A.W. v. Lancaster Cty. Sch. Dist. 0001

A.W., mother And next friend of C.B., And A.W.,
AppellAnts , v. lAnCAster C ounty sChool
distriCt 0001, Also knoWn As linColn
puBliC sChools , Appellee .
784 N.W.2d 907
Filed July 16, 2010. 	No. S-09-485.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible 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. ____. The question whether a legal duty exists for actionable negligence is a
question of law dependent on the facts in a particular situation.
6. ____. 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 par-
ticular 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. ____. 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. ____. 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.
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	205
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

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.
Appeal from the district court for lancaster county: pAul
d. merritt, Jr ., Judge. reversed and remanded for further
proceedings.
Vincent M. Powers, of Vincent M. Powers & Associates, for
appellants.
John M. Guthery and derek A. Aldridge, of Perry, Guthery,
haase & Gessford, P.c., l.l.O., for appellee.
heAviCAn, C.J., Wright, C onnolly, gerrArd, mCC ormACk ,
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, alleg-
ing 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 par-
ties, 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.
206 	280 NeBrASkA rePOrTS

BAckGrOuNd
A ssAult 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 inform-
ing 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 there-
after 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 any-
thing, 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
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	207
cite as 280 Neb. 205

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 caf-
eteria 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 encoun-
tered 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 pro-
cedures had been put in place in compliance with lPS “Policy
6411” and “regulation 6411.1,” which required the establish-
ment 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.
208 	280 NeBrASkA rePOrTS

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 evi-
dence of the events described above, Mulvaney’s opinion that
her actions were reasonable, and the opinion of lPS’ director
of security that the lPS and Arnold elementary School emer-
gency procedures were adequate. In response, A.W. adduced
evidence of incidents near Arnold elementary School that had
been reported to the lincoln Police department between 2001
and 2005, although most of those incidents involved nonviolent
crimes and took place outside of school hours.
The district court entered summary judgment for lPS. The
court found that Siems’ assault of c.B. was not foreseeable and
that the police incident reports provided by A.W. were insuf-
ficiently similar to Siems’ actions to place lPS on notice of the
possibility of a sexual assault by an intruder. The court found
that lPS had made a prima facie showing that its security plan
was adequate and that A.W. had not rebutted that evidence.
And the court found that even if the safety and security plan
in effect was inadequate, it was exempt from the Political
Subdivisions Tort claims Act as a discretionary function.2
A.W. appeals.
1 See Neb. rev. Stat. § 13-901 et seq. (reissue 2007 & Supp. 2009).
2 See § 13-910(2).
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	209
cite as 280 Neb. 205

ASSIGNMeNTS OF errOr
A.W. assigns, consolidated and restated, that the district
court erred in finding that (1) lPS did not owe a duty to protect
c.B. from the danger of sexual assault by Siems, (2) the sexual
assault of c.B. was not reasonably foreseeable, (3) lPS took
reasonable steps to protect against foreseeable acts of violence
on its premises, (4) Arnold elementary School had a safety and
security plan in effect at the time of the assault which com-
plied with pertinent state law, and (5) the school’s safety plan
was discretionary.
STANdArd OF reVIeW
[1,2] 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.3 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.4
ANAlySIS
foreseeABility And duty under
restAtement (third) of torts
[3-6] 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.5 The duty in a
negligence case is to conform to the legal standard of reason-
able conduct in the light of the apparent risk.6 The question
whether a legal duty exists for actionable negligence is a ques-
tion of law dependent on the facts in a particular situation.7
But it is for the fact finder to determine, on the facts of each
3 Erickson v. U-Haul Internat., 278 Neb. 18, 767 N.W.2d 765 (2009).
4 Id.
5 See Ehlers v. State, 276 Neb. 605, 756 N.W.2d 152 (2008).
6 Doe v. Gunny’s Ltd. Partnership, 256 Neb. 653, 593 N.W.2d 284 (1999).
7 Id.
210 	280 NeBrASkA rePOrTS

