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Cite as 308 Neb. 538

Angela Rodriguez and Adan Rodriguez, Special 

Administrators of the Estate of Melissa Rodriguez, 

appellants, v. Lasting Hope Recovery Center 

of Catholic Health Initiatives, formerly 

known as Lasting Hope Recovery 

Center of Alegent Creighton 

Health, et al., appellees.

___ N.W.2d ___

Filed March 5, 2021. No. S-19-1116.

1. Employer and Employee: Negligence: Liability. Under the doctrine 

of respondeat superior, an employer may be held vicariously liable 

for the negligence of an employee while acting within the scope of 

employment.

2. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

3. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

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

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

5. Judgments: Appeal and Error. In reviewing questions of law, an 

appellate court has an obligation to reach conclusions independently of 

those reached by the trial court.

6. Trial: Evidence: Appeal and Error. An appellate court reviews the 

factual findings underpinning a trial court’s evidentiary rulings for clear 

error and reviews de novo the court’s ultimate determination to admit 

evidence over an objection.

Nebraska Supreme Court Online Library

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

03/12/2021 01:09 AM CST
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7. Negligence: Damages: Proof. To recover in a negligence action, a 

plaintiff must show that the defendant owed a duty toward the plaintiff, 

breached that duty, and caused damages.

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

defendant owed a duty to the plaintiff.

9. ____. An actor whose conduct has not created a risk of physical harm 

to another has no duty of care to the other unless an affirmative duty 

created by another circumstance is applicable or 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.

10. ____. The special relationship between a custodian and persons in its 

custody gives rise to an affirmative duty of care by the custodian to 

third persons.

11. ____. A custodial relationship need not be full-time physical custody 

giving the custodian complete control over the other person. But 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.

12. Negligence: Physician and Patient: Mental Health: Liability. 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 identifiable 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 and 

shall be discharged by the psychiatrist if reasonable efforts are made to 

communicate the threat to the victim or victims and to a law enforcement agency.

13. Statutes: Judicial Construction: Legislature: Intent: Presumptions.

Where a statute has been judicially construed and that construction has 

not evoked an amendment, it will be presumed that the Legislature has 

acquiesced in the court’s determination of the Legislature’s intent.

14. Negligence: Mental Health. 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.

15. ____: ____. A duty to warn and protect arises only if a serious threat of 

physical harm was actually communicated to the psychiatrist.

16. Courts: Legislature. A court should proceed cautiously when its decision would undermine a policy judgment of the Legislature.

17. Negligence: Mental Health. For a duty to warn or protect to arise, 

the requirement of actual communication means that the patient must 
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verbally express or convey to the psychiatrist his or her prediction to 

commit physical violence against himself, herself, or a reasonably identifiable victim or victims.

18. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

19. Negligence. The common law’s ordinary duty of care requires actors to 

exercise reasonable care.

20. ____. Whether an actor exercised reasonable care depends on whether 

a reasonable person of ordinary prudence would have done more in the 

same or similar circumstances.

21. Negligence: Juries. Where reasonable minds can disagree about whether 

reasonable care was followed, the question is generally left to the jury.

22. Negligence: Liability: Public Policy. When an articulated countervailing principle or policy warrants denying or limiting liability in a 

particular class of cases, a court may decide that, as a matter of law, 

the defendant has no duty or that the ordinary duty of reasonable care 

requires modification.

23. Judgments: Negligence: Public Policy. A determination of no duty as 

a matter of law should be grounded in public policy and based upon 

legislative facts, not adjudicative facts arising out of the particular circumstances of the case.

24. Judgments: Negligence: Liability: Public Policy. A determination of 

no duty as a matter of law should be explained and justified based on 

articulated policies or principles that justify exempting the actor from 

liability or modifying the ordinary duty of reasonable care.

25. Negligence: Physician and Patient: Mental Health. Psychiatrists owe 

no duty as a matter of law to third parties for physical injuries caused 

by a patient who has not actually communicated a threat of physical 

violence. And once such an actual communication has taken place, any 

duty to warn or protect on the part of the psychiatrist can be discharged 

by reasonable efforts to communicate the threat to the victim and a law 

enforcement agency.

26. Trial: Evidence: Appeal and Error. The admission or exclusion of 

evidence is not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party.

27. ____: ____: ____. Erroneous exclusion of evidence does not require 

reversal if the evidence would have been cumulative and other relevant 

evidence, properly admitted, supports the trial court’s finding.

Appeal from the District Court for Douglas County: James 

T. Gleason, Judge. Affirmed.
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Brian E. Jorde, of Domina Law Group, P.C., L.L.O., for 

appellants.

Cathy S. Trent-Vilim, Denise M. Destache, and Patrick G. 

Vipond, of Lamson, Dugan & Murray, L.L.P., for appellee 

Lasting Hope Recovery Center of Catholic Health Initiatives.

