Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/11/2017 12:09 AM CDT




                                                        -1-
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                   RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                                                Cite as 297 Neb. 1




                                A ngela Rodriguez and A dan Rodriguez,
                                Special A dministrators of the Estate of
                               Melissa Rodriguez, appellants, v. Catholic
                                  Health Initiatives, doing business as
                                     CHI Health, et al., appellees.
                                                   ___ N.W.2d ___

                                        Filed June 23, 2017.   No. S-15-1205.

                1.	 Motions to Dismiss: Appeal and Error. A district court’s grant of a
                    motion to dismiss is reviewed de novo.
                2.	 Pleadings: Appeal and Error. An appellate court reviews a district
                    court’s denial of a motion for leave to amend a complaint for an abuse
                    of discretion. However, an appellate court reviews de novo an underly-
                    ing legal conclusion that the proposed amendments would be futile.
                3.	 Motions to Dismiss: Appeal and Error. When reviewing an order dis-
                    missing a complaint, the appellate court accepts as true all facts which
                    are well pled and the proper and reasonable inferences of law and fact
                    which may be drawn therefrom, but not the plaintiff’s conclusions.
                4.	 Motions to Dismiss: Pleadings. To prevail against a motion to dis-
                    miss for failure to state a claim, a plaintiff must allege sufficient facts,
                    accepted as true, to state a claim to relief that is plausible on its face.
                    In cases in which a plaintiff does not or cannot allege specific facts
                    showing a necessary element, the factual allegations, taken as true, are
                    nonetheless plausible if they suggest the existence of the element and
                    raise a reasonable expectation that discovery will reveal evidence of the
                    element or claim.
                5.	 Actions: Pleadings: Notice. Civil actions are controlled by a liberal
                    pleading regime; a party is only required to set forth a short and plain
                    statement of the claim showing that the pleader is entitled to relief and
                    is not required to plead legal theories or cite appropriate statutes so long
                    as the pleading gives fair notice of the claims asserted.
                6.	 Actions: Pleadings. The rationale for a liberal notice pleading standard
                    in civil actions is that when a party has a valid claim, he or she should
                                     -2-
             Nebraska Supreme Court A dvance Sheets
                     297 Nebraska R eports
              RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                           Cite as 297 Neb. 1

      recover on it regardless of a failure to perceive the true basis of the
      claim at the pleading stage.
 7.	 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.
 8.	 Negligence. The question of whether a legal duty exists for actionable
      negligence is a question of law dependent on the facts in a particular
      situation.
  9.	 ____. The existence of a duty generally serves as a legal conclusion that
      an actor must exercise that degree of care as would be exercised by a
      reasonable person under the circumstances.
10.	 ____. Duty rules are meant to serve as broadly applicable guidelines for
      public behavior, i.e., rules of law applicable to a category of cases.
11.	 ____. Whether a duty exists is a policy decision.
12.	 Negligence: Mental Health. Under Neb. Rev. Stat. § 38-2137(2)
      (Reissue 2016), the duty to warn of or to take reasonable precautions
      to provide protection from violent behavior shall arise only under the
      limited circumstances specified in § 38-2137(1), and shall be discharged
      by the mental health practitioner if reasonable efforts are made to
      communicate the threat to the victim or victims and to a law enforce-
      ment agency.

   Appeal from the District Court for Douglas County:
James T. Gleason, Judge. Reversed and remanded for fur-
ther proceedings.
  Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for
appellants.
   Patrick G. Vipond, William R. Settles, and Cathy S. Trent-
Vilim, of Lamson, Dugan & Murray, L.L.P., for appellees
Catholic Health Initiatives, doing business as CHI Health,
et al.
  J. Scott Paul and Jay D. Koehn, of McGrath, North, Mullin
& Kratz, P.C., L.L.O., and, on brief, Elizabeth Bruening
Smith, for appellee The Noll Company.
  Joseph S. Daly and Mary M. Schott, of Sodoro, Daly,
Shomaker & Selde, P.C., L.L.O., for appellees UNMC
Physicians and Jane Doe Physician #1.
                             -3-
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

