplegic patients, although “[i]t kind of
depends on the situation.” Hoff stated that when a paraplegic
patient wishes to shower, it was her practice to place a wheeled
shower chair in the patient’s room, where a mechanical lift
would assist in the transfer of the patient to the shower chair.
Once the patient is in the shower chair, the patient is wheeled
into the bathroom and into the shower. This type of transfer
with a mechanical lift could not be done within the bathroom
because of the limited space.
Hoff explained that a gaited belt would also be appropriate
for transferring a paraplegic patient, “[d]epend[ing] on [the
patient’s] upper body strength . . . .” When asked whether just
one person assisting a transfer was not in keeping with Hospital
policy, she said: “I don’t know for sure how to answer that one
because every situation is slightly different. But I guess based
on that I’d have to say yes.”
(d) Tina Pryor
Tina Pryor, a registered practical nurse at the Hospital,
described the different kinds of mechanical lifts available at the
Hospital, but was unfamiliar with the Hospital’s lift policy. She
had never used a mechanical lift to transfer a patient into the
bathroom to the shower, but noted that she worked the night

GREEN v. BOX BUTTE GENERAL HOSP. 	249
Cite as 284 Neb. 243
shift, when few people shower. Pryor was apparently deposed
because she had signed Green’s admission sheet.
(e) Dr. Joyce Black
The affidavit of Dr. Joyce Black was admitted over the
Hospital’s objections on the basis of hearsay and foundation.
Black received an associate degree in nursing and a bachelor
of science degree in nursing from colleges in Minnesota, and
she worked in Minnesota in various nursing positions from
1972 to 1979. Black later graduated from the University
of Nebraska Medical Center College of Nursing in Omaha,
Nebraska, first with a master of science degree in nursing
and later with a doctor of philosophy degree in nursing.
Since 1982 to the present, Black has worked in various teach-
ing positions at the University of Nebraska Medical Center
College of Nursing. Black did not aver that she is familiar
with the standard of care in Box Butte County or in simi-
lar communities.
Black stated that she had reviewed Green’s medical records
and the witness affidavits. Black stated that the medical
records revealed Green was a fall risk when admitted on
March 6, 2005. Black opined “to a reasonable degree of prob-
ability in my field of nursing expertise” that the Hospital
violated “the standard of care” in its treatment of Green by
(1) failing to have a reasonably safe environment for its
patients, (2) failing to be in compliance with the Americans
with Disabilities Act, (3) failing to have the equipment neces-
sary to care for patients such as Green, (4) failing to moni-
tor and properly assess Green before the fall, (5) failing to
adequately assess and determine that it was unsafe to allow
Green to transfer himself into the shower chair, (6) failing to
either support Green’s transfer to a shower chair in a safe and
secure manner or prohibit the unassisted transfer, (7) failing
to properly secure the shower chair, (8) failing to continue to
monitor the transfer, and (9) failing to conduct an adequate
injury assessment of Green after his fall. Black did not opine
as to whether any of the listed breaches of “the standard of
care” proximately caused injury to Green.

250 	284 NEBRASKA REPORTS
(f) Dr. Michele Arnold
Dr. Michele Arnold is a specialist in rehabilitation medicine.
She has been treating Green since before the fall for condi-
tions common to paraplegics relating to overuse of the arms
and hands, as well as for continued care for his spinal cord
injury. Arnold opined within a reasonable degree of medical
certainty that Green’s fall in the Hospital was the likely cause
of a full tear of Green’s left rotator cuff. She described the
medical, logistical, and psychological impact such an injury
has on paraplegics who rely primarily on upper body strength
for their mobility.
(g) Request for Admissions
The Hospital’s responses to Green’s request for admissions
admitted that Green injured his left shoulder while a patient
at the Hospital and that at the time Green was injured, he was
transferring himself, without assistance, from his wheelchair
to a shower chair. The Hospital admitted that there were no
shower chairs with accommodations for paraplegics available
at the Hospital at the time of Green’s fall and that Green had
his personal shower chair brought from home. But the Hospital
denied that the transfer was in contravention of its policies
and procedures, and the Hospital denied it had breached the
recognized standard of care. The Hospital also denied that
any breach of the standard of care was the proximate cause of
Green’s injuries.
2. triAl And verdict on dAmAGeS
After granting partial summary judgment in favor of Green,
the action proceeded to a bench trial on damages. The court
rendered a verdict in the amount of $31,687.18 for past medical
expenses, $701,334.95 for future medical expenses, $450,000
in past pain and suffering, and $2,550,000 in future pain
and suffering.
The parties agreed that Green’s action involved a political
subdivision governed by the Political Subdivisions Tort Claims
Act (PSTCA),1 as well as medical malpractice, governed by
1 Neb. Rev. Stat. §§ 13-901 to 13-927 (Reissue 2007).

