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to modify the dissolution decree. Without evidence of fraud 

or gross inequity, modification of the decree was an abuse of 

discretion. We vacate the portion of the district court’s order 

purporting to do so.

Finally, we address the portion of Rocky’s motion seeking 

an order determining that he had performed his obligation 

under the assistance clause. Because the district court did not 

determine whether, based on the evidence before it, Rocky had 

fully complied with the assistance clause, we remand the cause 

with direction that the court do so.

Vacated in part and remanded with direc

Donald Peterson, appellant, v. Ki

Partners - Omaha I, L.P., an

Kings Gate, LLC, appe

___ N.W.2d ___

Filed April 10, 2015. No. S-14-383.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to 

dismiss is reviewed de novo.

2. Motions to Dismiss: Pleadings: 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 conclusion.

3. 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.

4. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent 

conclusion irrespective of the determination made by the court below.

5. 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.

6. Negligence. The question whether a legal duty exists for actionable negligence is 

a question of law dependent on the facts in a particular situation.

7. ____. 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.
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8. ____. Duty rules are meant to serve as broadly applicable guidelines for public 

behavior, i.e., rules of law applicable to a category of cases.

9. ____. Whether a duty exists is a policy decision.

10. ____. Special relationships can give rise to a duty.

Appeal from the District Court for Douglas County: Joseph S.

Troia, Judge. Reversed and remanded for further proceedings

Thomas M. Locher, Amy M. Locher, and Douglas W. 

Krenzer, of Locher, Pavelka, Dostal, Braddy & Hammes, 

L.L.C., for appellant.

Mary M. Schott and Ronald E. Frank, of Sodoro, Daly, 

Shomaker & Selde, P.C., L.L.O., for appellees.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, a

Heavican, C

INTRODUCTION

Donald Peterson filed suit against Kings Gate Partners - 

Omaha I, L.P., and Picerne Kings Gate, LLC (collectively 

Kings Gate), for injuries Peterson received following an assault 

by Floyd Wallace on Kings Gate’s premises. The district court 

granted Kings Gate’s motion to dismiss for failure to state 

a claim. Peterson appeals. We reverse, and remand for further proceedings.

FACTUAL BACKGROUND

Peterson filed his first amended complaint against Kings 

Gate on January 7, 2014. That complaint alleged that Peterson 

and Wallace’s mother were both residents of Kings Gate senior 

apartment homes in Omaha, Nebraska. According to the complaint, Peterson and Wallace’s mother lived across the hall 

from each other.

According to the complaint, despite lease provisions prohibiting it, Wallace resided with his mother in her apartment. On 

or about December 8, 2012, Wallace’s mother was notified that 

due to Wallace’s residing in her apartment, she was in violation 

of her lease. On December 17, Wallace assaulted Peterson in 

Peterson’s apartment.
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Peterson alleged in his complaint that Kings Gate conducted a background check on Wallace. After the assault 

occurred, Peterson was informed on one occasion that the 

background check did not reveal any felony convictions, 

and he was informed on another occasion that drug-related 

felony convictions were found. Peterson further alleges that, 

in fact, Wallace had several convictions for crimes of violence, including assault and battery in 2000; violation of a 

protection order for verbally assaulting a mentally challenged 

woman via telephone in 2002; and abuse of a vulnerable adult 

in 2004.

Peterson alleged that Kings Gate was negligent in failing 

to (1) exercise reasonable care in performing a criminal background check on Wallace, (2) exclude Wallace from the Kings 

Gate senior apartment homes premises, (3) warn tenants about 

or otherwise protect tenants from Wallace, and (4) provide safe 

premises for tenants.

On January 14, 2014, Kings Gate filed a motion to dismiss for failure to state a claim. That motion was granted 

on April 23, with the district court’s reasoning that Kings 

Gate had no duty to protect Peterson from Wallace. Peterson 

appealed.

ASSIGNMENTS OF ERROR

On appeal, Peterson assigns, restated, that the district court 

erred in (1) granting Kings Gate’s motion to dismiss and (2) 

finding that Kings Gate owed no duty to Peterson.

STANDARD OF REVIEW

[1-3] A district court’s grant of a motion to dismiss is 

reviewed de novo.1 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 conclusion.2

 To prevail against a motion to dismiss for 

1 Bruno v. Metropolitan Utilities Dist., 287 Neb. 551, 844 N.W.2d 50 

(2014).

2 Id.
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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.3

[4] To the extent an appeal calls for statutory interpretation 

or presents questions of law, an appellate court must reach an 

independent conclusion irrespective of the determination made 

by the court below.4

ANALYSIS

The sole issue presented by this appeal is whether Kings 

Gate owed a duty to Peterson such as to overcome Kings 

Gate’s motion to dismiss. Peterson argues that Kings Gate 

owes a duty of either reasonable care under A.W. v. Lancaster 

Cty. Sch. Dist. 00015 and § 7 of the Restatement (Third) of 

Torts,6 or by virtue of the special relationship owed by a landlord to its tenant under § 40 of the Restatement.7

 Peterson also 

argues that once Kings Gate undertook a background check on 

Wallace, it had a duty under § 43 of the Restatement8 to undertake it nonnegligently.

