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Christopher Bell, as Special Administrator for the 

of Cash Bell, et al., appellants and cross-appelle

v. Grow With Me Childcare & Preschoo

a domestic limited liability company orga

under the laws of the State of Nebraska

et al., appellees and cross-appellan

___ N.W.2d ___

Filed March 2, 2018. No. S-16-678.

1. Directed Verdict: Evidence. A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.

2. Negligence. The question whether a legal duty exists for actionable 

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

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

4. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect 

the plaintiff from injury, a failure to discharge that duty, and damages 

proximately caused by the failure to discharge that duty.

5. Negligence. The threshold issue in any negligence action is whether the 

defendant owes a legal duty to the plaintiff.

6. Negligence: Liability. Under the duty framework of the Restatement 

(Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010), 

the ordinary duty of reasonable care is expressly conditioned on the 

actor’s having engaged in conduct that creates a risk of physical harm to 

another. In the absence of such conduct, an actor ordinarily has no duty 

of care to another.

7. ____: ____. The Restatement (Third) of Torts: Liability for Physical and 

Emotional Harm § 7 (2010) states the general principle that an actor 

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

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has a duty of reasonable care when the actor’s conduct creates a risk of 

physical harm to others. The Restatement (Third) of Torts: Liability for 

Physical and Emotional Harm § 37 (2012) states a complementary principle: There is no duty of care when another is at risk for reasons other 

than the conduct of the actor, even though the actor may be in a position 

to help.

8. Torts: Negligence. The common law of torts has long recognized a fundamental distinction between affirmatively creating a risk of harm and 

merely failing to prevent it.

9. Negligence. There is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and 

nonfeasance, between active misconduct working positive injury to 

others and passive inaction, a failure to take positive steps to benefit 

others, or to protect them from harm not created by any wrongful act of 

the defendant.

10. ____. One way to determine whether an actor’s conduct created a risk of 

harm is to explore, hypothetically, whether the same risk of harm would 

have existed even if the actor had not engaged in the conduct.

11. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

12. Negligence. The Restatement (Third) of Torts: Liability for Physical and 

Emotional Harm § 7 (2010) does not recognize a universal duty to exercise reasonable care to all others in all circumstances. Rather, it imposes 

a general duty of reasonable care only on an actor whose conduct has 

created a risk of physical harm to another, and it recognizes that absent 

such conduct, an actor ordinarily has no duty of care to another.

13. ____. Under the risk architecture of the Restatement (Third) of Torts: 

Liability for Physical and Emotional Harm § 7 (2010), the first step is 

to determine whether the actor’s affirmative conduct created a risk of 

physical harm such that the general duty to exercise reasonable care 

under § 7 is applicable. If no such affirmative conduct exists, then the 

next step is to determine whether any special relationship exists that 

would impose a recognized affirmative duty on the actor with regard to 

the risks arising within the scope of that relationship.

14. ____. The failure to rescue or protect another from harm is not conduct 

creating a risk of harm under the Restatement (Third) of Torts: Liability 

for Physical and Emotional Harm § 7 (2010), and does not give rise to a 

duty of care under that section.

15. ____. Under the duty analysis of the Restatement (Third) of Torts: 

Liability for Physical and Emotional Harm (2010), the conduct creating 

the risk must be some affirmative act, even though the claimed breach 
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can be a failure to act. When the only role of the actor is failing to intervene to protect others from risks created by third persons, the actor’s 

nonfeasance cannot be said to have created the risk.

16. ____. Generally speaking, the law does not recognize a duty of care 

when others are at risk of physical harm for reasons other than the conduct of the actor, even if the actor may be in a position to help.

17. ____. Ordinarily, the failure to act will not be the sort of affirmative 

conduct that gives rise to a duty under the Restatement (Third) of Torts: 

Liability for Physical and Emotional Harm § 7 (2010).

18. ____. Even when an actor’s conduct does not create a risk of physical 

harm, the actor may still owe an affirmative duty of care based on a 

special relationship.

19. ____. Under the Restatement (Third) of Torts: Liability for Physical 

and Emotional Harm § 41 (2012), 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.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirme

Mark C. Laughlin, David C. Mullin, and Jacqueline M. 

DeLuca, of Fraser Stryker, P.C., L.L.O., for appellants.

Mark J. Daly, Andrew T. Schlosser, and MaryBeth Frankman, 

of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for 

appellees La Petite Academy, Inc., and Lisa Hampson.

Richard J. Gilloon, Bonnie M. Boryca, and MaKenna 

J. Stoakes, of Erickson & Sederstrom, P.C., for appellees 

Grow With Me Childcare & Preschool LLC and Jennifer 

Schmaderer.