  Heavican, C.J., Miller-Lerman, Stacy, and K elch, JJ., and
Bishop, Judge.
  Miller-Lerman, J.
                      NATURE OF CASE
   After Melissa Rodriguez was killed by Mikael Loyd,
Melissa’s parents, Angela Rodriguez and Adan Rodriguez,
as the special administrators of Melissa’s estate (collectively
the appellants), brought this negligence and wrongful death
action in the district court for Douglas County. The appel-
lants filed their second amended complaint against numerous
defendants whom we treat as three groups. The first group
is collectively referred to as the “Lasting Hope defendants,”
composed of Catholic Health Initiatives, doing business as
CHI Health; Alegent Creighton Health, now known as CHI
Health Alegent Creighton Clinic; Lasting Hope Recovery
Center of Catholic Health Initiatives (Lasting Hope); “John
Doe #1,” an employee of Lasting Hope; “John Doe #2,” an
employee of Lasting Hope; three Noll entities (Noll Human
Resource Services, The Noll Company, and Noll, Inc.); and
“Jane Doe Nurse #1,” an employee of a Noll entity. The sec-
ond group is collectively referred to as the “UNMC defend­
ants,” composed of UNMC Physicians (UNMC) and “Jane
Doe Physician #1,” an employee of UNMC. The third group is
collectively referred to as the “City defendants” composed of
the City of Omaha, “Officer Doe #1,” and “Officer Doe #2.”
The appellants claimed that the defendants were negligent in
various respects and specifically in failing to protect Melissa
from Loyd. All the defendants moved to dismiss the second
amended complaint. The district court granted the defendants’
motions to dismiss. The district court denied the appellants’
leave to amend their second amended complaint except as to
the City defendants. The appellants did not amend their allega-
tions regarding the City defendants, and the City defendants
stood dismissed. The appellants filed this appeal challenging
the dismissal of the Lasting Hope defendants and UNMC
                             -4-
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

defendants. The City defendants are not parties to this appeal.
We determine that the district court erred when it dismissed
the appellants’ second amended complaint as to the Lasting
Hope defendants. We further conclude that the district court
erred when it denied the appellants’ motion to amend the
second amended complaint to add allegations relative to the
UNMC defendants and dismissed the UNMC defendants. We
reverse, and remand for further proceedings.

                    STATEMENT OF FACTS
   According to the appellants’ second amended complaint,
which is the operative pleading in this case, on or about June
11, 2013, Loyd assaulted and battered Melissa. The Omaha
Police Department (OPD) was contacted regarding the incident,
and officers completed a domestic violence report. Charges
were not brought against Loyd at that time, but an investiga-
tion was ongoing. The second amended complaint alleges that
in July, Loyd falsely imprisoned Melissa for a period of time.
Melissa contacted the OPD regarding Loyd at various times in
July and August.
   On August 7, 2013, the OPD issued an arrest warrant for
Loyd for the misdemeanor assault and battery of Melissa. On
August 8, Loyd contacted the OPD and voluntarily met with
and spoke to officers. During this meeting, “Loyd expressed
a desire to kill.” The OPD then placed Loyd under emergency
protective custody because it believed that Loyd was “mentally
ill and an imminent threat of danger to himself or others.”
Loyd was transferred to Lasting Hope. The appellants allege
that at the time Loyd was placed under emergency protective
custody, Lasting Hope was “aware of his misdemeanor war-
rant.” The second amended complaint further states: “Lasting
Hope knew or should have known that the [emergency pro-
tective custody] hold placed on Loyd was the result of Loyd
threatening to kill his mother and professing he was a danger
to himself and others.”
                              -5-
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

   Loyd remained at Lasting Hope from August 8 to 14, 2013.
Pursuant to Neb. Rev. Stat. § 71-919 (Reissue 2009), within
36 hours of being admitted to a mental health facility, an indi-
vidual under emergency protective custody must undergo a
mental health evaluation to be performed by a mental health
professional. Section 71-919(4) provides that “[a] person shall
be released from emergency protective custody after comple-
tion of such evaluation unless the mental health professional
determines, in his or her clinical opinion, that such person is
mentally ill and dangerous or a dangerous sex offender.” On
August 11, Jane Doe Physician #1, an employee of UNMC,
prepared a mental health evaluation of Loyd and found “Loyd
not to be a danger to himself or others.”
   According to the second amended complaint, while Loyd
was at Lasting Hope, he made repeated calls to Melissa from
Lasting Hope’s landline telephone. Loyd called Melissa on
August 8, at least 6 times on August 10, and 18 times on
August 11.
   On August 12, 2013, Loyd called the OPD to effectively
turn himself in on the outstanding arrest warrant. OPD offi-
cers went to Lasting Hope to arrest Loyd, but Lasting Hope
refused to release Loyd to the officers because the emergency
protective custody hold was still in effect. The second amended
complaint states that “[i]t is believed Jane Doe Nurse #1,
employed by Noll, was responsible for the discharge of Loyd
and involved in the failure to properly review the circum-
stances of Loyd’s admission and communicate effectively to
the OPD that Lasting Hope planned to release Loyd.”
   According to the second amended complaint, on August 14,
2013, “Loyd left Lasting Hope on his own, without supervi-
sion, being questioned or stopped, and without Lasting Hope
even noticing he was gone. Loyd freely walked out the facil-
ity sometime between 12:49 p.m. and 2:22 p.m.” Lasting
Hope did not notify the OPD on August 14 that Loyd had
left its premises. Sometime after 4:15 p.m. on August 14,
Loyd killed Melissa and later returned to Lasting Hope at
                               -6-
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