individual case, whether or not the evidence establishes a
breach of that duty.8
A.W. first argues that lPS had a duty to protect c.B. from
the danger of sexual assault, that the sexual assault of c.B. was
reasonably foreseeable, and that lPS’ response was inadequate
to that foreseeable danger. In support of this argument, A.W.
relies on the risk-utility test that we have used to determine the
existence of a tort duty.9 under that test, we have considered
(1) the magnitude of the risk, (2) the relationship of the par-
ties, (3) the nature of the attendant risk, (4) the opportunity and
ability to exercise care, (5) the foreseeability of the harm, and
(6) the policy interest in the proposed solution.10
But lPS does not dispute that it would owe c.B. a duty to
protect him against any reasonably foreseeable acts of vio-
lence on its premises.11 So A.W.’s first three arguments are
really three different ways of framing the same question: Was
Siems’ assault of c.B. reasonably foreseeable? A.W.’s argu-
ments with respect to foreseeability boil down to two primary
contentions: first, that the lPS employees who saw Siems on
the day of the assault should have foreseen the danger that
he represented and, second, that the neighborhood in which
Arnold elementary School is located was sufficiently danger-
ous to place lPS on notice of a danger that a student could be
sexually assaulted.
In previous cases, because the existence of a legal duty is
a question of law, we have also treated the foreseeability of a
particular injury as a question of law.12 This places us in the
peculiar position, however, of deciding questions, as a matter
of law, that are uniquely rooted in the facts and circumstances
of a particular case and in the reasonability of the defendant’s
response to those facts and circumstances.
8 See Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).
9 See, e.g., Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d
793 (2007).
10 See id.
11 See, e.g., Sharkey v. Board of Regents, 260 Neb. 166, 615 N.W.2d 889
(2000).
12 See Knoll v. Board of Regents, 258 Neb. 1, 601 N.W.2d 757 (1999).
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	211
cite as 280 Neb. 205

For that reason, the use of foreseeability as a determinant
of duty has been criticized, most pertinently in the recently
adopted restatement (Third) of Torts.13 The restatement (Third)
explains that because the extent of foreseeable risk depends on
the specific facts of the case, courts should leave such determi-
nations to the trier of fact unless no reasonable person could
differ on the matter.14 Indeed, foreseeability determinations
are particularly fact dependent and case specific, representing
“a [factual] judgment about a course of events . . . that one
often makes outside any legal context.”15 So, by incorporating
foreseeability into the analysis of duty, a court transforms a
factual question into a legal issue and expands the authority of
judges at the expense of juries or triers of fact.16
That is especially peculiar because decisions of foreseeability
are not particularly “legal,” in the sense that they do not
require special training, expertise, or instruction, nor do they
require considering far-reaching policy concerns.17 rather,
deciding what is reasonably foreseeable involves common
sense, common experience, and application of the standards
and behavioral norms of the community—matters that have
long been understood to be uniquely the province of the finder
of fact.18
[7] In addition, we have defined a “duty” as an obligation,
to which the law gives recognition and effect, to conform to
a particular standard of conduct toward another.19 duty rules
are meant to serve as broadly applicable guidelines for public
13 restatement (Third) of Torts: liability for Physical and emotional harm
(2010).
14 Id., § 7, comment j.
15 See, Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 4, 734 P.2d 1326,
1327-28 (1987); W. Jonathan cardi, Purging Foreseeability: The New
Vision of Duty and Judicial Power in the Proposed Restatement (Third) of
Torts, 58 Vand. l. rev. 739 (2005).
16 See Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (2007).
17 See cardi, supra note 15.
18 See, Gipson, supra note 16; cardi, supra note 15.
19 See Schmidt v. Omaha Pub. Power Dist., 245 Neb. 776, 515 N.W.2d 756
(1994).
212 	280 NeBrASkA rePOrTS

