Ehlers v. State

of whether the opinion may, or may not, have some marginal
precedential value in the future.
In short, the county attorney’s application does not present
us with an opportunity to provide an authoritative exposition of
the law that would be sufficiently useful as precedent. Because
the scope of our review is limited to providing such an exposi-
tion, we dismiss this appeal.
A ppeAl dismissed .
mArilynn ehlers , AppellAnt , v .
stAte of nebrAskA, Appellee .
756 N.W.2d 152
Filed September 26, 2008. 	No. S-07-732.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing 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: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment was granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Tort Claims Act: Proof. In order to recover in a negligence action brought pur-
suant to the State Tort Claims Act, 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 of reasonable care generally does not extend to third parties
absent other facts establishing a duty.
5. ____. There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless (1) 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 or (2) a special relation exists between the
actor and the other which gives to the other a right to protection.
6. ____. One who takes charge of a third person whom he knows or should know
to be 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 harm.
Appeal from the District Court for Adams County: terri s.
hArder, Judge. Affirmed.
Michael J. Elsken, of Nebraska Advocacy Services, Inc.,
for appellant.
EhlErS v . STATE 	605
Cite as 276 Neb. 605
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

Jon Bruning, Attorney General, and Michael J. rumbaugh
for appellee.
heAvicAn, 	C.J., 	W right, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller -lermAn, JJ.
W right, J.
NATUrE OF CASE
Marilynn Ehlers was a resident of the hastings regional
Center (hrC), which is operated by the Nebraska Department
of health and human Services. Ehlers was physically assaulted
by another resident and sustained injuries to her left hand and
right knee. She sued the State of Nebraska for negligence
pursuant to the State Tort Claims Act, see Neb. rev. Stat.
§§ 81-8,209 to 81-8,235 (reissue 2003, Cum. Supp. 2006 &
Supp. 2007). The Adams County District Court sustained the
State’s motion for summary judgment. Ehlers appeals, assert-
ing that the assault was foreseeable.
SCOPE OF rEVIEW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing 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. Gavin v. Rogers Tech. Servs., ante
p. 437, 755 N.W.2d 47 (2008).
[2] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment was granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence. Id.
FACTS
On March 30, 2003, Ehlers, who has limited mobility due
to polio, was a resident of hrC. She alleged that she was
standing by a counter at the nurses’ station when another
resident, “l.S.,” became agitated. l.S. stated, “‘Dan [an hrC
employee] is staring at me.’” l.S. then allegedly pushed Ehlers
to the floor and into a wall. Ehlers fractured her left hand and
injured her right knee.
606 	276 NEBrASkA rEPOrTS

Ehlers filed a claim with the State Claims Board, which dis-
allowed the claim. She then filed a complaint against the State,
alleging that the State and its employees had been warned about
the physically inappropriate actions of l.S. toward other hrC
residents, but that the State and its employees failed to take
reasonable actions to protect Ehlers. She alleged that the State
knew or should have known l.S. posed an imminent threat of
harm and that the State failed to protect Ehlers.
The State claimed immunity from suits arising out of assault
or battery and alleged that any damages suffered were the result
of the intervening criminal or negligent act of a third party. The
State moved for summary judgment.
At a hearing, the State offered into evidence three affidavits.
Carolyn Johnson worked as a psychiatric technician at hrC.
She was overseeing breakfast in the day hall on the day of the
incident. her description of the incident differs from that of
Ehlers, in that Johnson stated that Ehlers and l.S. were seated
across the table from each other when Johnson observed a
quick exchange of words between the two women. Johnson
could not hear what was said, but she reported that “[s]uddenly,
and without warning, l.S. got up and pushed [Ehlers] out of
her chair, knocking her against the wall behind her and to the
floor . . . .” Johnson said that she immediately restrained l.S.,
as she had been trained to do, and that l.S. was placed in
restraints and sent into seclusion.
Johnson stated that although l.S. had a history of “aggres-
sive, assaultive behavior,” she had been controlled and did
not appear to be upset or agitated that morning, and that l.S.
was entitled to have breakfast with the other patients. If l.S.
had exhibited upset or agitated behavior, she would have been
given breakfast away from the other patients. According to
Johnson, “[t]he suddenness of the push and lack of any fore-
warning made any prevention of the assault by l.S. on [Ehlers]
by hrC staff impossible.”
The facility operating officer at hrC submitted an affida-
vit accompanied by a copy of hrC policies regarding patient
restraint and seclusion that were in effect on the date of
the incident.
EhlErS v . STATE 	607
Cite as 276 Neb. 605