Mary M. Schott and Joseph S. Daly, of Evans & Dixon, 

L.L.C., for appellee UNMC Physicians.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, 

and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

This is a tort action brought to recover damages for the 

wrongful death of Melissa Rodriguez, who was killed by her 

ex-boyfriend, Mikael Loyd. Loyd was a patient for 6 days at 

Lasting Hope Recovery Center (Lasting Hope), a mental health 

care facility in Omaha, Nebraska, where he was treated by 

Dr. Jeana Benton, a psychiatrist employed by the University 

of Nebraska Medical Center Physicians (UNMC Physicians). 

Hours after Lasting Hope had discharged Loyd pursuant to 

Benton’s order, Loyd strangled Melissa to death.

As special administrators for Melissa’s estate, her parents, 

Angela Rodriguez and Adan Rodriguez (Special Administrators), 

brought a wrongful death action against Lasting Hope and 

UNMC Physicians for failing to warn and protect Melissa from 

Loyd. The district court granted summary judgment to Lasting 

Hope and UNMC Physicians on the basis that they owed no 

legal duty to Melissa. We affirm.

II. FACTUAL BACKGROUND

On August 8, 2013, Loyd visited the Omaha Police 

Department (OPD) headquarters, stating that he wished to 

share information about his father’s 1995 murder. He told 

OPD officers that he blamed his mother for the murder and 

that he sought OPD’s help to have her killed in retaliation. 
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The OPD officers called Loyd’s grandmother, who explained 

that Loyd was mentally ill and “not on his medications.” 

Loyd’s grandmother confirmed that in the past, she had also 

heard Loyd threaten to kill his mother. The OPD officers next 

called Loyd’s mother, who lived in North Carolina, to warn her 

of Loyd’s threats.

After a brief investigation, the OPD officers discovered an 

outstanding arrest warrant for Loyd, attributable to an alleged 

June 11, 2013, misdemeanor assault and battery of his girlfriend, Melissa. The OPD officers acknowledged that they 

could arrest Loyd pursuant to the warrant, but they expressed 

concern that if Loyd then made bond before he could obtain 

mental health treatment, he would again present a serious 

danger to the public. The OPD officers instead placed Loyd 

under emergency protective custody and transported him to 

Lasting Hope. 1

At Lasting Hope, Benton was assigned as Loyd’s treating 

psychiatrist. During an initial evaluation on August 9, 2013, 

Benton noted that Loyd “denies symptoms consistent with 

bipolar disorder . . . but appears extremely paranoid, distractible and at times appears to be responding to internal stimuli.” 

She determined that Loyd was “very paranoid, homicidal and 

delusional and [a] risk for harm to others were he to be outside 

the hospital environment at this time.” Benton recommended 5 

to 7 days’ “hospitalization for stabilization and safety.”

Loyd remained at Lasting Hope from August 8 to 14, 2013. 

During this time, he called his mother and Melissa using 

Lasting Hope’s landline telephone. Melissa twice visited Loyd 

at Lasting Hope. During her second visit, Melissa told Loyd 

that she no longer wished to be his girlfriend.

Based on statements that Benton had heard in which Loyd 

had specifically expressed a desire to kill his mother, Lasting 

Hope staff called Loyd’s mother and warned her of his threats. 

But because Loyd had never expressed a similar threat against 

Melissa, she was not warned.

1 See Neb. Rev. Stat. § 71-919 (Reissue 2018).
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On August 12, 2013, Loyd dialed the 911 emergency dispatch service to turn himself in to police on his outstanding 

arrest warrant. OPD officers arrived at Lasting Hope that 

afternoon. Lasting Hope staff informed the OPD officers that 

Benton wished to continue to hold Loyd for further mental 

health evaluation. Apparently accepting Benton’s determination 

that Loyd still needed mental health treatment at Lasting Hope, 

the OPD officers did not arrest Loyd at that time.

On August 14, 2013, Benton evaluated Loyd and determined 

that he was ready to be discharged. According to Benton, Loyd 

had been compliant with his medication for 6 days. Although 

still delusional about his father’s murder, Loyd no longer 

expressed an intent to harm his mother. He reported to Benton 

that he “had a good conversation” with his mother over the 

telephone, and he committed to “not act to harm anyone.” 

Benton concluded that Loyd was no longer a risk to himself or 

to others. After providing Loyd with a supply of medication and 

scheduling a followup appointment at Lasting Hope, Benton 

discharged Loyd at 1:40 p.m. Neither Benton nor Lasting Hope 

staff notified OPD or Melissa of Loyd’s discharge.

After Loyd was discharged, he placed numerous calls to 

Melissa from his cell phone. Melissa was at home with her 

sister, who urged Melissa to ignore Loyd’s calls. But eventually Melissa answered one. Loyd told her that he had been 

discharged from Lasting Hope. Melissa agreed to meet Loyd 

that evening at a park.

Melissa’s body was discovered the next day, August 15, 

2013. Investigators concluded that Loyd had strangled Melissa. 

Loyd had returned to Lasting Hope, and OPD officers arrested 

him there. Loyd was initially prosecuted for murdering 

Melissa, but in September 2013, he was found not competent 

to stand trial.