approximately 8 p.m. Subsequently, on August 16, while he
was still at Lasting Hope, Loyd was arrested for the murder
of Melissa.
   The second amended complaint notes that in September
2013, Loyd was found not competent to stand trial, and that in
January 2014, Loyd was diagnosed as paranoid schizophrenic.
   The appellants filed their second amended complaint on
July 17, 2015. They claimed that the defendants were negli-
gent in part for failing to provide Loyd with adequate mental
health treatment and for failing to protect Melissa from Loyd.
All the defendants filed motions to dismiss for failure to state
a claim upon which relief can be granted. The defendants also
filed motions to stay discovery. On July 31, the district court
filed an order in which it granted the defendants’ motions to
stay discovery until it had had an opportunity to rule on the
pending motions to dismiss.
   After a hearing, on October 16, 2015, the district court filed
an order in which it granted all of the defendants’ motions
to dismiss. The district court stated that the only issue raised
by the motions to dismiss was whether any of the defendants
owed a duty. The district court quoted Munstermann v. Alegent
Health, 271 Neb. 834, 716 N.W.2d 73 (2006):
      “a psychiatrist is liable for failing to warn of and protect
      from a patient’s threatened violent behavior, or failing to
      predict and [warn of and] protect from a patient’s violent
      behavior, when the patient has communicated to the psy-
      chiatrist a serious threat of physical violence against him-
      self, herself, or a reasonably identified victim or victims.
      The duty to warn of or to take reasonable precautions to
      provide protection from violent behavior shall arise only
      under those limited circumstances . . . .”
   The district court determined that the duty required of psy-
chologists, psychiatrists, and other mental health practitioners,
as set forth in Munstermann, is the same duty that was required
of the defendants in this case, except for the City defendants.
The district court then stated that
                               -7-
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

      there is no allegation contained in [the appellants’]
      Second Amended Complaint which suggests that . . .
      Loyd ever indicated in any way, any thought or sug-
      gestion of causing harm to specifically Melissa . . . the
      decedent herein. . . . Nowhere in [the appellants’] Second
      Amended Complaint is there an allegation that . . . Loyd
      indicated in any manner to any of the named Defendants
      his thoughts regarding or his intention to cause any injury
      to the victim Melissa . . . .
Accordingly, the district court determined that based on the
facts alleged in the second amended complaint, the Lasting
Hope defendants and the UNMC defendants did not owe a duty
to Melissa.
   The district court further determined that based on the alle-
gations set forth in the second amended complaint, the City
defendants owed no duty to Melissa. Therefore, the district
court granted all the defendants’ motions to dismiss. The dis-
trict court gave the appellants 2 weeks to amend their second
amended complaint against the City defendants. The appellants
did not amend their second amended complaint against the
City defendants.
   On October 23, 2015, the appellants filed a motion to alter
or amend the October 19 order or, in the alternative, a motion
to certify the October 19 order as a final judgment. The appel-
lants requested that the district court determine that the defend­
ants owed a duty to Melissa. The appellants also sought leave
to amend their second amended complaint with respect to the
UNMC defendants by adding the sentence: “‘Loyd sufficiently
communicated to Defendants a serious threat of physical vio-
lence to a reasonably identifiable victim. Melissa . . . was a
reasonably identifiable victim.’”
   On November 24, 2015, the district court filed an order in
which it denied the appellants’ motions. Specifically, the court
denied the appellants leave to amend the second amended
complaint, stating that the amendment would be futile. In its
November 24 order, the district court further acknowledged
                               -8-
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