GREEN v. BOX BUTTE GENERAL HOSP. 	251
Cite as 284 Neb. 243
the Nebraska Hospital-Medical Liability Act (NHMLA).2 The
PSTCA has a $1 million cap on damages, while the NHMLA
has a cap of $1,750,000.3 Hospitals under the NHMLA are
responsible for only $500,000 of the recovery, however, and the
balance is paid by the Excess Liability Fund.4 Green’s attorney
repeatedly conceded to the district court that the lesser of the
two caps, the PSTCA, would apply, and the Hospital did not
disagree. Therefore, the court capped damages under the PSTCA
at $1 million.
The court found that 19.6 percent of the capped award,
$196,000, was for medical needs and 80.4 percent, $804,000,
was for noneconomic losses. The court denied the Hospital’s
motions for new trial and to alter or amend the judgment, and
granted Green costs of $1,377.74, above and beyond the cap.
The Hospital appeals the district court’s grant of partial
summary judgment, the amount of damages, and the fact that
the costs of $1,377.74 were not included in the capped dam-
ages. Green cross-appeals the district court’s order of dam-
ages insofar as it employed the PSTCA cap instead of the
NHMLA cap and it failed to tax additional costs requested
by Green.
III. ASSIGNMENTS OF ERROR
The Hospital assigns that the district court erred in (1) grant-
ing summary judgment on negligence, (2) admitting the Black
affidavit in support of Green’s motion for summary judgment,
(3) its determination of the amount of damages, (4) taxing
costs above the cap provided by the PSTCA, and (5) denying
its motion for new trial.
Green assigns in his cross-appeal that the district court erred
in (1) applying the recovery cap from the PSTCA rather than
the cap from the NHMLA and (2) finding that the Hospital had
a reasonable chance of a successful defense and, accordingly,
denying costs and attorney fees under § 44-2834.
2 Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010).
3 See §§ 13-926 and 44-2825.
4 See §§ 44-2829 and 44-2832.

252 	284 NEBRASKA REPORTS
IV. STANDARD OF REVIEW
[1] 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, 	and 	gives 	that
party the benefit of all reasonable inferences deducible from
the evidence.5
V. ANALYSIS
[2,3] Summary judgment is proper when the pleadings,
depositions, and admissions on file, together with affidavits,
show there exists no genuine issue either as to any material
fact or as to the ultimate inferences to be drawn therefrom and
show the moving party is entitled to judgment as a matter of
law.6 As a procedural equivalent to a trial, a summary judgment
is an extreme remedy because a summary judgment may dis-
pose of a crucial question in litigation, or the litigation itself,
and may thereby deny a trial to the party against whom the
motion for summary judgment is directed.7 In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment
was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.8 We agree with the
Hospital that the district court erred in granting summary judg-
ment in favor of Green.
We begin with the elements of Green’s cause of action.
Green’s petition was framed as a cause of action for hospital
malpractice.9 A court may not enter a summary judgment on an
issue not presented by the pleadings.10 Green alleged the fol-
lowing in his petition:
5 Westin Hills v. Federal Nat. Mortgage Assn., 283 Neb. 960, 814 N.W.2d
378 (2012).
6 See, Soukop v. ConAgra, Inc., 264 Neb. 1015, 653 N.W.2d 655 (2002);
State Farm Fire & Cas. Co. v. van Gorder, 235 Neb. 355, 455 N.W.2d 543
(1990).
7 Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000).
8 Westin Hills v. Federal Nat. Mortgage Assn., supra note 5.
9 See Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001).
10 Slagle v. J.P. Theisen & Sons, 251 Neb. 904, 560 N.W.2d 758 (1997).