The present action was initiated by the Special Administrators, 

Melissa’s parents, in the district court for Douglas County. 

According to the amended complaint, parties representing two 

groups had negligently caused Melissa’s wrongful death.
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[1] The first group, collectively referred to as the “UNMC 

Defendants,” consisted of UNMC Physicians; the Noll 

Company; and two employees of UNMC Physicians, “Jane Doe 

Physician #1” and “Jane Doe Nurse #1.” The second group, 

collectively referred to as the “Lasting Hope Defendants,” 

consisted of Catholic Health Initiatives, doing business as CHI 

Health; Alegent Health-Bergan Mercy Health System, doing 

business as Lasting Hope; and two employees of Lasting Hope, 

“John Doe #1” and “John Doe #2.” We note that certain of 

these entities were grouped together pursuant to the doctrine 

of respondeat superior, which allows an employer to be held 

vicariously liable for the negligence of an employee while acting within the scope of employment. 2

The defendants filed motions to dismiss for failing to state 

a claim upon which relief can be granted. 3 After a hearing, the 

district court concluded that the issue raised by the motions 

to dismiss was whether the defendants owed Melissa a duty. 

Holding that the Special Administrators had failed to allege 

sufficient facts to show that the UNMC Defendants or the 

Lasting Hope Defendants owed Melissa any duty, the district 

court ordered the complaint dismissed.

We reviewed the Special Administrators’ first appeal in 

Rodriguez v. Catholic Health Initiatives (Rodriguez I ) and 

reversed the decision of the district court and remanded the 

cause. 4 The Special Administrators’ claim against the UNMC 

Defendants was sufficient to survive a motion to dismiss based 

on allegations, which we accepted as true, that Loyd had “‘sufficiently communicated’” to Benton that he intended to kill 

Melissa. 5 And with respect to the Lasting Hope Defendants, 

the Special Administrators had “alleged sufficient facts . . . , 

2 See Cruz v. Lopez, 301 Neb. 531, 919 N.W.2d 479 (2018).

3 See Neb. Ct. R. Pldg. § 6-1112(b)(6).

4 Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 899 N.W.2d 227 

(2017).

5 Id. at 15, 899 N.W.2d at 237.
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which we accept[ed] as true, to show that Loyd was in Lasting 

Hope’s custody and that therefore, such facts g[a]ve rise to 

a duty.” 6

After our remand and some discovery, the defendants moved 

for summary judgment. A hearing on defendants’ motions was 

set for Monday, October 7, 2019. On Sunday, the day before 

the hearing, the Special Administrators served on the defendants six affidavits, 526 pages in all, in opposition to summary 

judgment. The defendants objected that these affidavits were 

untimely served, lacked proper foundation, and consisted of 

hearsay. After taking the matter under advisement, the district 

court ultimately sustained the defendants’ objections, writing 

in its order that “[t]he material objected to has been ignored by 

the [c]ourt in its determination herein.”

The district court then granted the defendants’ motions for 

summary judgment, concluding that the undisputed evidence 

showed that none of the defendants owed any duty to Melissa. 

According to the district court, the UNMC Defendants owed 

no duty to warn Melissa because Loyd had never actually 

communicated to Benton that he intended to harm Melissa. 

And the Lasting Hope Defendants owed no duty to protect 

Melissa because by the time of her murder, Loyd had already 

been discharged from Lasting Hope pursuant to Benton’s 

recommendation.

The Special Administrators filed a timely appeal. 7

III. ASSIGNMENTS OF ERROR

The Special Administrators assign, consolidated and restated, 

that the district court erred by (1) granting summary judgment 

to the UNMC Defendants and the Lasting Hope Defendants 

on the basis that they did not owe a duty to warn and protect 

Melissa from Loyd and (2) excluding six affidavits in opposition to the defendants’ motions for summary judgment.

6 Id. at 12, 899 N.W.2d at 236.

7 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).
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IV. STANDARD OF REVIEW

[2,3] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law. 8 An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 9

[4,5] The question whether a legal duty exists for actionable 

negligence is a question of law dependent on the facts in a particular situation. 10 In reviewing questions of law, an appellate 

court has an obligation to reach conclusions independently of 

those reached by the trial court. 11

[6] An appellate court reviews the factual findings underpinning a trial court’s evidentiary rulings for clear error and 

reviews de novo the court’s ultimate determination to admit 

evidence over an objection. 12

V. ANALYSIS

As we have stated before, when confronted by an unimaginable loss such as what the Special Administrators have experienced with respect to the life of Melissa, their daughter, it is 

natural to ask, “What more could have been done?” 13 But tort 

law requires that we begin with a different question: whether a 

legal duty existed to do anything more. 14

8 Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).

9 Id.

10 Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).

11 See id.

12 See AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 

212 (2020).

13 Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136, 146, 907 

N.W.2d 705, 713 (2018).

