Nebraska Supreme Court Clarifies Duty Analysis in Negligence Cases

           The Nebraska Supreme Court recently clarified the test for determining whether a party owes a duty of reasonable care to another, a threshold requirement for cases dealing with anything from car accidents to malpractice. To establish negligence in Nebraska, a plaintiff must show that the defendant owed a duty of reasonable care, that the defendant failed to act reasonably, and that the defendant’s failure to act reasonably caused the plaintiff damages. Whether someone owes a duty of reasonable care to another is a question of law for a judge, and a case could be dismissed if the plaintiff cannot establish a duty.  In 2010, the Nebraska Supreme Court adopted a new test to determine whether a duty of reasonable care exists, opining that a person owes a duty to another if the person engaged in conduct that created a risk of physical harm to another.

            In Bell v. Grow With Me Childcare & Preschool, parents of a child tragically killed by his nanny alleged that the nanny’s former employers were at least partially responsible for his death. They alleged that the daycares knew the nanny was a danger to children at the daycare, but that the daycares failed to report the nanny’s behavior to the Nebraska Department of Health and Human Services. The daycares alleged that their duty of reasonable care did not extend to the plaintiffs, as they had never used the daycares services or contacted the daycares prior to filing suit. The lower court refused to dismiss the suit based on failure to meet the duty requirement, finding that “the alleged conduct of not reporting suspected child abuse created a risk of physical harm”.

            After the case was appealed, the Nebraska Supreme Court determined that this analysis was made in error. The court noted that engaging in “conduct that created a risk of physical harm to another” must be an affirmative act rather than passive inaction. This is true because, barring narrow circumstances, if a defendant has not acted in a way to create a risk of harm to another, the defendant is not required to act in a specified manner. The court further explained that, to determine whether a person engaged in conduct that created a risk of harm to another, it is helpful to ask whether that same risk of harm would have been present to another if the defendant had been absent.

            In this case, the court determined that the lower court erred in its duty analysis for numerous reasons. First, the plaintiffs’ allegation that the daycares failed to act was not an affirmative action, but was merely passive inaction that does not create a risk of harm. Second, any actions by the daycare prior to the time that the plaintiffs hired the nanny did not increase the risk of harm already posed by the nanny herself.

            The Nebraska Supreme Court’s opinion in this case is the first where the court fully explored what actions trigger a requirement to help others under the framework adopted in 2010. By opining that an actor must affirmatively act in order to create a duty, the Nebraska Supreme Court placed a necessary constraint on negligence cases that is consistent with prior case law. By being able to better identify who owes a duty to whom, Nebraskans can have a better understanding about potential risks stemming from everyday actions.