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

Kelch, and Funke,

Stacy, 

This is a tort action brought to recover damages resulting from the tragic death of an infant who was abused by his 

nanny. The parents and special administrator for the infant’s 

estate sued the nanny for battery, and also sued two childcare 

centers where the nanny had worked previously, alleging the 
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childcare centers were negligent because they knew or should 

have known the nanny had been abusive to other children 

while in their employ but failed to report it to authorities. At 

the close of the evidence, the district court directed a verdict 

in favor of the childcare centers and dismissed them from the 

case. The claim against the nanny was submitted to the jury, 

which returned a verdict in excess of $5 million. The parents 

and special administrator appeal the dismissal of the childcare 

centers, and the childcare centers cross-appeal.

This case requires us to determine, as a threshold matter, 

whether the childcare centers owed a legal duty to protect the 

infant from the criminal acts of a former employee. Because 

we find no such duty on the facts of this case, we affirm 

the district court’s dismissal of the claims against the childcare centers.

I. FACTS

Christopher Bell and Ashley Bell are the parents of Cash 

Bell, born in October 2012. Christopher and Ashley used 

Care.com, an online marketplace for finding caregivers, to hire 

a nanny to provide in-home care for Cash. They ultimately 

hired Sarah Cullen. They selected Cullen over approximately 

30 other matches proposed by Care.com, in part because 

Cullen had more experience working in childcare centers. 

Before selecting Cullen, Christopher and Ashley conducted a 

standard background check using Care.com. The background 

check revealed no concerns.

Cullen began working for Christopher and Ashley in January 

2013. On February 28, Cullen inflicted fatal injuries on Cash, 

and he died from his injuries several days later. Cullen subsequently was convicted of intentional child abuse resulting 

in death and was sentenced to imprisonment for a term of 70 

years to life.1 This court affirmed her conviction and sentence 

on direct appeal.2

1 State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).

2 Id.
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1. Bells Sue f

Wrongful D

In May 2014, Christopher, acting as the special administrator for the estate of Cash, filed this wrongful death action in 

the Douglas County District Court on behalf of the next of kin. 

Joined with the wrongful death action was a survival action 

seeking to recover Cash’s damages, as well as Christopher and 

Ashley’s claim for predeath medical expenses. We refer collectively to these parties as “the Bells.”

(a) Claims Against Cullen

The Bells sued Cullen, alleging a claim of battery resulting 

in death. Cullen was served but did not answer, and the district 

court entered default judgment against Cullen on the issue of 

liability for Cash’s death. The question of damages was tried 

to the jury, which returned a verdict against Cullen totaling 

$5,125,000. The Bells do not assign error to this verdict, and 

Cullen is not participating in this appeal.

Cullen testified at trial by deposition. She denied abusing any children while working for the childcare centers, but 

declined to answer any questions about Cash. Cullen testified, 

over the childcare centers’ objection, that if she had been 

accused of, investigated for, or charged with child abuse, she 

would have stopped working as a childcare provider before 

being hired by Christopher and Ashley. Cullen also testified, over objection, that if she had been listed on the child 

abuse central registry,3 she would not have placed her profile 

on Care.com.

(b) Claim Against Care.com

The Bells sued Care.com for negligent misrepresentations regarding Cullen’s background. Prior to trial, Care.com 

was dismissed on summary judgment. No party has assigned 

error to that ruling, and Care.com is not participating in 

this appeal.

3 See Neb. Rev. Stat. §§ 28-718 and 28-720 (Cum. Supp. 2012).
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(c) Claims Against 

Childcare Centers

The Bells alleged negligence claims against La Petite 

Academy, Inc., and its director, Lisa Hampson (collectively 

La Petite), and Grow With Me Childcare & Preschool LLC and 

its director, Jennifer Schmaderer (collectively Grow With Me). 

The evidence offered at trial against La Petite and Grow With 

Me is summarized below.

The Bells alleged the childcare centers were negligent 

because they knew or should have known that Cullen was 

abusing children while in their employ and failed to report 

that abuse to authorities. The Bells’ general theory of liability was that the childcare centers had a common-law duty of 

reasonable care and breached that duty by failing to report 

Cullen’s abusive behavior. The alleged breach was premised 

in part on Neb. Rev. Stat. § 28-711(1) (Reissue 2016), 

which provides:

When any physician, any medical institution, any nurse, 

any school employee, any social worker, . . . or any 

other person has reasonable cause to believe that a child 

has been subjected to child abuse or neglect or observes 

such child being subjected to conditions or circumstances which reasonably would result in child abuse or 

neglect, he or she shall report such incident or cause a 

report of child abuse or neglect to be made to the proper 

law enforcement agency or to the [Department of Health 

and Human Services] on the toll-free number established 

by subsection (2) of this section.