A psychologist at hrC reviewed the records of l.S. from
her admission on March 26, 2003, to the date of the assault,
March 30. The psychologist found no evidence of behavior that
would indicate imminent dangerousness which would warrant
the use of seclusion and/or restraints prior to the incident.
Ehlers offered her own affidavit, in which she stated that she
was committed to hrC by a mental health board. She stated
that the individuals working on her ward knew or should have
known that she had a history of polio and had limited mobil-
ity. Ehlers said that on the day of the incident, she entered the
common area at 7:55 a.m. In contrast to Johnson’s affidavit,
Ehlers stated that there was a counter at the nurses’ station
where coffee was provided and that l.S. was at the counter. At
the time, there were between four and eight residents sitting in
the day hall awaiting their breakfast trays.
Ehlers stated that Johnson was on duty with “Dan,” whose
last name is unknown. Dan ordinarily worked on another ward.
he was at the desk at the entrance of the day hall, about 10
to 12 feet from where l.S. was standing. Neither Johnson nor
Dan warned Ehlers about l.S.’ exhibiting any aggressive or
unusual behavior. While Ehlers was standing at the counter,
l.S. began to show signs of agitation and said, “‘Dan is star-
ing at me.’” Ehlers alleged that Dan should have heard the
comment and that Johnson may have heard it. The record does
not reflect that Dan was ever identified or asked to provide an
affidavit about the incident.
Ehlers said that staff failed to take action to redirect l.S.
after she became visibly agitated and that staff did not pro-
tect Ehlers. Ehlers said she did not hear l.S. being redirected
and was not herself directed away from l.S. When Ehlers
responded to l.S., she was physically assaulted by l.S. Again
in contrast to Johnson’s affidavit, Ehlers stated that Dan physi-
cally restrained l.S. immediately after the assault and that
Johnson went to Ehlers and told her not to move from where
she had fallen on the floor.
Ehlers claimed that Dan had an opportunity to prevent the
assault by intervention short of physical restraint or seclusion
and that hrC staff could have reasonably protected her from
assault by l.S., but failed to do so.
608 	276 NEBrASkA rEPOrTS

The district court sustained the State’s motion for summary
judgment, and Ehlers appeals.
ASSIGNMENT OF ErrOr
Ehlers argues that the district court erred in finding that
the evidence did not support her claim that the assault was
foreseeable.
ANAlYSIS
[3] In order to recover in a negligence action brought pur-
suant to the State Tort Claims Act, a plaintiff must show a
legal duty owed by the defendant to the plaintiff, a breach
of such duty, causation, and damages. Bartunek v. State, 266
Neb. 454, 666 N.W.2d 435 (2003). There is no dispute that the
State owed a duty to Ehlers, who was in the State’s custody.
The issue before us therefore is whether the State breached its
duty to protect Ehlers and should therefore be held liable for
her injuries.
[4] In the case at bar, the alleged negligence by the State was
the failure to control the actions of another hrC resident. The
duty of reasonable care generally does not extend to third par-
ties absent other facts establishing a duty. Erickson v. U-Haul
Internat., 274 Neb. 236, 738 N.W.2d 453 (2007). The common
law has traditionally imposed liability only if the defendant
bears some special relationship to the potential victim.
[5] This court has adopted restatement (Second) of Torts
§ 315 at 122 (1965), which provides:
There is no duty so to control the conduct of a third
person as to prevent him from causing physical harm to
another unless
(a) a special relation exists between the actor and the
third person which imposes a duty upon the actor to con-
trol the third person’s conduct, or
(b) a special relation exists between the actor and the
other which gives to the other a right to protection.
See Bartunek v. State, supra. See, also, Munstermann v. Alegent
Health, 271 Neb. 834, 716 N.W.2d 73 (2006).
[6] In Bartunek, we noted that the parameters of § 315(a) are
further defined by restatement (Second) of Torts § 319 at 129
(1965), which provides that “[o]ne who takes charge of a third
EhlErS v . STATE 	609
Cite as 276 Neb. 605

