Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2017 01:09 AM CDT




                                                      - 726 -
                                  Nebraska Supreme Court A dvance Sheets
                                          296 Nebraska R eports
                                        THOMAS v. BOARD OF TRUSTEES
                                             Cite as 296 Neb. 726




                            LaTanya Thomas, individually and as Special
                            A dministrator of the Estate of Tyler Thomas,
                              deceased, and K evin Semans, appellants, v.
                               Board of Trustees of the Nebraska State
                                Colleges and Joshua K eadle, appellees.
                                                 ___ N.W.2d ___

                                        Filed May 19, 2017.     No. S-16-480.

                1.	 Summary Judgment: Appeal and Error. An appellate court will
                     affirm a lower court’s grant of summary judgment if the pleadings and
                     admitted evidence 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.	 ____: ____. In reviewing a summary judgment, an appellate court views
                     the evidence in the light most favorable to the party against whom the
                     judgment was granted and gives that party the benefit of all reasonable
                     inferences deducible from the evidence.
                3.	 Summary Judgment. On a motion for summary judgment, the question
                     is not how the factual issue is to be decided but whether any real issue
                     of material fact exists.
                4.	 ____. Summary judgment is proper when the pleadings and evidence
                     admitted at the hearing disclose no genuine issue regarding any material
                     fact or the ultimate inferences that may be drawn from those facts and
                     that the moving party is entitled to judgment as a matter of law.
                5.	 Summary Judgment: Proof. A party moving for summary judgment
                     makes a prima facie case for summary judgment by producing enough
                     evidence to demonstrate that the movant is entitled to judgment if the
                     evidence were uncontroverted at trial.
                6.	 ____: ____. Once the moving party makes a prima facie case, the
                     burden shifts to the party opposing a motion for summary judgment to
                     produce admissible contradictory evidence showing the existence of a
                     material issue of fact that prevents judgment as a matter of law.
                                    - 727 -
             Nebraska Supreme Court A dvance Sheets
                     296 Nebraska R eports
                      THOMAS v. BOARD OF TRUSTEES
                           Cite as 296 Neb. 726

 7.	 Tort Claims Act: Proof. To recover in a negligence action brought
     under 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.
 8.	 Negligence. The existence of a duty generally serves as a legal conclu-
     sion that an actor must exercise such degree of care as would be exer-
     cised by a reasonable person under the circumstances.
 9.	 Negligence: Public Policy. Whether a duty exists is a policy question.
10.	 Negligence. Whether a legal duty exists for actionable negligence is a
     question of law.
11.	 ____. In a negligence action, 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.
12.	 ____. Foreseeability is analyzed as a fact-specific inquiry.
13.	 ____. Small changes in the facts may make a dramatic change in how
     much risk is foreseeable.
14.	 ____. The law does not require precision in foreseeing the exact hazard
     or consequence which happens; it is sufficient if what occurs is one of
     the kinds of consequences which might reasonably be foreseen.
15.	 Negligence: Assault. In order to make a risk of attack foreseeable, the
     existing circumstances to be considered must have a direct relationship
     to the harm incurred.
16.	 Negligence: Judgments. Courts should leave determinations of foresee-
     able risk to the trier of fact unless no reasonable person could differ on
     the matter.
17.	 ____: ____. Although questions of foreseeable risk are ordinarily proper
     for a trier of fact, courts may reserve the right to determine that the
     defendant did not breach its duty, as a matter of law, if reasonable
     people could not disagree about the unforeseeability of the risk of the
     harm incurred.

   Appeal from the District Court for Nemaha County: Daniel
E. Bryan, Jr., Judge. Affirmed.
  Vincent M. Powers and Elizabeth A. Govaerts, of Vincent
M. Powers & Associates, for appellants.
  Ronald F. Krause and Patrick B. Donahue, of Cassem,
Tierney, Adams, Gotch & Douglas, for appellee Board of
Trustees of the Nebraska State Colleges.
   No appearance for appellee Joshua Keadle.
                             - 728 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                 THOMAS v. BOARD OF TRUSTEES
                      Cite as 296 Neb. 726

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.