In Nebraska, the willful failure to report child abuse or neglect 

is a Class III misdemeanor.4

Nebraska maintains a central registry of child protection cases.5

 This registry contains “records of all reports of 

child abuse or neglect opened for investigation” that are 

4 See Neb. Rev. Stat. § 28-717 (Reissue 2016).

5 See §§ 28-718 and 28-720.
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ultimately classified as either “court substantiated or agency 

substantiated.”6 “Court substantiated” means a court of competent jurisdiction has entered a judgment of guilty against the 

subject of the report or there has been an adjudication of abuse 

or neglect in juvenile court.7 “Agency substantiated” means 

the Department of Health and Human Services investigated 

and determined the report “was supported by a preponderance 

of the evidence.”8 Nebraska administrative regulations provide 

that an individual listed as a perpetrator on the registry may 

not be on the premises of a childcare center during the hours 

of operation.9 Administrative regulations also permanently bar 

an individual from working in a childcare center if he or she 

has been convicted of an unlawful act that endangers the health 

or safety of another individual, including child abuse, child 

neglect, and assault.10

(i) Evidence Against La Petite

La Petite is a national company that operates a childcare 

center in Omaha, Nebraska. The Bells had no relationship 

with La Petite, but Cullen was employed at La Petite from 

December 2006 to December 2007.

At trial, the Bells presented evidence that while Cullen was 

employed by La Petite, a coworker saw Cullen yell at, shove, 

and drop toddlers in her care. Cullen was also seen forcefully 

pulling a child down a playground slide, causing the child’s 

head to hit the ground. A coworker reported these events to 

La Petite’s director, who investigated and concluded they did 

not amount to reportable child abuse.11 Neither the director, 

the coworker, nor anyone else at La Petite reported Cullen’s 

6 § 28-718.

7 § 28-720(1).

8 § 28-720(3).

9 391 Neb. Admin. Code, ch. 3, § 006.03B (operative May 20, 2013).

10 Id., § 006.03A1.

11 See § 28-711.
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behavior to the authorities. Cullen was fired from La Petite in 

December 2007.

(ii) Evidence Against 

Grow With Me

Grow With Me is also an Omaha childcare center. The 

Bells had no relationship with Grow With Me, but Cullen was 

employed there from March to September 2012.

At trial, the Bells presented evidence that while Cullen was 

employed by Grow With Me, a coworker saw her verbally 

and physically abuse children. Cullen was seen dragging children, yelling at children, and dropping children. On one occasion, a coworker saw Cullen “shove” shoes and pants into a 

child’s mouth during a diaper change. On another occasion, a 

coworker saw Cullen “fling” a child across the room, causing 

the child to hit her head on a table. These events were reported 

to the Grow With Me director, who investigated and concluded 

they did not amount to reportable child abuse.12 Neither the 

director, Cullen’s coworkers, nor anyone else at Grow With Me 

reported Cullen’s behavior to the authorities. Cullen was fired 

from Grow With Me in September 2012.

2. Cullen Is Plac

Central Regis

At trial, the Bells presented evidence that after Cash’s 

death, Cullen was investigated by the Department of Health 

and Human Services and the Omaha Police Department. As 

part of that investigation, Cullen’s former coworkers at Grow 

With Me were interviewed. Based on the former coworkers’ 

reports of Cullen’s actions while employed at Grow with Me, 

the Department of Health and Human Services concluded the 

allegations of abuse were “[a]gency substantiated” and placed 

Cullen on the central child abuse registry.13 An Omaha police 

officer testified at trial, over the childcare centers’ objection, 

12 See id.

13 See § 28-720(3).
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that she would have arrested Cullen for child abuse based on 

the reports of what had occurred at Grow With Me.

The Bells claim that if Cullen’s abusive behavior had been 

timely reported by the childcare centers, then authorities would 

have investigated the reports sooner, and either (1) the investigation would have prompted Cullen to voluntarily stop working in the childcare field before she applied for the position 

with Christopher and Ashley or (2) the investigation would 

have resulted in Cullen’s name being placed on the central 

registry sooner, because the abuse would have been agency 

substantiated or, alternatively, because Cullen would have been 

charged and convicted of child abuse. The Bells contend that 

under any of these causal chains, but for the childcare center’s 

negligence, Christopher and Ashley would not have hired 

Cullen and she would not have been in a position to inflict 

fatal injuries on Cash.

3. Childcare Centers S

Dismissal/Directed Ve

Before trial, the childcare centers filed motions to dismiss 

claiming they had no legal duty to protect Cash from the 

criminal acts of Cullen. The trial court denied these motions, 

reasoning the childcare centers owed a duty to Cash because 

their “alleged conduct of not reporting suspected child abuse 

created a risk of physical harm” to Cash. In making this legal 

determination, the trial court appears to have relied on A.W. v. 

Lancaster Cty. Sch. Dist. 000114 and § 7 of the Restatement 

(Third) of Torts,15 both of which we discuss below.