behavior, i.e., rules of law applicable to a category of cases.20
But foreseeability determinations are fact specific, so they are
not categorically applicable, and are incapable of serving as
useful behavioral guides.21 And, as the Arizona Supreme court
explained, “[r]eliance by courts on notions of ‘foreseeability’
also may obscure the factors that actually guide courts in recog-
nizing duties for purposes of negligence liability.”22
[8,9] Instead, as the restatement (Third) explains, an actor
ordinarily has a duty to exercise reasonable care when the
actor’s conduct creates a risk of physical harm.23 But, in excep-
tional 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.24 A no-duty determination, then, is grounded in
public policy and based upon legislative facts, not adjudicative
facts arising out of the particular circumstances of the case.25
And such ruling should be explained and justified based on
articulated policies or principles that justify exempting these
actors from liability or modifying the ordinary duty of reason-
able care.26
For 	example, 	the 	Iowa 	Supreme 	court 	adopted 	the
restatement (Third) in Thompson v. Kaczinski27 and, in Van
Fossen v. MidAmerican Energy Co.,28 applied it to limit the
duty owed by an employer of an independent contractor to a
member of the household of an employee of the independent
contractor. The court explained that foreseeability of the harm
20 See cardi, supra note 15.
21 Id.
22 Gipson, supra note 16, 214 Ariz. at 144, 150 P.3d at 231, citing cardi,
supra note 15; restatement (Third) of Torts, supra note 13, § 7.
23 restatement (Third) of Torts, supra note 13, § 7(a).
24 Id., § 7(b).
25 See id., § 7, comment b.
26 See id., comment j. See, also, Gipson, supra note 16.
27 Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009).
28 Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689 (Iowa 2009).
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	213
cite as 280 Neb. 205

was not part of the analysis, but that an exception to the general
duty of reasonable care was warranted, as a matter of policy,
based upon an independent contractor’s control of the premises
where the work was to be performed and the difficulty inher-
ent in requiring an employer to supervise each aspect of an
independent contractor’s often specialized work.29 We reached
a similar conclusion in Parrish v. Omaha Pub. Power Dist.,30 in
which we—interestingly—discussed and determined the legal
duties of a landowner and general contractor to a subcon-
tractor based upon the same considerations, without relying
upon foreseeability.
But in other cases, our law has not been so clear. As noted
above, we have stated that as a general proposition, in negli-
gence cases, the duty is always the same—to conform to the
legal standard of reasonable conduct in light of the apparent
risk.31 That uncontroversial proposition coexists uneasily with
the risk-utility principles set forth above, which did not always
include foreseeability and were at first expressly intended to
evaluate the duty owed by a landlord to a tenant.32 Only later
did we graft foreseeability onto the rubric33 and apply it gener-
ally beyond the context of premises liability.34
The ensuing complications are illustrated by our reason-
ing in Sharkey v. Board of Regents,35 in which we relied upon
foreseeability in determining a university’s legal duty to protect
students on its campus from criminal activity. Although invok-
ing our risk-utility test, our decision was grounded entirely in
foreseeability. And we reasoned, in the end, that because the
evidence showed that violent altercations were not unknown
29 See id.
30 Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902
(1993).
31 See, e.g., Moglia v. McNeil Co., 270 Neb. 241, 700 N.W.2d 608 (2005);
Parrish, supra note 30.
32 See C.S. v. Sophir, 220 Neb. 51, 368 N.W.2d 444 (1985).
33 See Schmidt, supra note 19.
34 See Popple v. Rose, 254 Neb. 1, 573 N.W.2d 765 (1998).
35 Sharkey, supra note 11.
214 	280 NeBrASkA rePOrTS