  Miller-Lerman, J.
                         NATURE OF CASE
   In the fall of 2010, Tyler Thomas (Thomas) and Joshua
Keadle were both students at Peru State College (PSC). On
December 3, 2010, Thomas went missing. This appeal arises
from Keadle’s alleged abduction, rape, and murder of Thomas.
   LaTanya Thomas, as the special administrator of Thomas’
estate, and LaTanya Thomas and Kevin Semans, individu-
ally as Thomas’ mother and father (collectively the appel-
lants), filed their fifth amended complaint against the Board of
Trustees of the Nebraska State Colleges (Board) and Keadle in
the district court for Nemaha County. The appellants filed their
action under the State Tort Claims Act and sought damages
from the Board for the wrongful death of Thomas, Thomas’
pain and suffering, and LaTanya Thomas’ and Semans’ severe
emotional distress. The appellants’ causes of action are pre-
mised upon the Board’s alleged negligence. The appellants
also sued Keadle, but their claims against Keadle are not
before the court in this appeal.
   The appellants and the Board each filed a motion for sum-
mary judgment. After a hearing, the district court filed an
order in which it granted the Board’s motion for summary
judgment, denied the appellants’ motion, and dismissed the
appellants’ fifth amended complaint against the Board with
prejudice. The appellants subsequently filed a motion for
default judgment against Keadle, which was granted as to
liability. Following a jury trial on damages, the district court
filed an order in which it entered a monetary judgment against
Keadle based on the jury’s monetary verdict.
   The appellants appeal from the district court’s order in
which it granted summary judgment in favor of the Board.
Because we conclude that the risk of Keadle’s alleged acts of
abducting, raping, and murdering Thomas was not foreseeable
                              - 729 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                  THOMAS v. BOARD OF TRUSTEES
                       Cite as 296 Neb. 726

as a matter of law, we affirm the district court’s order which
granted summary judgment in favor of the Board.

                    STATEMENT OF FACTS
   In the fall of 2010, Thomas was a freshman student at PSC
and lived in a dormitory on campus. Keadle was also a student
at PSC, and he lived in the dormitory room next to Thomas’.
Keadle was 10 years older than Thomas. Thomas went missing
and was last seen on December 3.
   In their fifth amended complaint, filed March 19, 2014, the
appellants alleged that Thomas was abducted, assaulted, and
murdered by Keadle. Although Thomas’ body has not been
recovered, she has been declared dead by a Nebraska court.
   In their fifth amended complaint against the Board and
Keadle, the appellants sought damages for the wrongful death
of Thomas, for Thomas’ pain and suffering prior to her death,
and for the severe emotional distress of LaTanya Thomas and
Semans as Thomas’ parents and next of kin. The appellants’
causes of action against the Board are premised upon the
Board’s negligence. Claims against Keadle are not at issue in
this appeal.
   On May 27, 2014, the Board filed its answer in which it
generally denied the allegations set forth in the appellants’ fifth
amended complaint and raised various affirmative defenses.
   On July 2, 2015, the appellants and the Board each filed
a motion for summary judgment. A hearing on the parties’
motions was held. Prior to the hearing, the Board filed objec-
tions and a motion to strike a number of the appellants’
exhibits, including police reports and transcripts and record-
ings of police interviews with Keadle. The Board’s objec-
tions to these exhibits were based on “the grounds of being
irrelevant, immaterial and constituting hearsay and contain-
ing hearsay.” At the hearing on the motions for summary
judgment, the district court stated that it was “going to take
the exhibits offered subject to these objections and . . .
the motion.”
                            - 730 -
          Nebraska Supreme Court A dvance Sheets
                  296 Nebraska R eports
                 THOMAS v. BOARD OF TRUSTEES
                      Cite as 296 Neb. 726