person whom he knows or should know to be likely to cause
bodily harm to others if not controlled is under a duty to exer-
cise reasonable care to control the third person to prevent him
from doing such harm.” We stated that the illustrations provided
in the restatement “make plain that the phrase ‘takes charge’ is
intended to refer to a custodial relationship.” Bartunek v. State,
266 Neb. at 462, 666 N.W.2d at 441.
At the time of her injuries, Ehlers was a resident of hrC, a
state-operated institution. In its answer, the State admitted that
Ehlers was in its custody at hrC. Thus, there is no dispute
that there was a custodial relationship. The State does not con-
test that, as the custodian of patients at hrC, it owed a duty
of ordinary care to protect patients and to prevent them from
assaulting each other. however, the State argues that the scope
of the State’s duty is limited to any risks that are foreseeable
and that it properly discharged its duty.
restatement (Second) of Torts § 320 at 130 (1965) provides:
One who is required by law to take or who voluntarily
takes the custody of another under circumstances such as
to deprive the other of his normal power of self-protection
or to subject him to association with persons likely to
harm him, is under a duty to exercise reasonable care so
to control the conduct of third persons as to prevent them
from intentionally harming the other or so conducting
themselves as to create an unreasonable risk of harm to
him, if the actor
(a) knows or has reason to know that he has the ability
to control the conduct of the third persons, and
(b) knows or should know of the necessity and oppor-
tunity for exercising such control.
In a comment to § 320, the restatement notes that the rule
applies to “officials in charge of a state asylum or hospital for
the criminally insane.” Id., comment a. at 130. Thus, State
employees at hrC have a duty to exercise reasonable care to
control the conduct of third parties to prevent them from harm-
ing another resident if the employees know or should know of
the need to exercise such control.
Ehlers alleged that she had limited mobility and was in
the custodial care of the State’s agents and employees. While
610 	276 NEBrASkA rEPOrTS

standing by a counter at the nurses’ station at hrC, l.S.,
another resident, allegedly began to show signs of agitation
and stated, “‘Dan is staring at me.’” l.S. then allegedly
pushed Ehlers to the floor and into a wall. Ehlers alleged that
the State’s employees had been warned about physically inap-
propriate actions taken toward hrC residents, but that the
employees allegedly failed to take reasonable actions to protect
Ehlers. She also alleged that the State’s agents and employees
knew or should have known that l.S. posed an imminent threat
of harm to Ehlers, but failed to act to protect her.
In reviewing a summary judgment, an appellate court views
the evidence in a light most favorable to the party against whom
the judgment was granted and gives such party the benefit of
all reasonable inferences deducible from the evidence. Gavin v.
Rogers Tech. Servs., ante p. 437, 755 N.W.2d 47 (2008). This
court must decide whether the evidence presented was suf-
ficient to establish a material issue of fact whether hrC staff
knew or should have known l.S. was agitated to the extent that
the State should have acted to protect Ehlers.
Viewed in the light most favorable to Ehlers and giving
her the benefit of all reasonable inferences deducible from
the evidence, we conclude that there is not a genuine issue of
material fact in dispute. The evidence is insufficient to show
that the State breached its duty to protect Ehlers from the
actions of l.S. The affidavit of Ehlers is not sufficient to estab-
lish that hrC staff knew or should have known that l.S. was
about to harm Ehlers and therefore should have immediately
taken action to protect Ehlers from l.S. The person referred
to as “Dan” in Ehlers’ affidavit is not identified by full name,
job title, training, or scope of responsibility. Without such
information, a trier of fact could not reasonably conclude that
“Dan,” as an employee of hrC, saw or heard something which
would have alerted him to the impending assault in time to
prevent it.
CONClUSION
Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue as to
any material fact or as to the ultimate inferences that may be
EhlErS v . STATE 	611
Cite as 276 Neb. 605

drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Id. Giving Ehlers the benefit
of all reasonable inferences deducible from the evidence, we
conclude no genuine issue of material fact exists whether the
State knew or should have known that l.S. was about to attack
Ehlers and therefore breached its duty to protect Ehlers. The
district court did not err in granting summary judgment, and its
decision is affirmed.
A ffirmed .
U pper big blUe nAtUrAl resoUrces district , A politicAl
sUbdivision of the stAte of nebrAskA, AppellAnt And
cross -Appellee , v . stAte of nebrAskA depArtment of
nAtUrAl resoUrces , An execUtive depArtment And
Agency of the stAte of nebrAskA, And A nn s. bleed ,
in her officiAl cApAcity As Acting director of
the depArtment of nAtUrAl resoUrces ,
Appellees And cross -AppellAnts .
U pper big blUe nAtUrAl resoUrces district , A politicAl
sUbdivision of the stAte of nebrAskA, AppellAnt And
cross -Appellee , v . stAte of nebrAskA depArtment of
nAtUrAl resoUrces , An execUtive depArtment And
Agency of the stAte of nebrAskA, And A nn s. bleed ,
in her officiAl cApAcity As Acting director of the
depArtment of nAtUrAl resoUrces , Appellees And
cross -AppellAnts , And little blUe nAtUrAl
resoUrces district , A politicAl sUbdivision
of the stAte of nebrAskA, Appellee .
756 N.W.2d 145
Filed September 26, 2008. 	Nos. S-07-905, S-07-906.
1. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law are
presented, in connection with which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the court below.
2. Administrative Law: Statutes. The legislature may delegate to an administra-
tive agency the power to make rules and regulations to implement the policy of
a statute.
612 	276 NEBrASkA rEPOrTS