GREEN v. BOX BUTTE GENERAL HOSP. 	253
Cite as 284 Neb. 243
The treatment, care and supervision rendered by Defendant
HOSPITAL and its employees [were] negligent and failed
to exercise a degree of skill and care ordinarily exercised
by hospitals engaged in providing medical care such that
there was a breach of the standard medical care for a
hospital in Alliance, Box Butte County, Nebraska or a
similarly situated area, and were the proximate cause of
injuries to GREEN . . . .
[4,5] Malpractice is defined as a health care provider’s fail-
ure to use the ordinary and reasonable care, skill, and knowl-
edge ordinarily possessed and used under like circumstances
by members of his or her profession engaged in a similar prac-
tice in his or her locality or in similar localities.11 The NHMLA
specifically provides for use of the locality rule.12 The proper
measure of the duty of a hospital to a patient is the exercise
of that degree of care, skill, and diligence used by hospitals
generally in the community where the hospital is located or in
similar communities.13
[6] The plaintiff patient in a medical malpractice action must
provide proof of the generally recognized medical standard
involved, that there was a deviation from that standard by the
physician or medical care provider, and that such deviation
was the proximate cause of the plaintiff’s injury.14 In hospital
and other medical malpractice cases, the plaintiff must usually
produce expert testimony to support his or her prima facie case
of negligence and causation.15
Under the so-called common knowledge exception, where
negligence or causation may be inferred from the facts by a
layman with common knowledge and experience and with
11 See Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118 (2011).
12 Neb. Rev. Stat. § 44-2810 (Reissue 2010).
13 Casey v. Levine, supra note 9; Miles v. Box Butte County, 241 Neb. 588,
489 N.W.2d 829 (1992).
14 See Anderson v. Moore, 202 Neb. 452, 275 N.W.2d 842 (1979).
15 See, Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008); Thone v.
Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008); Fossett
v. Board of Regents, supra note 7. See, also, e.g., Krenek v. St. Anthony
Hosp., 217 P.3d 149 (Okla. Civ. App. 2008).

254 	284 NEBRASKA REPORTS
no technical knowledge, then expert medical testimony is not
essential for those elements of proof.16 In such a case, the
locality rule does not apply. But Green does not argue that the
common knowledge exception applies. Certainly, the conflict
between the opinions of Black and the Hospital—to the extent
that they could be considered for a standard of care within
common knowledge—would preclude the determination that
Green was entitled to judgment as a matter of law.
The parties instead debate whether Black was qualified to
opine on the standard of care for Box Butte County or similar
communities. Thus, we will treat the issue of the hospital’s
negligence in this case as subject to the requirement that the
plaintiff produce expert testimony as to the standard of care in
accordance with the locality rule.
[7-9] In light of the above, we must consider whether Green,
as the plaintiff, established that there was no material fact as
to each and every element of his cause of action against the
Hospital and that he was therefore entitled to judgment as
a matter of law. A party makes a prima facie case that it is
entitled to summary judgment by offering sufficient evidence
that, assuming the evidence went uncontested at trial, would
entitle the party to a favorable verdict.17 After the moving party
makes a prima facie case for summary judgment, the burden
to produce contrary evidence showing the existence of a mate-
rial issue of fact shifts to the party opposing the motion.18 In
the absence of a prima facie showing by the movant that he or
she is entitled to summary judgment, the opposing party is not
required to reveal evidence which he or she expects to produce
at trial.19
[10] The Hospital asserts that Green failed to make a prima
facie case for summary judgment because Green failed to
16 See, Thone v. Regional West Med. Ctr., supra note 15; Keys v. Guthmann,
267 Neb. 649, 676 N.W.2d 354 (2004); Walls v. Shreck, 265 Neb. 683, 658
N.W.2d 686 (2003). See, also, Krenek v. St. Anthony Hosp., supra note 15.
17 Thone v. Regional West Med. Ctr., supra note 15.
18 See, In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012);
Schafersman v. Agland Coop, 268 Neb. 138, 681 N.W.2d 47 (2004).
19 See Rush v. Wilder, 263 Neb. 910, 644 N.W.2d 151 (2002).

GREEN v. BOX BUTTE GENERAL HOSP. 	255
Cite as 284 Neb. 243
present proof that the Hospital had breached the standard of
care of hospitals generally in the community where the hos-
pital is located or in similar communities. We agree. Hospital
policies and rules do not conclusively determine the standard
of care owed.20 And those policies and procedures were not,
in any event, entered into evidence at the summary judg-
ment hearing. Hoff’s testimony was insufficient to establish
that Green was entitled to judgment as a matter of law.
Pryor’s testimony that she knows nothing about this case,
the Hospital’s policies, or the use of mechanical lifts is of no
consequence. And while the testimonies of Green and Arnold
and the Hospital’s answers to Green’s request for admissions
arguably make a prima facie case that the fall caused some
injury, the only evidence purporting to show that the Hospital
breached the standard of care in connection with the fall is the
affidavit of Black.
[11,12] Affidavits filed on behalf of the parties moving
for summary judgment are to be strictly construed.21 The
absence of counter-affidavits does not relieve a moving party
plaintiff from the burden of establishing the evidentiary facts
of every element necessary to entitle the plaintiff to sum-
mary judgment.22
[13] Under Neb. Rev. Stat. § 25-1334 (Reissue 2008), sup-
porting affidavits in summary judgment proceedings shall be
made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein.23 Black failed to affirmatively demonstrate that she was
competent to testify as to the standard of care of hospitals in
Box Butte County or similar communities. While Black attached
her curriculum vitae to her affidavit, the degrees, experiences,
and other accomplishments listed therein do not necessarily
demonstrate knowledge of the relevant community standard for
20 See, Simon v. Omaha P. P. Dist., 189 Neb. 183, 202 N.W.2d 157 (1972);
Darling v. Charleston Hospital, 33 Ill. 2d 326, 211 N.E.2d 253 (1965).
21 See House v. Lala, 180 Cal. App. 2d 412, 4 Cal. Rptr. 366 (1960).
22 Id.
23 See, also, e.g., Chism v. Campbell, 250 Neb. 921, 553 N.W.2d 741 (1996).