14 See id.
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1. Duty

[7,8] To recover in a negligence action, a plaintiff must 

show that the defendant owed a duty to the plaintiff, breached 

that duty, and caused damages as a result. 15 The threshold 

issue in any negligence action, and the question presented 

here, is whether the defendants owed a duty to the plaintiffs. 16

Specifically at issue is the UNMC Defendants’ and the Lasting 

Hope Defendants’ duty to warn and protect Melissa. The 

Special Administrators allege that the defendants’ breach of 

this duty proximately caused Melissa’s wrongful death.

Until 2012, when discussing a defendant’s duty to control 

the actions of a third party, we relied on the Restatement 

(Second) of Torts, 17 which provides that there is generally no 

duty to control the conduct of a third person to prevent him 

or her from causing physical harm to another unless “‘a special relationship exists between the actor and the third person 

which imposes a duty upon the actor to control the third person’s conduct.’” 18 For example, “‘[o]ne who takes charge of 

a third person whom he [or she] 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 [or her] from doing such harm.’” 19

[9] Since 2012, which was after the Restatement (Third) of 

Torts 20 was published, we have generally relied on it, instead, 

when considering the duty to control the actions of a third 

15 See Sundermann, supra note 10, 306 Neb. at 763-64, 947 N.W.2d at 503.

16 See id.

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

18 Bartunek v. State, 266 Neb. 454, 459, 666 N.W.2d 435, 440 (2003) 

(quoting Restatement (Second), supra note 17).

19 Id. at 462, 666 N.W.2d at 441 (quoting Restatement (Second), supra note 

17, § 319).

20 See 1 Restatement (Third) of Torts: Liability for Physical and Emotional 

Harm (2010) and 2 Restatement (Third) of Torts: Liability for Physical 

and Emotional Harm (2012).
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party. 21 It provides similarly that an actor whose conduct has 

not created a risk of physical harm to another has no duty of 

care to the other unless an affirmative duty created by another 

circumstance is applicable. 22 However, “‘[a]n actor in a special 

relationship with another owes a duty of reasonable care to 

third persons with regard to risks posed by the other that arise 

within the scope of the relationship.’” 23 Specifically, § 41(b) 

of the Restatement (Third) identifies four special relationships 

that give rise to such a duty: “(1) a parent with dependent children, (2) a custodian with those in its custody, (3) an employer 

with employees when the employment facilitates the employee’s causing harm to third parties, and (4) a mental-health professional with patients.” 24

As the parties agree, the special relationship here, if any, 

was one based on custody. We have never before adopted 

§ 41(b) of the Restatement (Third) recognizing that the relationship between a mental-health professional and patients 

gives rise to a generalized duty of reasonable care, nor do we 

do so here.

[10,11] We have twice before recognized that having custody over another person creates a special relationship. 25 In 

Rodriguez I, we adopted § 41(b)(2) of the Restatement (Third) 

as “consistent with our jurisprudence and prudent.” 26 A custodial relationship “need not be ‘full-time physical custody giving the custodian complete control over the other person.’” 27

But “to the extent that ‘there is some custody and control 

of a person posing dangers to others, the custodian has an 

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

22 Id.

23 Id. at 1034, 809 N.W.2d at 492 (quoting 2 Restatement (Third), supra note 

20, § 41(a)). See, also, 2 Restatement (Third), supra note 20, § 37.

24 2 Restatement (Third), supra note 20, § 41(b) at 65.

25 See, Rodriguez I, supra note 4; Ginapp, supra note 21.

26 Rodriguez I, supra note 4, 297 Neb. at 12, 899 N.W.2d at 236.

27 Id. (quoting 2 Restatement (Third), supra note 20, § 41, comment f.).
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affirmative duty to exercise reasonable care, consistent with the 

extent of custody and control.’” 28

Based on this rule of duty in a custodial special relationship, 

we concluded in Rodriguez I that the Special Administrators 

had alleged sufficient facts to survive a motion to dismiss. 

In Rodriguez I, on review of the district court’s order granting dismissal, we accepted as true the Special Administrators’ 

allegations in the amended complaint that Loyd was admitted 

to Lasting Hope on August 8, 2013, under emergency protective custody; held involuntarily there for 6 days, during which 

Loyd sufficiently communicated to Benton threats of physical 

violence against Melissa; and allowed to “le[ave] Lasting Hope 

on his own, without supervision, being questioned or stopped, 

and without Lasting Hope even noticing he was gone.” If facts 

supported these allegations, we found that such facts could 

have given rise to the defendants’ duty to warn and protect 

Melissa from Loyd.

After this court’s remand and some discovery, however, 

the district court granted summary judgment to the UNMC 

Defendants and the Lasting Hope Defendants. The district 

court found uncontroverted evidence that rebutted two of the 

Special Administrators’ essential allegations in the amended 

complaint. Specifically, the district court held first that because 

Loyd had never communicated to Benton or other Lasting 

Hope staff that he intended to harm Melissa, no duty to warn 

her could arise. Second, the district court held that because, by 

the time of Melissa’s murder, Loyd had been discharged from 

Lasting Hope “pursuant to the opinion of [Benton,] a qualified 

psychiatrist,” any custodial duty to protect Melissa had terminated. We review each holding in turn.

