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Nebraska Supreme Court Advance S

296 Nebraska Report

THOMAS v. BOARD OF TRUSTEES

Cite as 296 Neb. 726

LaTanya Thomas, individually and 

Administrator of the Estate of Tyler Th

deceased, and Kevin Semans, appell

Board of Trustees of the Nebraska St

Colleges and Joshua Keadle, app

___ 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/16/2017 01:12 AM CDT
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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 conclusion that an actor must exercise such degree of care as would be exercised 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 foreseeable 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: Dan

E. Bryan, Jr., Judge. Affirm

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.
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296 Nebraska Report

THOMAS v. BOARD OF TRUSTEES

Cite as 296 Neb. 726

Heavican, C.J., Wright, Miller-Lerman, Casse

Kelch, and Funke

Miller-Lerman

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, individually as Thomas’ mother and father (collectively the appellants), 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 premised 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 summary 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 
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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 objections and a motion to strike a number of the appellants’ 

exhibits, including police reports and transcripts and recordings of police interviews with Keadle. The Board’s objections to these exhibits were based on “the grounds of being 

irrelevant, immaterial and constituting hearsay and containing 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.”
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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 women’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 “convicted 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’ disappearance, but the three administrators deny that they learned 

about the contents of the email prior to Thomas’ disappearance. A second background check on Keadle conducted by 

the human resources office showed minor traffic offenses 

and a misdemeanor theft conviction. The director of housing and security recommended that Keadle be removed from 

the dormitory.

During this time, PSC’s athletic director contacted the athletic 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 separate violations of PSC’s code of conduct based on allegations of inappropriate sexual behavior toward two female 
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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 community 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 student 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 violation 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 regarding 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 purpose 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 material issue of fact whether the Board could have or should 
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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 
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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 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. 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 reasoning 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 question 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 summary 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 reasonable 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.
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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 evidence 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 murder 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 negligence, 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, 
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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 students 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 reasonable 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 reasonable 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 negligence. 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).
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THOMAS v. BOARD OF TRUSTEES

Cite as 296 Neb. 726

[15-17] In this case, the appellants allege that Keadle violently 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 person 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 matter 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, raping, 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 question of fact as to whether the risk of Keadle’s acts was reasonably 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 reasonably. 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 
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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 person 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 reasonably 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.

Affirmed