At the close of the Bells’ case in chief, the childcare centers 

moved for a directed verdict on several grounds. First, the 

childcare centers argued they owed no legal duty to protect 

Cash from Cullen’s criminal acts. Next, the childcare centers 

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

(2010).

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

(2010).
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argued that if they owed a duty, it was not breached, because 

Cullen’s actions were not reasonably foreseeable. And finally, 

the childcare centers argued that even assuming they were negligent in not reporting Cullen’s behavior while in their employ, 

no reasonable fact finder could conclude that the fatal injuries 

inflicted on Cash were proximately caused by the childcare 

centers’ negligence.

The district court sustained the motion for directed verdict 

and dismissed the Bells’ amended complaint against the childcare centers. In explaining its reasoning, the district court commented that if the childcare centers had a duty it was “slim” 

but the court’s primary reason for directing a verdict was proximate cause. The court reasoned that all of the Bells’ causal 

chains relied on facts that were too tenuous and speculative 

to be accepted by any reasonable jury, and the court found no 

reasonable jury could conclude the childcare centers’ conduct 

was a proximate cause of Cash’s death.

After the jury returned its verdict against Cullen, the Bells 

filed this timely appeal, and the childcare centers crossappealed. We granted the parties’ joint motion to bypass, and 

moved this appeal to our docket.

II. ASSIGNMENTS OF ERROR

The Bells assign, restated and consolidated, that the district 

court erred in (1) granting the childcare centers’ motions for 

directed verdict and (2) excluding certain evidence at trial.

On cross-appeal, Grow With Me assigns, restated and consolidated, that the district court erred in (1) finding Grow with 

Me owed a legal duty to either Cash or the Bells and (2) finding it breached any duty. La Petite assigns, restated and consolidated, that the district court erred in (1) finding La Petite 

owed a legal duty to either Cash or the Bells and (2) admitting 

certain evidence.

III. STANDARD OF REVIEW

[1] A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw 
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but one conclusion from the evidence, that is, when an issue 

should be decided as a matter of law.16

[2,3] The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in 

a particular situation.17 When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.18

IV. ANALYSIS

When confronted with an unimaginable loss like the one 

experienced by the Bells, it is natural to ask, What more could 

have been done? But tort law requires that a different question 

be answered first, Was there a legal duty to do something more?

[4,5] In order to prevail in a negligence action, a plaintiff 

must establish the defendant’s duty to protect the plaintiff 

from injury, a failure to discharge that duty, and damages 

proximately caused by the failure to discharge that duty.19 The 

threshold issue in any negligence action is whether the defendant owes a legal duty to the plaintiff.20

Throughout the pendency of this case, the childcare centers 

have argued they cannot be liable in tort for Cash’s death, 

because they had no legal duty to protect him from Cullen. The 

childcare centers unsuccessfully sought a no-duty determination before trial and again during trial. On cross-appeal, the 

childcare centers argue it was error for the trial court to find 

they owed a duty on the facts of this case.

16 United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 

(2015).

17 McReynolds v. RIU Resorts & Hotels, 293 Neb. 345, 880 N.W.2d 43 

(2016). See, also, Durre v. Wilkinson Development, 285 Neb. 880, 830 

N.W.2d 72 (2013); Blaser v. County of Madison, 285 Neb. 290, 826 

N.W.2d 554 (2013).

18 Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017); O’Brien 

v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).

19 McReynolds v. RIU Resorts & Hotels, supra note 17.

20 Id.; Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).
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Before directly addressing the parties’ arguments on the 

threshold question of duty, we review the general duty framework set out in § 7 of the Restatement (Third) of Torts, which 

this court adopted in A.W. v. Lancaster Cty. Sch. Dist. 0001.21

1. Duty Analysis Under Rest

(Third) of Tor

(a) § 7: Duty of Reasonable Care 

When Actor’s Conduct Creates 

Risk of Physical Harm

The cornerstone of the duty analysis under the Restatement 

(Third) is set out in § 7(a): “An actor ordinarily has a duty to 

exercise reasonable care when the actor’s conduct creates a 

risk of physical harm.” Section 7(b) recognizes that even when 

an actor’s conduct creates a risk of harm, there can be “exceptional cases, when an articulated countervailing principle or 

policy warrants denying or limiting liability in a particular 

class of cases [and] a court may decide that the defendant has 

no duty or that the ordinary duty of reasonable care requires 

modification.”

Since adopting the duty analysis of § 7 in 2010,22 this 

court has applied both the general duty rule articulated in 

§ 7(a)23 and the policy-based exception to that rule articulated 

in § 7(b).24 But the instant case presents a question we have not 

fully explored under the risk architecture of the Restatement 

(Third): When does an actor’s conduct create a risk of physical 

harm sufficient to trigger the ordinary duty of reasonable care 

under § 7?

[6] This question is central to the duty framework of the 

Restatement (Third), because the ordinary duty of reasonable 

21 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.

22 See id.

23 See, e.g., Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012); 

Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).