(a) Duty to Warn

The Special Administrators’ first argument against summary judgment concerns the very language of this court’s 

28 Id.
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precedent. They concede that the facts do not support their 

allegation in the amended complaint that Loyd actually communicated to Benton any intent to harm Melissa. Yet, the 

Special Administrators invite us to “reconsider” whether such 

actual communication is necessary. 29 They contend that reconsideration of this requirement would allow this court to “depart 

from the current narrow and punitive application that liability 

for failure to warn can only exists [sic] if the eventual assailant 

or murder[er] directly so states their future plans of murder or 

mayhem to their psychiatrist or mental health provider.” 30

We determined the extent of psychiatrists’ duty to warn and 

protect third-party victims from their patients in Munstermann 

v. Alegent Health. 31 There, the family of a woman murdered 

by her boyfriend sued the hospital and psychiatrist that had 

treated the boyfriend in inpatient care. The family alleged that 

the psychiatrist had proximately caused the woman’s death by 

failing to take reasonable measures to warn and protect her 

from the boyfriend’s violent behavior and homicidal ideation. 

The jury was instructed that this was an action based upon a 

claim of malpractice and that the question was whether the 

defendants had exercised reasonable care consistent with the 

circumstances to protect third parties from the boyfriend in 

inpatient treatment.

But we specifically found that those jury instructions were 

inconsistent with principles set forth by our Legislature. 32 We 

noted that although no statute explicitly addressed the duty 

of psychiatrists to warn and protect, other statutes addressed 

such duty for mental health professionals and psychologists, 

respectively. 33 Namely, the Mental Health Practice Act 34 and 

29 Brief for appellants at 25.

30 Id.

31 Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 (2006).

32 Id.

33 Id.

34 See Neb. Rev. Stat. §§ 38-2102 to 38-2139 (Reissue 2016 & Cum. Supp. 

2020).
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the Psychology Practice Act 35 each contain limits on their duty 

in connection with treating patients with mental illness.

These limits were statutorily enacted in response to the 

California Supreme Court’s decision in Tarasoff v. Regents 

of University of California,

 36 which held that a psychotherapist who knows or should know that a patient poses a serious 

danger of violence to a third party owes a duty to exercise 

reasonable care to warn and protect that third party. According 

to Tarasoff, a therapist’s relationship with a patient affords the 

therapist control and authority over the patient in a way that 

closely resembles a custodian’s control and authority over a 

person in custody. This special relationship thus requires the 

therapist to exercise reasonable care, depending on the circumstances, toward potential third-party victims of the patient. 37

For example, if the identity of a patient’s potential victim is 

known, reasonable care might require the therapist to, at least, 

warn the victim; but if no victim is reasonably identifiable, 

reasonable care might require the therapist to take other protective precautions, such as maintaining or asserting custody over 

the patient or warning law enforcement or other appropriate 

officials of the danger. 38

Like legislatures in many other states, the Nebraska 

Legislature moved quickly after Tarasoff to circumvent a similarly sweeping rule in Nebaska and, instead, to restrict therapists’ duty to warn and protect potential victims of patients’ 

experiencing mental illness. 39 Sections 38-2137(1) and 

38-3132(1) limited liability for any mental health practitioner 

35 See Neb. Rev. Stat. §§ 38-3101 to 38-3133 (Reissue 2016 & Cum. Supp. 

2020).

36 Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 

334, 131 Cal. Rptr. 14 (1976).

37 See id.

38 See id. See, also, John G. Fleming & Bruce Maximov, The Patient or His 

Victim: The Therapist’s Dilemma, 62 Cal. L. Rev. 1025 (1974).

39 See Munstermann, supra note 31.
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or psychologist whose patient communicated to him or her 

a serious threat of physical violence against himself, herself, or 

another reasonably identifiable victim. 40

[12] In Munstermann, we concluded that although neither 

of these statutes explicitly addressed the potential liability of 

psychiatrists, there was no rational basis for the Legislature to 

have intended a psychiatrist’s duty to be bound by a different 

standard. Thus, under the Munstermann rule:

[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 identifiable 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 . . . and shall 

be discharged by the psychiatrist if reasonable efforts are 

made to communicate the threat to the victim or victims 

and to a law enforcement agency. 41

[13] Where a statute has been judicially construed and 

that construction has not evoked an amendment, it will be 

presumed that the Legislature has acquiesced in the court’s 

determination of the Legislature’s intent. 42 By now, more than 

14 years have passed since our decision in Munstermann, and 

in that time, the Legislature has not amended either of the 

statutes on which the Munstermann rule is based. 43 Nor has 

the Legislature adopted an alternative duty of psychiatrists to 

warn and protect third parties from the psychiatrists’ patients. 

As such, we view the Munstermann rule as having received 

legislative acquiescence.

