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RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES

Cite as 297 Neb. 1

Angela Rodriguez and Adan Rodriguez, 

Special Administrators 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 underlying legal conclusion that the proposed amendments would be futile.

3. Motions to Dismiss: Appeal and Error. 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 conclusions.

4. Motions to Dismiss: Pleadings. 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. 

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 

Nebraska Supreme Court Online Library

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

07/28/2017 09:09 AM CDT
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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 enforcement agency.

Appeal from the District Court for Douglas County: 

James T. Gleason, Judge. Reversed and remanded for further proceedings.

Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for 

appellants.

Patrick G. Vipond, William R. Settles, and Cathy S. TrentVilim, 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.
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Heavican, C.J., Miller-Lerman, Stacy, and Kelch, 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 appellants 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 second group is collectively referred to as the “UNMC defendants,” 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 allegations 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 
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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 investigation 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 warrant.” The second amended complaint further states: “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.”
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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 individual 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 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 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 officers 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 circumstances 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 supervision, being questioned or stopped, and without Lasting Hope 

even noticing he was gone. Loyd freely walked out the facility 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 
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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 negligent 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 psychiatrist a serious threat of physical violence against himself, 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 psychologists, 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
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there is no allegation contained in [the appellants’] 

Second Amended Complaint which suggests that . . . 

Loyd ever indicated in any way, any thought or suggestion 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 allegations 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 district 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 appellants requested that the district court determine that the defendants 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 violence 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 
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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 determinations 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 amendments 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 
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filed by the Lasting Hope defendants and the UNMC defendants. 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 conclusions. 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 opinion 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 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. 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 relationship 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.
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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 simplicity 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 superior. 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 situation. 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 reasonable 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 
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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 previously 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 causing 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 provisions found in the Restatement (Third), supra. In particular, 

we have adopted special relationship provisions in § 40 regarding 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 relationship in § 40(b)(6)); Martensen v. Rejda Bros., 283 Neb. 

279, 808 N.W.2d 855 (2012) (employer-employee relationship 

in § 40(b)(4)).
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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 jurisprudence 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 appellants allege that the OPD had taken Loyd into emergency protective custody and transferred him to Lasting Hope. Pursuant 
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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 protective 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 emergency protective custody after the completion of such evaluation, 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 emergency protective custody. He underwent a mental health evaluation and was found not to be a danger to himself or others. 

However, Lasting Hope did not discharge Loyd after the completion 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 outstanding 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 properly review the circumstances of Loyd’s admission and communicate effectively to the OPD that Lasting Hope planned to 

release Loyd.”

These facts alleged in the appellants’ second amended complaint, which we accept as true, are sufficient to demonstrate 

that Lasting Hope had “taken charge” of Loyd. Lasting Hope 
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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 emergency protective custody had expired. Taking these allegations 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 applying § 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 supervision, 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 appellants 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 
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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 alternative, the district court erred when it denied the appellants’ 

motion to amend the allegations in the second amended complaint 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 violence,’” but nevertheless concluded that an absence of 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 . . . is fatal.” The appellants contend 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 communicated 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 district 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 
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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 summary 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 withstand 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 complete 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 sufficiently communicated to Defendants a serious threat of 
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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 determine 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 liability. 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 victim 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 
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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 protect from a client’s or patient’s threatened violent behavior 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 psychiatrist 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 psychiatrist.” Id.

In the appellants’ second amended complaint, the appellants 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 
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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 reasonably 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 dangerous sex offender.
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RODRIGUEZ v. CATHOLIC HEALTH INITIATIVES

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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 dangerousness 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 communicated to her which leads her to believe that Loyd poses a serious 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 application 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 conclusion 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 consistent with this opinion.

CONCLUSION

We determine that the district court erred when it dismissed 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 
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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 defendants. 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.

 Reversed and remanded for

further proceedings.

Wright, Cassel, and Funke, JJ., not participating.