24 See, e.g., McReynolds v. RIU Resorts & Hotels, supra note 17; Kimminau 

v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).
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care under § 7 is expressly conditioned on the actor’s having engaged in conduct that creates a risk of physical harm 

to another.25 And, as the comments to § 7 recognize, “[i]n the 

absence of conduct creating a risk of harm to others, an actor 

ordinarily has no duty of care to another.”26

Although “conduct creating a risk of harm” is the touchstone 

of duty under § 7, that section does relatively little to develop 

the concept. Comments to § 7 explain that “[a]n actor’s conduct creates a risk when the actor’s conduct or course of 

conduct results in greater risk to another than the other would 

have faced absent the conduct.”27 Additional guidance is found 

in the comments to the Restatement (Third) of Torts, § 6, 

which explain:

The conduct that creates the risk must be some affirmative act, even though the negligence might be characterized as a failure to act. For example, an automobile 

driver creates risks to others merely by driving, although 

the negligence may be failing to employ the brakes at 

an appropriate time or failing to keep a proper lookout. By contrast, when the only role of an actor is failing to rescue or otherwise intervene to protect another 

from risks created by third persons or other events, 

courts need to give explicit consideration to the question 

of duty.28

Section 37 of the Restatement (Third) of Torts,29 discussed 

below, also addresses the foundational concept that the duty 

of reasonable care is limited to risks created by the actor’s 

affirmative conduct.

25 Restatement (Third) of Torts, supra note 15, § 7, comment l.

26 Id. at 83.

27 Id., comment o. at 84.

28 Id., § 6, comment f. at 69.

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

§ 37 (2012).
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(b) § 37: No Duty of Care Regarding 

Risks Not Created by 

Actor’s Conduct

[7] Section 37 of the Restatement (Third) provides: “An 

actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a 

court determines that one of the affirmative duties provided in 

§§ 38-44 is applicable.”30 The Restatement (Third) explains the 

relationship between §§ 7 and 37 as follows:

Section 7 of this Restatement states the general principle 

that an actor has a duty of reasonable care when the 

actor’s conduct creates a risk of physical harm to others. 

[Section 37] states a complementary principle: there is no 

duty of care when another is at risk for reasons other than 

the conduct of the actor, even though the actor may be 

in a position to help. As with any no-duty rule, this one 

pretermits consideration of an actor’s negligence. In the 

absence of a duty, the actor cannot be held liable.31

[8-10] The rationale for the no-duty rule under § 37 is premised, in part, on a distinction long recognized in the common law of torts between affirmatively creating a risk of harm 

and merely failing to prevent it.32 As the Reporter for the first 

Restatement of Torts explained:

“There is no distinction more deeply rooted in the common law and more fundamental than that between misfeasance and non-feasance, between active misconduct 

working positive injury to others and passive inaction, a 

failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of 

the defendant . . . .”33

30 Id. at 2.

31 Id., comment b. at 3.

32 Id., Reporters’ Note, comment a.

33 Id. at 8, quoting Francis H. Bohlen, The Moral Duty to Aid Others as a 

Basis of Tort Liability, 56 U. Pa. L. Rev. 217 (1908).
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In theory, the difference between actively creating risk and 

failing to prevent it is fairly clear,34 but in practice, it can 

be difficult to discern.35 Comments to § 37 suggest that one 

way to determine whether an actor’s conduct created a risk 

of harm is to “explore, hypothetically, whether the same risk 

of harm would have existed even if the actor had not engaged 

in the conduct.”36 Similarly, comments in § 7 suggest that to 

determine whether an actor’s conduct has created the risk, it is 

useful to “consider whether, if the actor had never existed, the 

harm would not have occurred.”37

But under § 37, even a determination that a defendant’s 

conduct did not create a risk of physical harm to the plaintiff 

does not necessarily end the duty inquiry. This is because § 37 

recognizes an exception to the no-duty rule when a court has 

determined that another recognized affirmative duty is applicable.38 Generally speaking, these affirmative duties arise from 

special relationships that courts have determined justify the 

imposition of an affirmative duty to act.39

The Restatement (Third) identifies several such special 

relationships40 and cautions the list is not exclusive; courts 

may decide to recognize other areas for affirmative duties 

under § 37, just as they may decide—for reasons of policy or 

principle—to recognize additional no-duty rules under § 7.41

Among others, the Restatement (Third) recognizes an affirmative duty when the actor has a special relationship with the 

34 W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56 (5th 

ed. 1984).

35 See Restatement (Third) of Torts, supra note 29, § 37, comment c.

36 Id. at 4.

37 Restatement (Third) of Torts, supra note 15, § 7, Reporters’ Note, comment 

l. at 103.