40 See id.

41 Id. at 847, 716 N.W.2d at 85.

42 Drought v. Marsh, 304 Neb. 860, 937 N.W.2d 229 (2020).

43 See §§ 38-2137(1) and 38-3132(1).
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[14,15] Since Munstermann, we have clarified that certain 

language in the Munstermann rule is critical to properly limit 

psychiatrists’ duty to third parties. “‘[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.’” 44 As 

a result, the “‘question is whether a serious threat of physical 

harm was actually “communicated” to the psychiatrist.’” 45

Because we do not find this line of cases to be in error, 

we reject the Special Administrators’ invitation to reconsider 

our requirement of actual communication. The Munstermann

rule is based on two statutes, duly enacted by the Nebraska 

Legislature. Like the Munstermann rule, both statutes explicitly 

require that for a duty to warn to arise, a serious threat of physical violence against a reasonably identifiable victim be “communicated” to a psychologist or mental health practitioner. 46 To 

negate the requirement that a threat actually be communicated 

to a psychiatrist would undermine the statutes on which the 

Munstermann rule is based.

Moreover, the statutes on which Munstermann is based were 

drafted to reflect the Legislature’s reasoned policy judgment. 

The language in §§ 38-2137(1) and 38-3132(1) represents the 

Legislature’s effort to strike the appropriate balance between 

assuring patients that what they disclose to a mental health 

care provider will be held in confidence and protecting the 

safety of third parties the patient intends to harm. 47 “In other 

words, the statutory language is the result of [the Legislature’s] 

balancing risk and utility, considering the magnitude of the 

risk, relationship of the parties, nature of the risk, opportunity 

and ability to exercise care, foreseeability of the harm, and 

44 Rodriguez I, supra note 4, 297 Neb. at 18, 899 N.W.2d at 239 (quoting 

Munstermann, supra note 31) (emphasis supplied).

45 Id.

46 See §§ 38-2137(1) and 38-3132(1).

47 See Munstermann, supra note 31.
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public policy interest in the proposed solution.” 48 Because 

these policy factors weighed equally for psychologists and 

mental health practitioners as for psychiatrists, we found in 

Munstermann that “[t]he Legislature has made a public policy 

determination with respect to the Tarasoff duty that this court 

is bound to respect” and apply to psychiatrists, as well. 49

[16] We “‘“‘proceed cautiously’”’” when our decision 

would undermine a policy judgment of the Legislature, our 

coequal branch. 50 And the Special Administrators have failed to 

show that it would be proper to depart from the Legislature’s 

reasoned judgment here. Accordingly, we decline to do so.

[17] Applying our precedent, we agree with the district 

court’s analysis of the defendants’ duty to warn. As the district 

court found, the Munstermann rule requires actual communication. 51 The term “actual communication” is not defined by statutes. In this context, we construe its plain text to mean that the 

patient must verbally express or convey to the psychiatrist his 

or her prediction to commit physical violence against himself, 

herself, or a reasonably identifiable victim or victims. 52

Here, it is uncontroverted that Loyd never actually communicated to Benton that he intended to harm Melissa. We noted 

in Rodriguez I that if the Special Administrators’ claim were 

supported by facts that Loyd had communicated to Benton a 

serious threat of physical violence against Melissa, those facts 

could give rise to a duty to warn. 53 But the undisputed facts 

now in the record do not support that allegation.

Indeed, the only reasonably identifiable victim whom 

Loyd conveyed an intent to physically harm was his mother. 

48 Id. at 847, 716 N.W.2d at 84.

49 Id. at 846, 716 N.W.2d at 84. See, Tarasoff, supra note 36.

50 State ex rel. Veskrna v. Steel, 296 Neb. 581, 599, 894 N.W.2d 788, 801 

(2017).

51 Rodriguez I, supra note 4.

52 See Fredericks v. Jonsson, 609 F.3d 1096 (10th Cir. 2010).

53 See Rodriguez I, supra note 4.
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During Benton’s evaluations, Loyd specifically expressed an 

intention to kill his mother in retaliation for his father’s death. 

Based on these verbal expressions of threats, Benton ordered 

Lasting Hope staff to call Loyd’s mother to warn her. And by 

the time Benton had ordered Loyd’s discharge, she knew that 

OPD was aware of Loyd’s threats of physical violence against 

his mother, because Lasting Hope staff had discussed the 

threats with OPD officers, who also warned Loyd’s mother.

As the Special Administrators now concede, Loyd never 

expressed to Benton or anyone else at Lasting Hope that he 

intended to harm Melissa. He never identified Melissa by 

name or even by description in connection with his expression 

of homicidal ideation. And to the extent that the outstanding 

arrest warrant identified Melissa as the victim of Loyd’s past 

misconduct, it did not amount to an actual communication by 

Loyd, nor did it predict that he would commit physical violence against Melissa in the future. As a result, no duty to warn 

Melissa was triggered under Munstermann.

 54

The Special Administrators have failed to raise a dispute 

about whether Loyd actually communicated to Benton that he 

wished to physically harm Melissa. Instead, the record supports 

the UNMC Defendants’ and the Lasting Hope Defendants’ 

argument for summary judgment that he did not. Accordingly, 

we affirm the decision of the district court to grant summary 

judgment for the defendants on the issue of duty to warn.