at the location on campus where the plaintiff was attacked, the
attack was foreseeable; thus, we held that the university owed a
duty “to its students to take reasonable steps to protect against
foreseeable acts of violence on its campus and the harm that
naturally flows therefrom.”36
In other words, we reasoned that because the attack at issue
in that case was foreseeable, the defendant had a duty to pro-
tect against foreseeable acts of violence. Our reasoning was
tautological. It is evident that the university had a landowner-
invitee duty to protect against foreseeable acts even had the
attack in that case not been foreseeable. While we purported
to be discussing duty, we were in fact assuming the conclusion
we claimed to be proving, and we were actually evaluating the
sufficiency of the evidence to sustain a conclusion that the uni-
versity had breached its duty to take reasonable care.
[10,11] Our mistake was a common one. As the restatement
notes, in a number of cases, courts have rendered judgments
under the rubric of duty that are better understood as appli-
cations of the negligence standard to a particular category
of recurring facts.37 But the restatement disapproves that
practice and limits the determination of duty to articulated
policy or principle, in order to facilitate more transparent
explanations of the reasons for a no-duty ruling and to protect
the traditional function of the jury as a fact finder.38 Simply
put, 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.39 As the Wisconsin Supreme court explained,
in a negligence case, a defendant’s conduct should be exam-
ined “‘“not . . . in terms of whether . . . there is a duty to
[perform] a specific act, but rather whether the conduct satis-
fied the duty placed upon individuals to exercise that degree
36 Id. at 182, 615 N.W.2d at 902.
37 restatement (Third) of Torts, supra note 13, comment i.
38 Id., comment j. Accord Thompson, supra note 27.
39 See, Thompson, supra note 27; Behrendt v. Gulf Underwriters Ins. Co.,
318 Wis. 2d 622, 768 N.W.2d 568 (2009); Gipson, supra note 16.
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	215
cite as 280 Neb. 205

of care as would be exercised by a reasonable person under
the circumstances.”’”40
[12] To summarize: under the restatement (Third), foresee-
able 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. The extent of fore-
seeable risk depends on the specific facts of the case and can-
not be usefully assessed for a category of cases; small changes
in the facts may make a dramatic change in how much risk is
foreseeable. Thus, courts should leave such determinations to
the trier of fact unless no reasonable person could differ on the
matter.41 And if the court takes the question of negligence away
from the trier of fact because reasonable minds could not differ
about whether an actor exercised reasonable care (for example,
because the injury was not reasonably foreseeable), then the
court’s decision merely reflects the one-sidedness of the facts
bearing on negligence and should not be misrepresented or
misunderstood as involving exemption from the ordinary duty
of reasonable care.42
We find the reasoning of the restatement (Third), and
our fellow courts that have endorsed it, to be persuasive.43
The circumstances of this case illustrate how incorporating
foreseeability into a duty analysis can confuse the issues. here,
it is not disputed that lPS owed c.B. a duty of reasonable
care. The duty of instructors to supervise and protect students
is well established under the restatement (Second) of Torts,44
the restatement (Third) of Torts,45 and our current case law.46
Instead, the question is whether Siems’ assault of c.B. was
40 See Behrendt, supra note 39, 318 Wis. 2d at 634, 768 N.W.2d at 574.
41 restatement (Third) of Torts, supra note 13, comment j.
42 See id., comment i.
43 See, Thompson, supra note 27; Behrendt, supra note 39; Gipson, supra
note 16.
44 See restatement (Second) of Torts §§ 314A and 320, comment b. (1965).
45 See restatement (Third) of Torts, supra note 13, § 40(b)(5) (Proposed
Final draft No. 1, 2005).
46 See, e.g., Fu v. State, 263 Neb. 848, 643 N.W.2d 659 (2002).
216 	280 NeBrASkA rePOrTS

reasonably foreseeable. That determination involves a fact-
specific inquiry into the circumstances that might have placed
lPS on notice of the possibility of the assault. Stated another
way, it requires us to ask what lPS employees knew, when they
knew it, and whether a reasonable person would infer from
those facts that there was a danger. Those are factual inquiries
that should not be reframed as questions of law.
under the restatement view, the basic analysis remains
the same. The factual question is the same. But, it is properly
reframed as a question of fact. lPS owed c.B. a duty of rea-
sonable care. did lPS, under the facts and circumstances of the
case, conduct itself reasonably? Or, more precisely, was Siems’
assault of c.B. reasonably foreseeable, such that lPS’ duty of
reasonable care required it to act to forestall that risk? Such
an approach properly recognizes the role of the trier of fact
and requires courts to clearly articulate the reasons, other than
foreseeability, that might support duty or no-duty determina-
tions.47 And it correctly examines the defendant’s conduct, not
in terms of whether it had a “duty” to take particular actions,
but instead in terms of whether its conduct breached its duty
to exercise the care that would be exercised by a reasonable
person under the circumstances.48
We do not view our endorsement of the restatement (Third)
as a fundamental change in our law. It is better understood as
rearranging the basic questions that are posed by any negli-
gence case and making sure that each question has been put
in its proper place. But it does not change those questions. To
say, as we have in the past, that a defendant had no duty, under
particular circumstances, to foresee a particular harm is really
no different from saying that the defendant’s duty to take rea-
sonable care was not breached, under those circumstances, by
its failure to foresee the unforeseeable.
[13] But placing foreseeability in the context of breach,
rather than duty, properly charges the trier of fact with deter-
mining whether a particular harm was, on the facts of the case,
reasonably foreseeable—although the court reserves the right
47 See Gipson, supra note 16.
48 See Behrendt, supra note 39.
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cite as 280 Neb. 205