[5,6] 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.9 The question whether a legal duty exists for actionable negligence 

3 Id.

4 Id.

5 A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 

(2010).

6 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm 

§ 7 (2010).

7 2 Restatement (Third) of Torts: Liability for Physical and Emotional Harm 

§ 40 (2012).

8 Id., § 43.

9 Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).
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662 290 NEBRASKA REPORTS

is a question of law dependent on the facts in a particular situation.10

In the past, we used the risk-utility test to determine the 

existence of a tort duty.11 But in A.W., we abandoned the 

risk-utility test and adopted the duty analysis set forth in the 

Restatement (Third) of Torts.12 We generally held that

foreseeable risk is an element of the determination of 

negligence, not legal duty. 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. The extent of foreseeable risk depends on the 

specific facts of the case and cannot be usefully assessed 

for a category of cases; small changes in the facts may 

make a dramatic change in how much risk is foreseeable. Thus, courts should leave such determinations to the 

trier of fact unless no reasonable person could differ on 

the matter.13

[7-9] 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.14 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.”15 Whether a duty exists 

is a policy decision.16

[10] But special relationships can give rise to a duty.17 And 

in this case, the issue presented is of the duty owed by a landlord to a tenant. Section 40 of the Restatement provides for 

such a duty:

10 Id.

11 See id.

12 A.W., supra note 5.

13 Id. at 216, 784 N.W.2d at 917.

14 See id.

15 Id. at 212-13, 784 N.W.2d at 914-15.

16 A.W., supra note 5.

17 Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012); A.W., 

supra note 5.
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(a) An actor in a special relationship with another owes 

the other a duty of reasonable care with regard to risks 

that arise within the scope of the relationship.

(b) Special relationships giving rise to the duty provided in Subsection (a) include:

. . . .

(6) a landlord with its tenants . . . .18

We previously cited to § 40, and explicitly adopted the duty 

set forth in subsection (b)(4), dealing with the employment 

relationship.19 We remain persuaded that the reasoning of the 

Restatement (Third) is consistent with our case law, notably, 

the framework we set forth in A.W., and accordingly find that 

the legal duty applicable here is that set forth by § 40(b)(6), 

pertaining to the landlord-tenant relationship.

We recognize our prior case law holds that there is no general duty of a landlord to ensure the safety of tenants.20 But 

this case law predates our decision in A.W. and is not helpful in 

the duty determination presented here. And in any case, as we 

noted in A.W., the

endorsement of the Restatement (Third) [is not] a fundamental change in our law. It is better understood as 

rearranging the basic questions that are posed by any 

negligence case and making sure that each question has 

been put in its proper place. But it does not change those 

questions. To say, as we have in the past, that a defendant 

had no duty, under particular circumstances, to foresee 

a particular harm is really no different from saying that 

the defendant’s duty to take reasonable care was not 

breached, under those circumstances, by its failure to 

foresee the unforeseeable.21

Thus, while there might now be a duty in such a situation, 

such a duty does not imply either a breach of that duty or 

liability for negligence. As we noted, the questions are the 

18 2 Restatement, supra note 7 at 40.

19 See Martensen, supra note 17.

20 See C.S. v. Sophir, 220 Neb. 51, 368 N.W.2d 444 (1985).

21 A.W., supra note 5, 280 Neb. at 217, 784 N.W.2d at 917-18.
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664 290 NEBRASKA REPORTS

same—it is the arrangement of those questions into the elements of negligence that has changed.

Peterson’s appeal was dismissed for failure to state a claim, 

with the district court’s concluding that Kings Gate owed no 

duty to Peterson. At this stage in the proceedings, we conclude 

that Peterson has stated a claim for relief that is plausible on 

its face and therefore survives a motion to dismiss. Kings Gate 

did owe a duty under § 40 of the Restatement; it remains for 

the finder of fact to determine whether Kings Gate breached 

that duty. As such, we reverse the decision of the district court 

granting Kings Gate’s motion to dismiss, and remand the cause 

for further proceedings.

CONCLUSION

The decision of the district court is reversed, and the cause 

is remanded for further proceedings.

 Reversed and remanded

further proceedings

Wright, J., not participating

Credit Management Services, Inc., app

v. Lorinda Jefferson, appell

___ N.W.2d ___

Filed April 10, 2015. No. S-14-545.

1. Judgments: Costs: Appeal and Error. The standard of review for an award of 

costs is whether an abuse of discretion occurred.

2. Judgments: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying just results in matters submitted 

for disposition.

3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which 

an appellate court must resolve independently of the trial court.

4. ____: ____. Absent a statutory indication to the contrary, an appellate court gives 

words in a statute their ordinary meaning.

5. ____: ____. An appellate court does not consider a statute’s clauses and phrases 

as detached and isolated expressions. Instead, the whole and every part of the 

statute must be considered in fixing the meaning of any of its parts.

6. Statutes. Statutes which change or take away a common-law right must be 

strictly construed.