that the appellants had not amended their second amended
complaint against the City defendants and that therefore, “this
action must stand as dismissed against” the City defendants.
   The appellants do not appeal the district court’s determi-
nations with respect to the City defendants, and they are not
parties to this appeal. However, the appellants do appeal the
dismissals as to the Lasting Hope defendants and the UNMC
defendants, as well as the denial of their motion to amend the
allegations in the second amended complaint relative to the
UNMC defendants.
   The appellants filed a timely appeal.
                  ASSIGNMENTS OF ERROR
   The appellants claim, consolidated and restated, that the
district court erred when it (1) dismissed the appellants’ second
amended complaint against the Lasting Hope defendants and
the UNMC defendants for failing to allege facts that showed
they owed a duty to Melissa and (2) denied the appellants’
motion for leave to amend the allegations in their complaint
relating to the claims against the UNMC defendants.
                    STANDARD OF REVIEW
   [1] A district court’s grant of a motion to dismiss is reviewed
de novo. Tryon v. City of North Platte, 295 Neb. 706, 890
N.W.2d 784 (2017).
   [2] With respect to the proper standard of review for a
denial of a motion to amend a pleading, we have stated that we
review a district court’s denial of a motion for leave to amend
a complaint for an abuse of discretion. Estermann v. Bose, 296
Neb. 228, 892 N.W.2d 857 (2017). However, we review de
novo an underlying legal conclusion that the proposed amend-
ments would be futile. Id.
                         ANALYSIS
Review of Orders of Dismissal.
   [3] The appellants claim that the district court erred when
it granted the motions to dismiss for failure to state a claim
                               -9-
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

filed by the Lasting Hope defendants and the UNMC defend­
ants. When reviewing an order dismissing a complaint, the
appellate court accepts as true all facts which are well pled
and the proper and reasonable inferences of law and fact
which may be drawn therefrom, but not the plaintiff’s conclu-
sions. Tryon v. City of North Platte, supra. Accordingly, for
the purpose of reviewing the court’s dismissal of the second
amended complaint, the facts that we have set out in this opin-
ion are the facts as alleged by the appellants which we accept
as true.
   [4] To prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts, accepted
as true, to state a claim to relief that is plausible on its face.
Id. In cases in which a plaintiff does not or cannot allege
specific facts showing a necessary element, the factual allega-
tions, taken as true, are nonetheless plausible if they suggest
the existence of the element and raise a reasonable expecta-
tion that discovery will reveal evidence of the element or
claim. Id.
   [5,6] Nebraska is a notice pleading jurisdiction. Civil actions
are controlled by a liberal pleading regime; a party is only
required to set forth a short and plain statement of the claim
showing that the pleader is entitled to relief and is not required
to plead legal theories or cite appropriate statutes so long
as the pleading gives fair notice of the claims asserted. Id.
The rationale for this liberal notice pleading standard in civil
actions is that when a party has a valid claim, he or she should
recover on it regardless of a failure to perceive the true basis
of the claim at the pleading stage. Id.

Lasting Hope Defendants.
   The appellants contend that, due to their custodial relation-
ship with Loyd, the Lasting Hope defendants owed a common
law duty of care to protect Melissa from Loyd and that the
district court erred when it granted the motions to dismiss as
to these defendants. We find merit to this assignment of error.
                              - 10 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

   In their second amended complaint, the appellants allege
that Lasting Hope is an affiliate of CHI Health Alegent
Creighton Clinic, which in turn is an affiliate of CHI Health.
They further allege that John Doe #1 and John Doe #2 are
employees of Lasting Hope. The appellants also allege that
Jane Doe Nurse #1 is an employee of a Noll entity and that
Lasting Hope contracted with a Noll entity for its services.
Given the foregoing relationships and for the sake of simplic-
ity as we indicated above, we will sometimes refer to these
defendants as the Lasting Hope defendants. We further note
that within the group of Lasting Hope defendants, certain
entities are employers and that the appellants allege that such
defendants are liable under the doctrine of respondeat supe-
rior. Under the doctrine of respondeat superior, an employer
is held vicariously liable for the negligent acts of an employee
committed while the employee was acting within the scope of
the employer’s business. Holloway v. State, 293 Neb. 12, 875
N.W.2d 435 (2016).
   [7,8] 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. Pittman v.
Rivera, 293 Neb. 569, 879 N.W.2d 12 (2016). The question
of whether a legal duty exists for actionable negligence is a
question of law dependent on the facts in a particular situa-
tion. Id.
   [9-11] In A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb.
205, 784 N.W.2d 907 (2010), we adopted the approach of
1 Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7 (2010), and held that an actor ordinarily
has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm. After A.W., the existence of a
duty generally serves as a legal conclusion that an actor must
exercise that degree of care as would be exercised by a reason-
able person under the circumstances. Phillips v. Liberty Mut.
Ins. Co., 293 Neb. 123, 876 N.W.2d 361 (2016). Moreover,
“[d]uty rules are meant to serve as broadly applicable guidelines
                             - 11 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