38 See Restatement (Third) of Torts, supra note 29.

39 See, e.g., Keeton et al., supra note 34.

40 Restatement (Third) of Torts, supra note 29, §§ 40 to 42.

41 Id., § 37, comment b.
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plaintiff 42 or when the actor has a special relationship with a 

person who poses a risk to the plaintiff.43 The term “‘special 

relationship’ has no independent significance,” but “merely 

signifies that courts recognize an affirmative duty arising out 

of the relationship where otherwise no duty would exist pursuant to § 37.”44

Since 2010, this court has cited approvingly to § 37 in 

several cases.45 Likewise, we have relied on the framework 

of that section in recognizing the principle that even when 

an actor’s conduct does not create a risk of physical harm, 

the actor may still owe an affirmative duty of care based on 

a special relationship.46 For instance, we have recognized and 

adopted several of the special relationship provisions found 

in the Restatement (Third), including the special relationship 

between a school and its students,47 the special relationship 

between an employer and its employees,48 the special relationship between a landlord and its tenants,49 and the special relationship between a custodian and those in its custody.50 All of 

these special relationships have in common the characteristic 

that the actor is in a position to exercise some degree of control 

over the other person.51

42 Id., § 40.

43 Id., § 41.

44 Id., § 40, comment h. at 42.

45 See, Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 899 N.W.2d 

227 (2017); Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012); 

Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).

46 See Rodriguez v. Catholic Health Initiatives, supra note 45.

47 See, Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017); 

A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.

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

49 Peterson v. Kings Gate Partners, 290 Neb. 658, 861 N.W.2d 444 (2015).

50 Rodriguez v. Catholic Health Initiatives, supra note 45; Ginapp v. City of 

Bellevue, supra note 45.

51 See Restatement (Third) of Torts, supra note 29, § 41, comment c.
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For the sake of completeness, we observe that before 

adopting the duty analysis under the Restatement (Third),52

we generally relied on § 315 of the Restatement (Second) of 

Torts53 to analyze whether a defendant had an affirmative duty 

to control the conduct of a third person to prevent them from 

causing physical harm to others.54 Section 315 also focused 

the duty inquiry on whether a special relationship existed, 

providing:

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) 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, or

(b) a special relation exists between the actor and the 

other which gives to the other a right to protection.55

The Restatement (Third) instructs that § 37 is intended to 

replace Restatement (Second) § 315.56 To the extent § 37 

provides the framework for those special relationship rules 

this court has previously recognized in §§ 40 and 41 of the 

Restatement (Third), we find § 37 is consistent with Nebraska’s 

jurisprudence and, to that extent only, adopt its rationale.

Mindful of the duty framework of the Restatement (Third) 

§§ 7 and 37, we now consider the threshold legal question 

presented here: Did the childcare centers owe a legal duty to 

protect Cash from the risk of physical harm by Cullen?

2. Duty Analysis 

Restatement (Thi

The district court found the childcare centers owed a duty 

of reasonable care to Cash under the general duty rule of the 

52 See A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.

53 Restatement (Second) of Torts § 315(a) (1965).

54 See Ginapp v. City of Bellevue, supra note 45.

55 Restatement (Second) of Torts, supra note 53, § 315 at 122.

56 See Restatement (Third) of Torts, supra note 29, comment a.
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Restatement (Third) § 7, reasoning that their failure to report 

Cullen’s suspected child abuse created a risk of physical harm 

to Cash. In the childcare centers’ cross-appeal, they assign this 

as error.

The childcare centers argue, summarized, that (1) they did 

not owe a legal duty to Cash under § 7 of the Restatement 

(Third) and (2) they had no special relationship with either 

Cash or Cullen that would support recognition of an affirmative duty under any other section of the Restatement (Third). 

The childcare centers also argue that Nebraska’s reporting 

statutes57 do not create a private right of action or establish a 

duty in tort.

[11] In responding to the cross-appeal, the Bells expressly 

reject any suggestion that they are claiming Nebraska’s 

reporting statutes create a tort duty or give rise to a private 

right of action, and they do not claim the failure to report 

suspected abuse amounts to negligence per se. Instead, the 

Bells argue—as they have throughout the pendency of this 

case—that the childcare centers owe everyone, including 

Cash, a general duty of reasonable care under § 7 of the 

Restatement (Third). In other words, the Bells do not characterize the childcare centers’ failure to report Cullen’s abuse as 

the source of any legal duty, but instead suggest it is evidence 

the childcare centers breached their general duty of reasonable care. Given the Bells’ position, it is not necessary, in this 

case, to consider whether Nebraska’s reporting statutes create 

a private right of action or an affirmative duty in tort to act in 

protection of another, because that question is not presented. 

An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it.58

It is necessary, however, to address the Bells’ suggestion 

that § 7 of the Restatement (Third), and our adoption of that 

57 §§ 28-718 and 28-720.