(b) Duty to Protect

As to the issue of duty to protect, the district court granted 

summary judgment to the defendants by reasoning that to 

the extent that they were Loyd’s custodians, they did not 

breach their duty of reasonable care toward Melissa. The district court reached this conclusion based on undisputed facts 

that at the time of Melissa’s murder, Loyd had already been 

discharged “pursuant to the opinion of [Benton,] a qualified 

psychiatrist.” Given that any custodianship over Loyd had 

54 See Munstermann, supra note 31.
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thus terminated, the district court held that no new duty of 

reasonable care could arise to require Benton and Lasting 

Hope to protect Melissa, a third party. Accordingly, summary 

judgment was granted for the defendants on the issue of duty 

to protect.

In arguing that summary judgment on this issue was in 

error, the Special Administrators allege that the district court 

viewed the relevant time period too narrowly. According 

to the Special Administrators, instead of focusing only on 

the period directly before Melissa’s death, the district court 

should have found that the defendants were negligent because 

of their actions and omissions before Loyd was discharged. 

The Special Administrators cite the testimony of Dr. Bruce 

Gutnik that in his medical judgment, Benton’s order to discharge Loyd was premature. The defendants dispute that Loyd 

was ever in Lasting Hope’s custody because, they claim, he 

remained there voluntarily. Based on this factual dispute, 

the Special Administrators contend that summary judgment 

was inappropriate.

We agree that the question of whether Loyd was ever in 

Lasting Hope’s custody for purposes of the special relationship under the Restatement (Third), § 41(b)(2), 55 is a genuine 

factual dispute here. 56 But we disagree that it is material to the 

disposition of this case.

[18] In the summary judgment context, a fact is material 

only if it would affect the outcome of the case. 57 But here, 

even assuming arguendo that Loyd was in Lasting Hope’s custody while he was a patient there, the undisputed facts show 

that Melissa’s death cannot be legally attributed to a breach 

of duty by the defendants. We concur with the decision of 

the district court to grant summary judgment to the defendants, although we reach this decision not based on a lack of 

55 See 2 Restatement (Third), supra note 20, § 41(b)(2).

56 See Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 

(2019).

57 Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).
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custody but instead because Loyd did not communicate to the 

defendants that he intended to physically injure Melissa.

[19-21] As we stated above, our common law generally 

imposes on actors an affirmative duty, to the extent of their 

custody over another person, to protect third parties from 

the person in custody. 58 This common-law duty requires the 

actor to exercise reasonable care consistent with the extent 

of custody and control. 59 We ask, what would a reasonable 

person of ordinary prudence have done in the same or similar 

circumstances? 60 Where reasonable minds can disagree about 

whether reasonable care was followed, we generally leave the 

question to the jury. 61

[22] But sometimes reasonable minds cannot disagree about 

whether an actor exercised reasonable care. When an articulated 

countervailing principle or policy warrants denying or limiting 

liability in a particular class of cases, a court may decide that, 

as a matter of law, the defendant has no duty or that the ordinary duty of reasonable care requires modification. 62

[23,24] A determination of no duty as a matter of law should 

be grounded in public policy and based upon legislative facts, 

not adjudicative facts arising out of the particular circumstances 

of the case. 63 And such determination should be explained and 

justified based on articulated policies or principles that justify 

exempting the actor from liability or modifying the ordinary 

duty of reasonable care. 64

58 See Rodriguez I, supra note 4.

59 See id.

60 See id.

61 See Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019). See, 

also, 1 Restatement (Third), supra note 20, § 8.

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

(2016). See, also, 1 Restatement (Third), supra note 20, § 7(b).

63 See McReynolds, supra note 62.

64 Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015). See, 

also, 1 Restatement (Third), supra note 20, § 7, comment j.
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Here, there is such a countervailing policy to warrant a finding that, as a matter of law, no duty to protect was triggered. 

As analyzed above, the first duty implicated by Munstermann

is the psychiatrist’s duty to warn. 65 But by its plain language, 

the Munstermann rule applies equally to the psychiatrist’s duty 

to protect.

In each clause of the Munstermann rule that limits psychiatrists’ duty to warn, there is an equal limitation on their duty to 

protect. For example, psychatrists’ liability is limited 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” unless the patient has communicated to the psychiatrist a serious threat of physical harm. 66

And “[t]he duty to warn of or take reasonable precautions to 

provide protection from violent behavior shall arise only under 

those limited circumstances . . . .” 67 To the extent that any 

duty to warn and protect does arise, it “shall be discharged by 

the psychiatrist if reasonable efforts are made to communicate the threat to the victim or victims and to a law enforcement agency.” 68

As recounted above, with the Legislature’s acquiescence, 

we adapted these statements in the Munstermann rule directly 

from the Legislature’s identical limitations on mental health 

practitioners’ and psychologists’ liability. 69 The Legislature 

explicitly enacted these limitations in response to Tarasoff and, 

with them, fashioned a state policy “to preempt an expansive 

ruling [in Nebraska] that a therapist can be held liable for 

the mere failure to predict potential violence by his or her 

65 See Munstermann, supra note 31.

66 Munstermann, supra note 31, 271 Neb. at 847, 716 N.W.2d at 85 (emphasis 

supplied).