for public behavior, i.e., rules of law applicable to a category
of cases.” A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb.
at 212-13, 784 N.W.2d at 914-15. Whether a duty exists is a
policy decision. Phillips v. Liberty Mut. Ins. Co., supra.
   With respect to a defendant’s duty to control the behavior
of a third party, we noted in Ginapp v. City of Bellevue, 282
Neb. 1027, 809 N.W.2d 487 (2012), that this court had previ-
ously relied on the Restatement (Second) of Torts § 315(a) at
122 (1965), which provided that there is no duty to control
the conduct of a third person so as to prevent him from caus-
ing 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
explained 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
harm,” id., § 319 at 129. See, also, Bartunek v. State, 266 Neb.
454, 666 N.W.2d 435 (2003).
   Similarly, § 37 of 2 Restatement (Third) of Torts: Liability
for Physical and Emotional Harm (2012), which we referred to
approvingly in Ginapp v. City of Bellevue, supra, explains that
an actor whose conduct has not created a risk of physical harm
to another has no duty of care to that other person, unless an
affirmative duty created by another circumstance is applicable.
Such an affirmative duty can arise from the circumstance of a
special relationship.
   We have previously adopted certain special relationship pro-
visions found in the Restatement (Third), supra. In particular,
we have adopted special relationship provisions in § 40 regard-
ing the duty owed to another with regard to risks that arise
within the relationship. See, Peterson v. Kings Gate Partners,
290 Neb. 658, 861 N.W.2d 444 (2015) (landlord-tenant rela-
tionship in § 40(b)(6)); Martensen v. Rejda Bros., 283 Neb.
279, 808 N.W.2d 855 (2012) (employer-employee relationship
in § 40(b)(4)).
                              - 12 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

   Special relationships are also described in § 41 of the
Restatement (Third), supra. Section § 41(a), which we referred
to in Ginapp v. City of Bellevue, supra, provides: “An actor in
a special relationship with another owes a duty of reasonable
care to third parties with regard to risks posed by the other that
arise within the scope of the relationship.” Section 41(b) lists
special relationships, including the custodial relationship as
follows: “Special relationships giving risk to the duty provided
in Subsection (a) include: . . . (2) a custodian with those in its
custody.” In this regard, we note that the comments to § 41
state that custodial relationships include a jailer of a dangerous
criminal and hospitals for the mentally ill and for those with
contagious diseases. See 2 Restatement (Third), supra, § 41,
comment f. We believe § 41(b) is consistent with our jurispru-
dence and prudent. We therefore adopt the custodial special
relationship outlined in § 41(b)(2) of the Restatement (Third),
supra, at this time.
   We have stated that the duty of a custodian to prevent a
person in custody from causing harm to others is premised on
the degree of control afforded to one who “‘takes charge’” of
another. Ginapp v. City of Bellevue, 282 Neb. 1027, 1034, 809
N.W.2d 487, 493 (2012). The Restatement (Third) explains
that the custodial relationship need not be “full-time physical
custody giving the custodian complete control over the other
person,” but that to the extent that “there is some custody and
control of a person posing dangers to others, the custodian
has an affirmative duty to exercise reasonable care, consistent
with the extent of custody and control.” 2 Restatement (Third),
supra, § 41, comment f. at 67. See, also, Ginapp v. City of
Bellevue, supra.
   In this case, we determine that the appellants have alleged
sufficient facts in their second amended complaint, which we
accept as true, to show that Loyd was in Lasting Hope’s custody
and that therefore, such facts give rise to a duty. The appel-
lants allege that the OPD had taken Loyd into emergency pro-
tective custody and transferred him to Lasting Hope. Pursuant
                              - 13 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

to § 71-919 of the Nebraska Mental Health Commitment Act,
Neb. Rev. Stat. §§ 71-901 to 71-962 (Reissue 2009 & Cum.
Supp. 2016), an individual admitted under emergency protec-
tive custody is to undergo a mental health evaluation to be
performed by a mental health professional within 36 hours of
being admitted to a mental health facility. Section 71-919(4)
provides that such an individual is to be released from emer-
gency protective custody after the completion of such evalu-
ation, unless the mental health professional determines that
the person is mentally ill and dangerous or a dangerous
sex offender.
   According to the second amended complaint, Loyd was
transferred to Lasting Hope on August 8, 2013, under emer-
gency protective custody. He underwent a mental health evalu-
ation and was found not to be a danger to himself or others.
However, Lasting Hope did not discharge Loyd after the com-
pletion of the mental health evaluation. In fact, the allegations
are to the contrary.
   The appellants allege that on August 12, 2013, Loyd called
the OPD from Lasting Hope to turn himself in on his out-
standing arrest warrant. The appellants alleged that when
the officers arrived at Lasting Hope to arrest Loyd, “Lasting
Hope represented to Officer Doe #1 and Officer Doe #2 that
Loyd could not be released and an arrest could not be made
because the [emergency protective custody] hold was still
in effect.” The appellants further alleged that “[d]espite the
OPD’s efforts to take Loyd into their custody and control,
Lasting Hope prevented Loyd from leaving.” According to the
appellants, Jane Doe Nurse #1 in particular “was responsible
for the discharge of Loyd and involved in the failure to prop-
erly review the circumstances of Loyd’s admission and com-
municate effectively to the OPD that Lasting Hope planned to
release Loyd.”
   These facts alleged in the appellants’ second amended com-
plaint, which we accept as true, are sufficient to demonstrate
that Lasting Hope had “taken charge” of Loyd. Lasting Hope
                              - 14 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