   The evidence received at the hearing is summarized as
follows: In August 2010, Keadle applied to be a volunteer
strength and conditioning assistant coach for the PSC wom-
en’s basketball team. When the athletic director learned that
Keadle was serving as a voluntary staff member prior to a
criminal background check, Keadle’s involvement with the
women’s basketball team was terminated pending completion
of a check. The human resources office’s criminal background
check showed minor traffic offenses.
   In September 2010, PSC’s director of housing and security
received an email from one of his employees informing him
that according to a sheriff’s deputy, Keadle had been “con-
victed of robbery of $300 and stealing a purse, in ’09 also has
other burglary’s [sic] but he was not charged for them, also
has a forcible fondling (RAPE) on a 18yr old female charge
on record, but the charges were droped [sic].” The director
of housing and security testified that he verbally informed
PSC’s athletic director, PSC’s vice president for enrollment
management and student affairs, and PSC’s human resources
director about the contents of the email before Thomas’ disap-
pearance, but the three administrators deny that they learned
about the contents of the email prior to Thomas’ disappear-
ance. A second background check on Keadle conducted by
the human resources office showed minor traffic offenses
and a misdemeanor theft conviction. The director of hous-
ing and security recommended that Keadle be removed from
the dormitory.
   During this time, PSC’s athletic director contacted the ath-
letic director at a college Keadle had previously attended for
a reference regarding Keadle. The athletic director at that
college did not recommend hiring Keadle, and PSC’s athletic
director decided that Keadle would not be allowed to serve as
a voluntary assistant.
   In September 2010, Keadle was charged with two sep-
arate violations of PSC’s code of conduct based on alle-
gations of inappropriate sexual behavior toward two female
                             - 731 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                 THOMAS v. BOARD OF TRUSTEES
                      Cite as 296 Neb. 726

students. Neither of the complaints involved Thomas, and
neither involved physical contact. With respect to the first
charge, Keadle pled responsible and was issued sanctions that
consisted of online educational activity and 10 hours of com-
munity service. Keadle did not complete these sanctions. With
respect to the second charge, Keadle pled not responsible, and
after a hearing, he was found not responsible.
   PSC’s vice president for enrollment management and stu-
dent affairs testified that although Keadle could have been
dismissed from PSC for failure to complete the sanctions,
such action would have been out of line with PSC’s general
past practices. Instead, she testified that generally, when a
student failed to complete a sanction, a hold was placed on
the student’s account so the student could not proceed beyond
that semester.
   In October 2010, Keadle was charged with a third viola-
tion of PSC’s code of conduct, because he had damaged the
door to his dormitory room. Keadle failed to attend a meeting
regarding this incident, and the matter was turned over to the
Nemaha County authorities. As of December 3, it was being
processed in the court system.
   On August 19, 2015, the district court filed its order regard-
ing the parties’ motions for summary judgment. The district
court did not make specific rulings regarding the Board’s
objections to the exhibits; instead, the district court stated:
“The court has excluded from its consideration all irrelevant
facts submitted and any hearsay that was offered for the pur-
pose of proving the truth of said facts.” The district court
first determined that, based on the admissible evidence, the
Board did not owe a duty to Thomas to prevent Keadle’s
violent actions, because any such actions occurred off PSC’s
campus. The district court then determined that even if the
court had determined there were inferences indicating that
the crime or part of the crime had occurred on campus,
the appellants failed to present evidence creating a mate-
rial issue of fact whether the Board could have or should
                              - 732 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                  THOMAS v. BOARD OF TRUSTEES
                       Cite as 296 Neb. 726

have foreseen that Keadle would harm Thomas. The district
court stated:
         While the [appellants’] counsel made a compassionate
      presentation for his clients by assembling various faults
      with Keadle[,] the totality of what is in the record known
      by the Board of Keadle prior to December 3, 2010, falls
      far short of what is necessary to present a factual issue of
      foreseeability to a fact finder. It would be a quantum leap
      in foreseeability.
   Based on the foregoing, the district court granted summary
judgment in favor of the Board and denied the appellants’
motion for summary judgment. The district court dismissed
the appellants’ fifth amended complaint against the Board
with prejudice.
   Subsequently, the district court granted the appellants’
motion for default judgment against Keadle and entered default
judgment against him on the issue of liability. A jury trial was
held regarding the issue of damages against Keadle, and the
district court filed an order in which it entered a monetary
judgment on the jury’s verdict.
   The appellants filed a timely appeal from the district court’s
August 19, 2015, order which granted summary judgment in
favor of the Board.
                  ASSIGNMENTS OF ERROR
   The appellants claim, consolidated and restated, that the
district court erred when it (1) granted the Board’s motion for
summary judgment, (2) determined that the Board did not owe
a duty to protect Thomas, and (3) determined that Keadle’s
alleged abduction, assault, and murder of Thomas were not
foreseeable.
                 STANDARDS OF REVIEW
   [1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
                             - 733 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                 THOMAS v. BOARD OF TRUSTEES
                      Cite as 296 Neb. 726

facts and that the moving party is entitled to judgment as a
matter of law. Bixenmann v. Dickinson Land Surveyors, 294
Neb. 407, 882 N.W.2d 910 (2016), modified on denial of
rehearing 295 Neb. 40, 886 N.W.2d 277. In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment
was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence. Id.