to determine that the defendant did not breach its duty of rea-
sonable care, as a matter of law, where reasonable people could
not disagree about the unforeseeability of the injury. We have
often said that “‘“‘[t]he risk reasonably to be perceived defines
the duty to be obeyed[,]’”’”49 but that proposition should now
be understood as explaining how foreseeability helps define
what conduct the standard of care requires under the circum-
stances and whether the conduct of the alleged tort-feasor
conforms to that standard. These are determinations reserved
for the finder of fact.50 And the factors of our risk-utility test,
which we have employed to determine the existence of a duty,
are better applied as possible considerations in determining
whether an actor’s conduct was negligent.51 As the restatement
(Third) explains:
A person acts negligently if the person does not exer-
cise reasonable care under all the circumstances. Primary
factors to consider in ascertaining whether the person’s
conduct lacks reasonable care are the foreseeable likeli-
hood that the person’s conduct will result in harm, the
foreseeable severity of any harm that may ensue, and
the burden of precautions to eliminate or reduce the risk
of harm.52
[14] For the foregoing reasons, we find the clarification of
the duty analysis contained in the restatement (Third) of Torts,
§ 7, to be compelling, and we adopt it.53 We expressly hold that
foreseeability is not a factor to be considered by courts when
making determinations of duty.54
foreseeABility in present CAse
We apply restatement (Third) principles to our analysis
of this case, to provide the parties and the district court with
49 e.g. Knoll, supra note 12, 258 Neb. at 7, 601 N.W.2d at 763.
50 See Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009).
51 See, e.g., Heins, supra note 8.
52 restatement (Third) of Torts, supra note 13, § 3 at 29.
53 See Thompson, supra note 27.
54 See Gipson, supra note 16. See, also, Thompson, supra note 27; Behrendt,
supra note 39.
218 	280 NeBrASkA rePOrTS

clearer guidance of how the case should proceed on remand,
and to establish restatement (Third) precedent to guide other
cases. We note, however, that our disposition of this appeal
would have been the same regardless.
As noted above, A.W. argues that lPS had a duty to protect
c.B. from the danger of sexual assault, that the sexual assault
of c.B. was reasonably foreseeable, and that lPS’ response
was inadequate to that foreseeable danger. Primarily, A.W.
contends that the neighborhood in which Arnold elementary
School is located was sufficiently dangerous to place lPS on
notice of a danger that a student could be sexually assaulted
and that the lPS employees who saw Siems on the day of the
assault should have foreseen the danger that he represented.
And, as we also noted above, lPS’ relationship with c.B.
was such that lPS owed a duty of reasonable care with regard
to risks that arose within the scope of that relationship. There
is no argument in this case that there is any countervailing
principle or policy warranting a modification of that duty in
this class of cases. So, the parties’ foreseeability arguments are
properly framed as disputing whether, considering the foresee-
able likelihood of harm, lPS exercised reasonable care under
all the circumstances.55 If, in light of all the facts relating to
lPS’ conduct, reasonable minds could differ as to whether the
conduct lacked reasonable care, it is the function of the finder
of fact to make that determination, and summary judgment
was improper.56 And it bears repeating that in an appeal from
a summary judgment, we view the evidence in the light most
favorable to the nonmoving party, A.W.57
Nonetheless, to begin with, we are not persuaded by A.W.’s
evidence of criminal behavior in the area of the school.
evidence of prior criminal activity is a necessary component
in the totality of the circumstances which must be considered
in determining foreseeability.58 Several instances of similar
55 See restatement (Third) of Torts, supra note 13, § 3.
56 See id., § 8(b).
57 See Erickson, supra note 3.
58 See Doe, supra note 6.
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	219
cite as 280 Neb. 205