did not allow Loyd to be released into the OPD’s custody
when the officers arrived at Lasting Hope to arrest him on
his outstanding warrant, even though it appears that emer-
gency protective custody had expired. Taking these allega-
tions as true, they show that by not releasing Loyd into
the OPD’s custody, Lasting Hope demonstrated that it had
taken charge of Loyd and had established custody over him.
Accordingly, based on the facts as pled in the second amended
complaint, Lasting Hope had Loyd in its custody, and apply-
ing § 41(b) of 2 Restatement (Third) of Torts: Liability for
Physical and Emotional Harm (2012), noted above, the Lasting
Hope defend­ants therefore owed a duty of reasonable care to
third parties, including Melissa, with regard to risks posed
by Loyd, consistent with the nature and extent of custody
exhibited by Lasting Hope. The district court erred when it
determined that the Lasting Hope defendants did not owe a
duty to Melissa. We further determine that the appellants pled
sufficient facts which could establish that the Lasting Hope
defendants breached the duty owed to Melissa. The appellants
allege in their second amended complaint that “[o]n August
14, 2013, Loyd left Lasting Hope on his own, without supervi-
sion, being questioned or stopped, and without Lasting Hope
even noticing he was gone.” The appellants allege that Lasting
Hope failed to inform the OPD that Loyd had left its premises
and failed to warn Melissa that Loyd was no longer at Lasting
Hope. The appellants further allege that the Lasting Hope
defendants’ actions and inaction were the proximate cause of
Melissa’s death.
   Accepting these facts as true, we determine that the appel-
lants alleged sufficient facts to state claims against the Lasting
Hope defendants which are plausible on their face. Thus, we
determine that the district court erred when it granted the
motions to dismiss and dismissed the appellants’ case with
respect to these defendants. We reverse the decision of the
district court with respect to the Lasting Hope defendants
                               - 15 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

and remand the cause for further proceedings consistent with
this opinion.

UNMC Defendants.
   The appellants contend that because the UNMC defendants
had a duty to warn Melissa or otherwise protect Melissa from
Loyd’s violent behavior, the district court erred when it granted
the motion to dismiss filed by these defendants or, in the alter-
native, the district court erred when it denied the appellants’
motion to amend the allegations in the second amended com-
plaint which relate to claims against the UNMC defendants.
We assume in our analysis that the proposed amendment is
given in good faith. With this understanding, we find merit to
appellants’ assignment of error in which they claim that denial
of their motion to amend was error.
   In its order granting the motions to dismiss, the district court
acknowledged that the appellants’ second amended complaint
contained an allegation that Loyd “‘expressed feelings of vio-
lence,’” but nevertheless concluded that an absence of an alle-
gation that “Loyd indicated in any manner to any of the named
Defendants his thoughts regarding or his intention to cause any
injury to the victim Melissa . . . is fatal.” The appellants con-
tend that the allegations taken together were sufficient to state
a cause of action against the UNMC defendants but that in
any event, this perceived flaw can be cured by an amendment
adding the following sentence: “Loyd sufficiently communi-
cated to Defendants a serious threat of physical violence to a
reasonably identifiable victim. Melissa . . . was a reasonably
identifiable victim.” In denying appellants’ motion to amend,
the district court stated that the amendment would be futile.
We review de novo a trial court’s conclusion that a proposed
amendment would be futile. Estermann v. Bose, 296 Neb. 228,
892 N.W.2d 857 (2017). In this case, we conclude that the dis-
trict court erred as a matter of law.
   We have stated that “‘[a] district court’s denial of leave
to amend pleadings is appropriate only in those limited
                             - 16 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