58 State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017); State v. Botts, 25 

Neb. App. 372, 905 N.W.2d 704 (2017).
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section in A.W. v. Lancaster Cty. Sch. Dist. 0001,

59 effectively 

recognized a general duty of reasonable care to all others at all 

times. This interpretation of § 7 was advanced at oral argument 

before this court, and it is incorrect.

[12] As explained earlier, § 7 of the Restatement (Third) 

does not recognize a universal duty to exercise reasonable care 

to all others in all circumstances. Rather, it imposes a general 

duty of reasonable care only on an actor whose conduct has 

created a risk of physical harm to another, and it recognizes 

that absent such conduct, an actor ordinarily has no duty of 

care to another.60 The expansion of § 7 urged by the Bells is not 

supported by the Restatement (Third) and is inconsistent with 

our prior decisions applying that section.

[13] Instead, we apply the framework of the Restatement 

(Third) to determine whether the childcare centers owed a legal 

duty to Cash or the Bells. Under that framework, the first step 

is to determine whether the actor’s affirmative conduct created 

a risk of physical harm such that the general duty to exercise 

reasonable care under § 7 is applicable. If no such affirmative conduct exists, then the next step is to determine whether 

any special relationship exists that would impose a recognized 

affirmative duty on the actor with regard to the risks arising 

within the scope of that relationship.

(a) Conduct of Childcare Centers Did 

Not Create Risk of Harm

In addressing the threshold question of legal duty, the trial 

court found the childcare centers’ “conduct of not reporting 

suspected child abuse created a risk of physical harm to Cash.” 

This finding was erroneous for several reasons.

First, by finding the failure to report suspected abuse gave 

rise to a legal duty of reasonable care, the trial court conflated 

the separate concepts of legal duty and breach of that duty. The 

failure to report suspected abuse might present a question of 

59 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 14.

60 See Restatement (Third) of Torts, supra note 15, § 7, comment l.
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breach, but it does not speak to the existence of a legal duty. 

Here, the trial court effectively found that the same failure to 

act both created the legal duty and breached it.

[14-17] The failure to rescue or protect another from harm 

is not conduct creating a risk of harm under § 7 and does not 

give rise to a duty of care under that section. Under the duty 

analysis of the Restatement (Third), the conduct creating the 

risk must be some affirmative act, even though the claimed 

breach can be a failure to act.61 When the only role of the actor 

is failing to intervene to protect others from risks created by 

third persons, the actor’s nonfeasance cannot be said to have 

created the risk.62 Generally speaking, the law does not recognize a duty of care when others are at risk of physical harm for 

reasons other than the conduct of the actor, even if the actor 

may be in a position to help.63 Ordinarily, the failure to act will 

not be the sort of affirmative conduct that gives rise to a duty 

under § 7.

However, at oral argument before this court, the Bells characterized the childcare centers’ actions not as the failure to 

report, but, rather, as the affirmative conduct of hiding Cullen’s 

abuse from authorities. This argument illustrates the sometimes 

fragile distinction between nonfeasance and misfeasance in 

tort jurisprudence. But even if the childcare centers’ conduct 

can be characterized as affirmative, it is insufficient to create 

a legal duty under § 7 of the Restatement (Third), because the 

conduct did not create a risk of physical harm.

There is little doubt that Cullen herself posed a risk of harm 

to children in her care. And while the childcare centers presented evidence that they investigated Cullen’s behavior and 

concluded it did not amount to reportable child abuse, it is 

frankly appalling to think that a childcare center would conceal 

any mistreatment of children in its care. But even if Cullen’s 

61 Id., § 6, comment f.

62 See id.

63 Restatement (Third) of Torts, supra note 29, comment b.
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behavior had been reported and an investigation ultimately 

confirmed abuse, the risk of harm posed by Cullen would 

remain the same. Under § 7, “[a]n actor’s conduct creates a 

risk when the actor’s conduct or course of conduct results in 

greater risk to another than the other would have faced absent 

the conduct.”64 And whatever the childcare centers’ reasons 

may have been for not reporting Cullen’s behavior, their failure 

to do so did not create or increase the risk Cullen posed, rather 

it allowed the risk to continue unabated.

As such, whether framed as the failure to report suspected 

abuse or as the affirmative act of concealing suspected abuse, 

the childcare centers’ conduct did not create or increase the 

risk of physical harm to Cash or the Bells and was insufficient to create a duty under § 7. The trial court erred in finding otherwise.

(b) No Special Relationship or 

Other Affirmative Duty

[18] Even when an actor’s conduct does not create a risk 

of physical harm, the actor may still owe an affirmative 

duty of care based on a special relationship.65 The Bells 

argue that a special relationship between the childcare centers and Cullen created a duty to protect third parties such as 

Cash and the Bells from the risk of harm posed by Cullen. 

Specifically, the Bells contend the special relationship of 

employer and employee created a legal duty under § 41(b)(3) 

of the Restatement (Third).