criminal activity in a fairly contiguous area during a limited
timespan may make other such incidents foreseeable, implicat-
ing a responsible party’s duty to take reasonable care.
But the only evidence A.W. presents in this regard is a call
log from the lincoln Police department for a three-block area
near Arnold elementary School during 2001 to 2005. There
were a great many calls for police assistance made in the
year before c.B. was assaulted, including incidents of vandal-
ism, an assault, and a report of a suspicious person at Arnold
elementary School. And other, more sexually related crimes
were reported in the neighborhood. But few of those incidents
took place during the school day. And there was nothing that
should have suggested to lPS that a sexual assault was likely
in the school building.
The evidence in this case is far different from that presented
in other cases, in which we have found a basis for determining
that criminal activity was foreseeable. This is not, for instance,
a case such as Doe v. Gunny’s Ltd. Partnership,59 in which the
plaintiff had been sexually assaulted in a parking garage, and in
which there was evidence of crimes reported in the same build-
ing or one of the businesses located in the building. This was
not a case in which a substantial number of similar incidents
had occurred on the premises.60 Nor is this a case in which the
defendant had been on notice of the behavior of a particular
assailant.61 In short, there was not sufficient evidence of prior
criminal activity to necessarily make the intrusion of a sexual
predator at this particular elementary school foreseeable. In
order to make a risk of attack foreseeable, the circumstances
59 Doe, supra note 6. See, also, Erichsen v. No-Frills Supermarkets, 246 Neb.
238, 518 N.W.2d 116 (1994).
60 See, Knoll, supra note 12 (fraternity hazing); Sacco v. Carothers, 257 Neb.
672, 601 N.W.2d 493 (1999) (bar fight); Hulett v. Ranch Bowl of Omaha,
251 Neb. 189, 556 N.W.2d 23 (1996) (bar fight), overruled, Knoll, supra
note 12.
61 See, e.g., Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447
(2007); Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 248 Neb.
651, 538 N.W.2d 732 (1995); S.I. v. Cutler, 246 Neb. 739, 523 N.W.2d 242
(1994).
220 	280 NeBrASkA rePOrTS

to be considered must have a direct relationship to the harm
incurred,62 and that relationship is lacking here.
After Siems entered the building, however, reasonable minds
could differ as to whether lPS’ initial failure to note his pres-
ence, and response to his presence, satisfied its duty of reason-
able care. The sequence of events presented by the evidence
is essentially undisputed. Siems was spotted by a number of
lPS employees, more than one of whom observed that Siems
seemed out of place. While each of them responded to the
threat that they recognized Siems represented, none of them
effectively made sure that Siems did not make contact with a
student. Specifically, they did not keep track of Siems’ loca-
tion and permitted him to evade them. Nor did they prevent
c.B. from entering the restroom, alone, while Siems’ where-
abouts were unknown. And reasonable minds could differ as
to whether Siems’ assault of c.B. was a foreseeable result of
those failures. These facts, taken in the light most favorable to
A.W.,63 establish a genuine issue of material fact as to whether
lPS breached the duty of reasonable care it owed c.B. For
that reason, A.W.’s first three assignments of error have merit
and A.W. is entitled to a full trial to resolve these respec-
tive issues.
sAfety And seCurity proCedures
Because we are remanding this cause for further proceed-
ings, we will address one aspect of A.W.’s fourth assignment of
error. In support of her fourth assignment of error, A.W. argues
that the safety and security plan in place at the time of the
assault did not comply with relevant state law. under regula-
tions promulgated by the Nebraska department of education,
each school system is required to have “a safety and security
plan for the schools in the system. The plan addresses the
safety and security of students, staff, and visitors.”64 And that
62 Gans v. Parkview Plaza Partnership, 253 Neb. 373, 571 N.W.2d 261
(1997), overruled, Knoll, supra note 12.
63 See Erickson, supra note 3.
64 92 Neb. Admin. code, ch. 10, § 011.01B (2004).
A.W. v. lANcASTer cTy. Sch. dIST. 0001 	221
cite as 280 Neb. 205