circumstances in which undue delay, bad faith on the part
of the moving party, futility of the amendment, or unfair
prejudice to the nonmoving party can be demonstrated.’”
Estermann v. Bose, 296 Neb. at 251, 892 N.W.2d at 873,
quoting Golnick v. Callender, 290 Neb. 395, 860 N.W.2d
180 (2015).
   In Estermann, we quoted the Nebraska Court of Appeals’
opinion in Bailey v. First Nat. Bank of Chadron, 16 Neb. App.
153, 741 N.W.2d 184 (2007), which held that where leave to
amend is sought
      before discovery is complete and before a motion for sum-
      mary judgment has been filed, the question of whether
      such amendment would be futile is judged by reference to
      Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003)
      [now codified as Neb. Ct. R. of Pldg. [§] 6-1112(b)(6)].
      Leave to amend in such circumstances should be denied
      as futile only if the proposed amendment cannot with-
      stand a rule 12(b)(6) motion to dismiss.”
296 Neb. at 253, 892 N.W.2d at 875, quoting Bailey v. First
Nat. Bank of Chadron, supra.
   In this case, the appellants sought to amend their second
amended complaint after the district court had granted the
defendants’ motion to dismiss, but before discovery was com-
plete and before a motion for summary judgment had been
filed. Therefore, the appellants’ motion for leave to amend
should have been denied as futile only if the complaint with the
addition of the proposed amendment cannot withstand a motion
to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6).
   With respect to the existing second amended complaint,
paragraph 48 alleges that “[d]uring this time, Loyd was an
imminent danger to himself and Melissa” and paragraph 53
alleges that “[a]t all times, Loyd remained mentally ill and
dangerous to himself, Melissa, and others.” In their motion to
amend, the appellants sought to amend their second amended
complaint by specifically adding the sentence: “Loyd suf-
ficiently communicated to Defendants a serious threat of
                              - 17 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

physical violence to a reasonably identifiable victim. Melissa
. . . was a reasonably identifiable victim.” In order to deter-
mine the propriety of the ruling on the proposed amendment,
we review the applicable substantive law.
   Although Jane Doe Physician #1 is a psychiatrist, we refer
to statutes regarding mental health practitioners for our legal
framework. Mental health treatment providers are liable for
failing to warn of a patient’s threatened behavior only under
certain exceptional circumstances. The Mental Health Practice
Act, see Neb. Rev. Stat. §§ 38-2102 to 38-2139 (Reissue
2016), and the Psychology Practice Act, see Neb. Rev. Stat.
§§ 38-3101 to 38-3132 (Reissue 2016), contain limits on lia-
bility. A mental health practitioner or psychologist is not liable
for failing to warn of a patient’s threatened behavior unless the
patient has communicated to the practitioner a serious threat
of physical violence to a reasonably identifiable victim. See
§§ 38-2137(1) and 38-3132(1).
   [12] The pertinent statute in the Mental Health Practice Act,
§ 38-2137(1), states:
      There shall be no monetary liability on the part of,
      and no cause of action shall arise against, any person
      who licensed or certified pursuant to the Mental Health
      Practice Act for failing to warn of and protect from a
      patient’s threatened violent behavior or failing to predict
      and warn of and protect from a patient’s violent behavior
      except when the patient has communicated to the mental
      health practitioner a serious threat of physical violence
      against himself, herself, or a reasonably identifiable vic-
      tim or victims.
   Section 38-2137(2) goes on to state:
      The duty to warn of or to take responsible precautions to
      provide protection from violent behavior shall arise only
      under the limited circumstances specified in subsection
      (1) of this section. The duty shall be discharged by the
      mental health practitioner if reasonable efforts are made
                               - 18 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
            RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                         Cite as 297 Neb. 1

      to communicate the threat to the victim or victims and to
      a law enforcement agency.
   A section in the Psychology Practice Act, § 38-3132(1),
is substantially similar to § 38-2127(1) of the Mental Health
Practice Act. Section 38-3132(1) provides:
      No monetary liability and no cause of action shall arise
      against any psychologist for failing to warn of and pro-
      tect from a client’s or patient’s threatened violent behav-
      ior or failing to predict and warn of and protect from
      a client’s or patient’s violent behavior except when the
      client or patient has communicated to the psychologist a
      serious threat of physical violence against a reasonably
      identifiable victim or victims.
   In Munstermann v. Alegent Health, 271 Neb. 834, 716
N.W.2d 73 (2006), we noted that there was no comparable
statute addressed to potential liability of a psychiatrist. But we
nevertheless concluded that the duty described in the foregoing
statutes should be required of psychiatrists. In Munstermann,
we stated that “a duty to warn and protect arises only if the
information communicated to the psychiatrist leads the psy-
chiatrist to believe that his or her patient poses a serious risk of
grave bodily injury to another.” 271 Neb. at 848, 716 N.W.2d
at 85. We stated that the “question is whether a serious threat
of physical violence was actually ‘communicated’ to the psy-
chiatrist.” Id.
   In the appellants’ second amended complaint, the appel-
lants alleged that Loyd had assaulted and battered Melissa
in June 2013 and that the OPD had been contacted regarding
the incident. The OPD completed a domestic violence report
regarding the incident, and an investigation was ongoing. The
appellants also alleged that Melissa contacted the OPD at
various times in July and August regarding Loyd’s violence
toward her.
   On August 7, 2013, the OPD issued an arrest warrant for
Loyd for the misdemeanor assault and battery of Melissa. The
appellants specifically alleged that Lasting Hope was “aware
                             - 19 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