                          ANALYSIS
   The appellants generally claim that the district court erred
when it granted summary judgment in favor of the Board. The
appellants more specifically claim that the district court erred
when it determined that the Board did not owe Thomas a duty
of care and determined that even if the Board owed Thomas
a duty, no reasonable person would find that it breached such
duty, because Keadle’s conduct in allegedly abducting, raping,
and murdering Thomas was not foreseeable. Although our rea-
soning differs somewhat from that of the district court, for the
reasons explained below, we reject the appellants’ assignments
of error.
   [3,4] The principles regarding summary judgment are well
established. On a motion for summary judgment, the ques-
tion is not how the factual issue is to be decided but whether
any real issue of material fact exists. Cisneros v. Graham,
294 Neb. 83, 881 N.W.2d 878 (2016). In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment
was granted and gives such party the benefit of all reason-
able inferences deducible from the evidence. Strode v. City
of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016). Summary
judgment is proper when the pleadings and evidence admitted
at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Id.
                             - 734 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                 THOMAS v. BOARD OF TRUSTEES
                      Cite as 296 Neb. 726

   [5,6] A party moving for summary judgment makes a prima
facie case for summary judgment by producing enough evi-
dence to demonstrate that the movant is entitled to judgment if
the evidence were uncontroverted at trial. Cisneros v. Graham,
supra. Once the moving party makes a prima facie case, the
burden shifts to the party opposing the motion to produce
admissible contradictory evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law. Id.
   [7] To recover in a negligence action brought under 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. Ashby v. State, 279 Neb. 509, 779 N.W.2d 343
(2010). To warrant summary judgment in its favor, a defendant
must submit evidence showing the absence of at least one of
these elements. Here, the Board contended, inter alia, that as a
matter of law, the risk of the alleged abduction, rape, and mur-
der of Thomas was not reasonably foreseeable, and therefore,
the Board did not breach its duty. We agree.
   [8-10] In the past, we used the risk-utility test to determine
the existence of a tort duty. See A.W. v. Lancaster Cty. Sch.
Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010). But in
A.W., we abandoned the risk-utility test and adopted the duty
analysis set forth in the Restatement (Third) of Torts: Liability
for Physical and Emotional Harm (2010). We generally held
that foreseeable risk is an element of the determination of neg-
ligence, not legal duty. A.W. v. Lancaster Cty. Sch. Dist. 0001,
supra. 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 reasonable person under the
circumstances. Moreover, “[d]uty rules are meant to serve as
broadly applicable guidelines for public behavior, i.e., rules
of law applicable to a category of cases.” Id. at 212-13, 784
N.W.2d at 914-15. Whether a duty exists is a policy question.
A.W. v. Lancaster Cty. Sch. Dist. 0001, surpa. Whether a legal
duty exists for actionable negligence is a question of law. See,
                             - 735 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                 THOMAS v. BOARD OF TRUSTEES
                      Cite as 296 Neb. 726

Pittman v. Rivera, 293 Neb. 569, 879 N.W.2d 12 (2016); A.W.
v. Lancaster Cty. Sch. Dist. 0001, supra.
   We have previously recognized that schools owe their stu-
dents a duty of reasonable care. See A.W. v. Lancaster Cty.
Sch. Dist. 0001, supra. Therefore, in this case, contrary to the
district court’s conclusion, the Board owed Thomas a duty of
reasonable care.
   Having determined that the Board owed a duty of reason-
able care to Thomas, we must review the summary judgment
evidence as it bears on the remaining elements of negligence.
We turn first to the issue of what the evidence shows with
respect to whether the Board breached its duty of reason-
able care. In this regard, the appellants argue that because
Keadle’s actions were foreseeable, the Board breached its
duty, or, at least, there is a question of fact as to whether the
Board breached its duty. Because we conclude that the risk of
Keadle’s actions was not foreseeable as a matter of law, we
reject this argument. Accordingly, there was no breach of duty
by the Board.
   [11-14] We have stated that 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 negli-
gence. Pittman v. Rivera, supra; A.W. v. Lancaster Cty. Sch.
Dist. 0001, supra. Foreseeability is analyzed as a fact-specific
inquiry. See, Hodson v. Taylor, 290 Neb. 348, 860 N.W.2d
162 (2015); A.W. v. Lancaster Cty. Sch. Dist. 0001, supra. The
foreseeability analysis requires us to ask what the defendants
knew, when they knew it, and whether a reasonable person
would infer from those facts that there was a danger. Id. Small
changes in the facts may make a dramatic change in how much
risk is foreseeable. Id. The law does not require precision in
foreseeing the exact hazard or consequence which happens; it
is sufficient if what occurs is one of the kinds of consequences
which might reasonably be foreseen. Hodson v. Taylor, supra.
See, also, Doe v. Gunny’s Ltd. Partnership, 256 Neb. 653, 593
N.W.2d 284 (1999).
                              - 736 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                  THOMAS v. BOARD OF TRUSTEES
                       Cite as 296 Neb. 726