[19] Section 41 of the Restatement (Third) provides that 

“[a]n 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.”66

Among the relationships identified in § 41 is that of “an 

employer with employees when the employment facilitates 

64 Restatement (Third) of Torts, supra note 15, § 7, comment o. at 84.

65 See Rodriguez v. Catholic Health Initiatives, supra note 45.

66 Restatement (Third) of Torts, supra note 29, § 41(a) at 64-65.
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the employee’s causing harm to third parties.”67 We have 

not expressly adopted the special relationship set out in 

§ 41(b)(3), and do not do so here, because the present facts 

do not support the existence of a special relationship under 

that section.

Comments explaining the duty of reasonable care under § 41 

of the Restatement (Third) observe that all of the special relationships identified in that section are ones in which the actor 

has some degree of control over the other person.68 The Bells 

acknowledge that the employer/employee relationship between 

Cullen and the childcare centers terminated before Cash was 

born, and they do not suggest the childcare centers had any 

control over Cullen after she left their employ. But the Bells 

argue that § 41 still gives rise to a duty in this case, because 

“Cullen’s employment with [the childcare centers] facilitated 

her ability to cause harm to third parties.”69 Specifically, the 

Bells argue that “[a]bsent Cullen’s untarnished records at the 

[childcare centers], Cullen would not have become [Cash’s] 

nanny and, further, would not have abused and, ultimately, 

killed Cash . . . .”70

This argument misconstrues the provisions of § 41. As the 

comments to that section make clear, an employer facilitates 

the employee causing harm to third-parties only when the 

employment “provides the employee access to physical locations, such as the place of employment, or to instrumentalities, 

such as a concealed weapon that a police officer is required to 

carry while off duty, or other means by which to cause harm 

that would otherwise not be available to the employee.”71

If Cullen had been employed by the childcare centers when 

she fatally injured Cash, our analysis under § 41 would be 

67 Id., § 41(b)(3) at 65.

68 See id., comment c.

69 Reply brief on cross-appeal for appellants at 16.

70 Id.

71 Restatement (Third) of Torts, supra note 29, § 41, comment e. at 67.
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very different. But the risk that Cullen posed to Cash and 

the Bells did not arise within the scope of her prior employment with either of the childcare centers, and nothing about 

Cullen’s prior employment provided Cullen with the means, 

location, or instruments used to inflict harm on Cash. The fact 

that Cullen highlighted her prior employment when seeking 

the nanny position with Christopher and Ashley cannot fairly 

be characterized as the childcare centers’ facilitating Cullen’s 

criminal acts.

We find, as a matter of law, that there was no special relationship under § 41(b)(3) between the childcare centers and 

Cullen that could give rise to an affirmative duty to prevent 

Cullen from causing physical harm to Cash after she left 

their employ.

We emphasize the narrow nature of our holding in this case. 

This opinion does not disturb the jury’s verdict against Cullen 

finding her liable in tort for Cash’s death and awarding damages to the estate and the Bells. Nor does this opinion impact 

the duty of a childcare provider to protect children in its care 

from the risk of physical or emotional abuse, or immunize 

childcare providers from the criminal consequences of failing 

to notify authorities of child abuse or neglect under the reporting statutes.72

But on the facts of this case, we cannot find that either § 7 

or § 41(b)(3) of the Restatement (Third) supports the existence 

of a legal duty owed by the childcare centers to Cash or the 

Bells. Indeed, if we were to recognize a legal duty to protect 

others from harm based exclusively on the failure to report 

suspected abuse, such a duty could expose every citizen in 

Nebraska who witnesses possible abuse or neglect and fails to 

report it, to potentially limitless civil tort liability for the future 

criminal acts of abusers over whom they have no control, and 

with whom they have no special relationship.

Therefore, although our reasoning differs from that articulated by the trial court, we affirm the decision to direct a 

72 §§ 28-718 and 28-720.
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verdict in favor of the childcare centers, because, as a matter 

of law, the childcare centers owed no legal duty to Cash or the 

Bells. Because we have resolved this appeal on the threshold 

issue of duty, it is unnecessary to address any of the remaining 

assignments of error.73

V. CONCLUSION

Given the magnitude of the loss suffered by the Bells, we 

realize the result of this appeal may appear harsh, but the law 

does not permit recovery on these facts. As a matter of law, 

the childcare centers cannot be liable in tort for Cash’s death, 

because their conduct did not create a risk of physical harm 

to Cash and because they did not have a special relationship 

with either Cash, the Bells, or Cullen that would give rise to 

an affirmative duty to protect Cash from the risks posed by 

Cullen. Because there can be no liability in tort in the absence 

of a legal duty, we must affirm the trial court’s decision to 

direct a verdict in favor of the childcare centers.

Affirmed

Wright, J., not participating in the decisio

73 See Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739 

N.W.2d 162 (2007).