of his misdemeanor warrant” attributable to his prior violence
toward Melissa. On August 8, when speaking with the OPD,
Loyd “expressed a desire to kill,” and he was therefore placed
under emergency protective custody and transferred to Lasting
Hope. The appellants alleged that “Lasting Hope knew or
should have known that the [emergency protective custody]
hold placed on Loyd was the result of Loyd threatening to
kill his mother and professing he was a danger to himself and
others.” The appellants specifically allege that while he was
at Lasting Hope, Loyd made repeated calls to Melissa from
Lasting Hope’s landline telephone.
   In this case, the appellants allege in their second amended
complaint that Jane Doe Physician #1, a psychiatrist employed
by UNMC, conducted a mental health evaluation of Loyd.
Jane Doe Physician #1 was brought in to evaluate Loyd, and
for purposes of this lawsuit, the scope of the duty of Jane
Doe Physician #1 was dictated by the context and purpose for
which she was consulted. As we noted above, Loyd was taken
to Lasting Hope pursuant to the emergency protective custody
provisions of the Nebraska Mental Health Commitment Act.
Section 71-919(4) provides:
      The administrator of the facility shall have such person
      evaluated by a mental health professional as soon as rea-
      sonably possible but not later than thirty-six hours after
      admission. The mental health professional shall not be the
      mental health professional who causes such person to be
      taken into custody under this section and shall not be a
      member or alternate member of the mental health board
      that will preside over any hearing under the Nebraska
      Mental Health Commitment Act or the Sex Offender
      Commitment Act with respect to such person. A person
      shall be released from emergency protective custody after
      completion of such evaluation unless the mental health
      professional determines, in his or her clinical opinion,
      that such person is mentally ill and dangerous or a dan-
      gerous sex offender.
                             - 20 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

   The language of the quoted statute described the context of
Jane Doe Physician #1’s task: to evaluate Loyd to determine
whether he was mentally ill and dangerous. Paragraphs 27 et
seq. of the second amended complaint refer to and cite the
emergency protective custody provisions, and it flows from
§ 71-919(4) that in Jane Doe Physician #1’s evaluation of the
person in custody, Loyd would be called upon to communicate
to Jane Doe Physician #1 information bearing on his danger-
ousness with respect to himself or others. Under Munstermann
v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 (2006), Jane
Doe Physician #1, a psychiatrist, is exposed to liability in the
limited circumstance where information has been communi-
cated to her which leads her to believe that Loyd poses a seri-
ous threat of physical harm against a reasonably identifiable
victim. Given the existing allegations in the second amended
complaint, the addition of the proposed amendment results
in a complaint which under Munstermann and by applica-
tion of respondeat superior, states a cause of action against
the UNMC defendants and can withstand a motion to dismiss
under § 6-1112(b)(6).
   Upon our de novo review, we conclude that leave to amend
would not be futile and that the district court’s legal conclu-
sion to the contrary was error. We conclude that the district
court erred when it denied the appellants’ motion to amend
and dismissed the appellants’ case with respect to the UNMC
defendants. We reverse the rulings of the district court denying
the appellants’ motion to amend and dismissing the UNMC
defendants and remand the cause for further proceedings con-
sistent with this opinion.

                        CONCLUSION
   We determine that the district court erred when it dis-
missed the appellants’ second amended complaint for failure
to state a claim with respect to the Lasting Hope defendants.
We further conclude that appellants’ proposed amendment
would not be futile and that the district court erred when it
                             - 21 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
           RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES
                        Cite as 297 Neb. 1

denied the appellants’ motion to amend the second amended
complaint and dismissed the action as to the UNMC defend­
ants. Therefore, the court’s order dismissing the appellants’
complaint as to the Lasting Hope defendants and the UNMC
defendants and its further order denying the appellants’ motion
for leave to file an amended complaint are reversed and the
cause is remanded for further proceedings consistent with
this opinion.
	R eversed and remanded for
	                                 further proceedings.
   Wright, Cassel, and Funke, JJ., not participating.