plan is to be reviewed annually by a school safety and security
committee and by outside parties.65
A.W. argues that the plan in place for lPS and Arnold
elementary School did not satisfy this regulation. But to begin
with, it is not clear precisely how this argument helps estab-
lish A.W.’s claim for relief. A statute, for instance, may give
rise to a tort duty to act in the manner required by the statute
where the statute is enacted to protect a class of persons which
includes the plaintiff, the statute is intended to prevent the par-
ticular injury that has been suffered, and the statute is intended
by the legislature to create a private liability as distinguished
from one of a public character.66 Although we have suggested
that a regulation may be relevant as evidence of the standard of
care,67 we have never held that an administrative regulation can
similarly expand the scope of tort liability beyond the general
duty to exercise reasonable care.
In this case, the regulations at issue are promulgated as
accreditation standards, not standards for tort liability,68 and
contain no explicit qualitative requirements. They plainly do
not give rise to a tort duty beyond the duty of reasonable care
that was discussed above. They could, however, serve as rel-
evant evidence of the standard of care and whether the standard
of care was breached. But at this juncture, it is neither neces-
sary nor proper to determine in this appeal whether these stat-
utes and regulations would be admissible evidence at trial. The
admissibility will be determined by the context in which such
evidence is offered (if offered) at trial.
cONcluSION
Therefore, we find no merit to A.W.’s narrow argument that
for purposes of the court’s duty analysis, Arnold elementary
School’s safety and security policy was legally inadequate.
65 Id., § 011.01c.
66 See Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001).
67 See Orduna v. Total Constr. Servs., 271 Neb. 557, 713 N.W.2d 471
(2006).
68 See 92 Neb. Admin. code, ch. 10, § 001 (2004).
222 	280 NeBrASkA rePOrTS

But we do find a genuine issue of material fact with respect to
A.W.’s allegation that lPS breached its duty of reasonable care
to c.B. Specifically, we hold that pursuant to the principles
articulated in the restatement (Third) of Torts, foreseeability
is not part of the duty analysis performed by the court, but
is part of the breach analysis performed by the finder of fact.
And while the evidence of prior criminal activity in the neigh-
borhood of Arnold elementary School was not sufficient to
support a conclusion that a sexual assault on the premises was
reasonably foreseeable, there was sufficient evidence for rea-
sonable minds to differ as to whether Siems’ assault of c.B.
was a foreseeable consequence of lPS’ failure to initially note
Siems’ entry into the school or to carefully monitor Siems,
and c.B., after it was determined that Siems had entered
the school.
Therefore, we reverse the district court’s summary judgment
and remand the cause for further proceedings with respect to
lPS’ allegedly negligent conduct after Siems entered Arnold
elementary School.
reversed And remAnded for
further proCeedings.
stephAn, J., not participating.
STATe ex rel. WAGNer v. GIlBANe BldG. cO. 	223
cite as 280 Neb. 223
stAte of neBrAskA ex rel . l. tim WAgner , direCtor of
insurAnCe of the stAte of neBrAskA, As liquidAtor
of A mWest surety insurAnCe C ompAny, Appellee ,
v. gilBAne Building C ompAny, A rhode islAnd
CorporAtion, AppellAnt.
786 N.W.2d 330
Filed July 16, 2010. 	No. S-09-879.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible 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, the
court views the evidence in the light most favorable to the party against whom the
judgment was granted, and the court gives that party the benefit of all reasonable
inferences deducible from the evidence.