   [15-17] In this case, the appellants allege that Keadle vio-
lently attacked Thomas. In order to make a risk of attack
foreseeable, the existing circumstances to be considered must
have a direct relationship to the harm incurred. See, Pittman v.
Rivera, supra; A.W. v. Lancaster Cty. Sch. Dist. 0001, supra.
We have stated that courts should leave determinations of
foreseeable risk to the trier of fact unless no reasonable per-
son could differ on the matter. See Pittman v. Rivera, supra.
Although questions of foreseeable risk are ordinarily proper
for a trier of fact, courts may reserve the right to determine
that the defendant did not breach its duty, as a matter of law, if
reasonable people could not disagree about the unforeseeability
of the risk of the harm incurred. See Hodson v. Taylor, supra.
Therefore, although foreseeability is a question of fact, there
remain cases where foreseeability can be determined as a mat-
ter of law, such as by summary judgment. Id.
   As stated above, in this case, the appellants argue that the
evidence shows Keadle’s conduct in allegedly abducting, rap-
ing, and murdering Thomas was reasonably foreseeable and
that because such conduct was reasonably foreseeable, the
Board breached its duty of reasonable care owed Thomas. The
appellants further argue that at the very least, there is a ques-
tion of fact as to whether the risk of Keadle’s acts was reason-
ably foreseeable.
   In order to determine whether the Board breached its duty
of care, we must determine whether the Board, under the
facts and circumstances of this case, conducted itself reason-
ably. We fully recognize that the record indicates that there
were warning signs with respect to Keadle’s conduct at PSC;
however, nothing in the record amounts to a question of fact
as to whether such conduct forecast a risk that Keadle might
abduct, rape, and murder Thomas.
   In support of their argument that the harm incurred by
Thomas was reasonably foreseeable, the appellants point to
various facts in the record which we have recited above
regarding Keadle’s past and his actions while a student living
                             - 737 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                 THOMAS v. BOARD OF TRUSTEES
                      Cite as 296 Neb. 726

in the dormitory at PSC. Even viewing the evidence in the
light most favorable to the appellants as the nonmoving party,
as we must on a review of summary judgment, and even
assuming without deciding that the challenged evidence was
admissible, we conclude as a matter of law that no reasonable
fact finder could determine that Keadle’s alleged abduction,
rape, and murder of Thomas were a foreseeable risk.
   The facts indicate that Keadle’s behavior was seriously
problematic for PSC and other students, but not reasonably
indicative that he posed a risk of a violent assault on the per-
son of another student. And although the Board might have
anticipated continued problems with Keadle, no reasonable
fact finder could find that the harm that occurred was a rea-
sonably foreseeable risk based upon the circumstances present
in this case. That is, nothing in the record indicates there was
a risk that Keadle’s conduct would result in the abduction,
rape, and murder of another student. In order to make a risk
of attack foreseeable, the circumstances to be considered must
have a direct relationship to the harm incurred. See Pittman
v. Rivera, 293 Neb. 569, 879 N.W.2d 12 (2016). Such direct
relationship between the circumstances of the case and the
harm allegedly incurred by Thomas is lacking. We agree with
the underlying reasoning of the district court when it granted
summary judgment in favor of the Board.
                       CONCLUSION
   Because we determine as a matter of law that Keadle’s
alleged abduction, rape, and murder of Thomas were not a
foreseeable risk, we affirm the district court’s order which
granted summary judgment in favor of the Board.
                                                  A ffirmed.