256 	284 NEBRASKA REPORTS
Box Butte County.24 And Black at no point averred in her affida-
vit that she was familiar with the standard of care for hospitals
in Box Butte County or in similar communities.
If Black was not familiar with the standard of care of Box
Butte County or similar communities, then she was unqualified
to conclude that the Hospital had breached “the standard of
care” and that conclusion—insofar as we can construe it as the
standard of care of the same community or similar communi-
ties—must be disregarded. Without expert testimony of the
standard of care of hospitals in the same community or similar
communities, Green would not be entitled to a favorable ver-
dict at trial. Thus, Green failed to make a prima facie case that
he was entitled to summary judgment.
We need not determine the weight to be given the Hospital’s
averments in its answers to Green’s request for admissions that
it did not violate the standard of care—for which the Hospital,
as the nonmoving party, is granted all reasonable inferences.
But we note that there is evidence preserved in the bill of
exceptions in connection with the motion for summary judg-
ment which controverts whether the Hospital breached the
applicable standard of care.
[14-16] Moreover, while the identification of the applicable
standard of care is a question of law, the ultimate determination
of whether a party deviated from the standard of care and was
therefore negligent is a question of fact.25 It is for the finder of
fact to resolve what conduct the standard of care would require
under the particular circumstances presented by the evidence
and whether the conduct of the alleged tort-feasor conformed
with that standard.26 And the trier of fact is not bound to accept
expert opinion testimony.27
[17-19] Summary judgment should not be used to deprive a
litigant of a formal trial if there is a genuine issue of fact.28 The
24 Compare Medley v. Davis, 247 Neb. 611, 529 N.W.2d 58 (1995).
25 Murray v. UNMC Physicians, supra note 11.
26 See id.
27 See Jones v. Meyer, 256 Neb. 947, 594 N.W.2d 610 (1999). See, also,
Wilson v. Muhanna, 213 Ga. App. 704, 445 S.E.2d 540 (1994).
28 Medley v. Davis, supra note 24.

STATE EX REL. BRUNING v. GALE 	257
Cite as 284 Neb. 257
purpose of summary judgment is not to cut litigants off from
their right of trial by jury if they really have issues to try.29 A
motion for summary judgment is not a substitute for a motion
for a directed verdict or for error proceedings taken after a full
trial.30 When viewing the evidence presented at the summary
judgment hearing in a light most favorable to the nonmoving
party, in this case the defendant, the plaintiff-movant failed to
establish each element of his cause of action as a matter of law.
Therefore, the district court erred in granting partial judgment.
Because we reverse the partial summary judgment in favor of
Green and remand the cause for a new trial which will include
the issues of negligence and liability, we need not address the
parties’ remaining assignments of error concerning damages
and costs.
VI. CONCLUSION
For the foregoing reasons, we reverse the judgment below
and remand the cause for a new trial.
reverSed And remAnded.
WriGht, J., not participating in the decision.
29 Ingersoll v. Montgomery Ward & Co., Inc., 171 Neb. 297, 106 N.W.2d 197
(1960).
30 Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244 (1952).
StAte of neBrASkA ex rel. Jon BruninG, Attorney
G enerAl of the StAte of neBrASkA, relAtor, v.
John A. GAle, SecretAry of StAte of the
StAte of neBrASkA, reSpondent.
817 N.W.2d 768
Filed August 3, 2012. 	No. S-11-933.
1. Constitutional Law: Statutes. Whether a statute is constitutional is a question
of law.
2. ____: ____. The general rule is that when part of an act is held unconstitutional,
the remainder must likewise fail, unless the unconstitutional portion is severable
from the remaining portions.
3. Constitutional Law: Statutes: Proof. Laws that burden political speech are
subject to strict scrutiny, which requires the government to prove that the