67 Id. (emphasis supplied).

68 Id.

69 See §§ 38-2137(1) and 38-3132(1).
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patient.” 70 Just as failure to warn claims are premised in part 

on psychiatrists’ duty to predict their patients’ future violence, 

so too are failure to protect claims. Accordingly, we view the 

Munstermann rule as an accurate determination of state policy 

with respect to the duty of psychiatrists to warn—and protect—third parties from their patients’ violent behavior.

Our survey of other jurisdictions indicates that we are far 

from alone in applying a limiting rule to the duty to warn and 

protect in this way. Except for those jurisdictions that have specifically stated in court rule 71 or statute 72 that the duties to warn 

and protect should be disengaged from each other and analyzed 

separately, most jurisdictions have opted to analyze the duty to 

warn and protect as one, like Tarasoff did. 73 For example, the 

legislatures in both Louisiana and Michigan codified statutes 

nearly identical to the Munstermann rule, 74 and appellate courts 

have interpreted the statutes to foreclose the liability of therapists for failing to warn and protect third parties from patients 

unless a patient has communicated to the therapist a reasonably 

identifiable victim. 75

[25] Likewise, in accord with this state’s determination of 

policy set forth in Munstermann, we apply a rule of no duty 

70 Munstermann, supra note 31, 271 Neb. at 846, 716 N.W.2d at 84 (citing 

Ewing v. Goldstein, 120 Cal. App. 4th 807, 15 Cal. Rptr. 3d 864 (2004)). 

See Tarasoff, supra note 36.

71 See, e.g., Texas Home Management, Inc. v. Peavy, 89 S.W.3d 30 (Tex. 

2002).

72 See, e.g., Paul S. Appelbaum et al., Statutory Approaches to Limiting 

Psychiatrists’ Liability for Their Patients’ Violent Acts, 146 Am. J. 

Psychiatry 821 (1989) (citing the American Psychiatric Association’s 

model statute).

73 See Alan R. Felthous & Claudia Kachigan, To Warn and to Control: Two 

Distinct Legal Obligations or Variations of a Single Duty to Protect? 19 

Behav. Sci. & L. 355 (2001). See, also, Tarasoff, supra note 36.

74 See, La. Stat. Ann. § 9:2800.2 (2018); Mich. Comp. Laws Ann. § 330.1946 

(West 1999).

75 See, e.g., Hines v. Bick, 566 So. 2d 455 (La. App. 1990); Swan v. 

Wedgwood Family Services, 230 Mich. App. 190, 583 N.W.2d 719 (1998).
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as a matter of law to limit a psychiatrist’s liability for failing 

to warn or protect third parties injured by a patient. 76 Under 

our decision in Munstermann, psychiatrists owe no duty as a 

mater of law to third parties for physical injuries caused by a 

patient who has not actually communicated a threat of physical 

violence. And once such an actual communication has taken 

place, any duty to warn or protect on the part of the psychiatrist can be discharged by reasonable efforts to communicate 

the threat to the victim and a law enforcement agency. 77

Here, the Special Administrators rightly frame their claim 

as one based on the defendants’ duty to protect Melissa, 

a third party, from Loyd. Specifically, they allege that the 

defendants failed to protect her by failing to turn Loyd over 

to OPD on August 12, 2013, and by prematurely discharging 

Loyd from Lasting Hope on August 14 without notifying OPD 

and Melissa.

As the undisputed facts show, both of these alleged breaches 

of duty are attributable to the actions or omissions of Benton. 

She was “ultimately responsible” for Loyd’s treatment and 

discharge. 78 As Loyd’s treating psychiatrist, Benton conducted 

the initial intake evaluation of Loyd and determined that 

he needed to be hospitalized at Lasting Hope for 5 to 7 

days. Based on the initial evaluation, she then determined that 

despite Loyd’s attempt to turn himself in to OPD on August 

12, 2013, he needed further treatment and was not yet ready to 

be discharged from Lasting Hope. She communicated this to 

OPD officers via Lasting Hope staff, who merely relayed her 

determination. The OPD officers then left Lasting Hope without arresting Loyd, apparently accepting Benton’s psychiatric 

determination of Loyd’s condition.

On August 14, 2013, as well, it was because of Benton’s 

order as Loyd’s treating psychiatrist that Loyd was discharged. Even if, as the Special Administrators allege, Lasting 

76 See Munstermann, supra note 31.

77 Id.

78 See Wilson v. Valley Mental Health, 969 P.2d 416, 420 (Utah 1998).
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Hope staff had failed on August 12 to document OPD’s 

request to arrest Loyd upon his discharge, it is undisputed 

that Benton knew of Loyd’s outstanding arrest warrant. Still, 

based on her medical judgment, Benton determined that Loyd 

no longer posed a risk to himself or others and ordered him 

discharged to the public. The order to discharge Loyd was 

solely Benton’s.

In this way, the uncontroverted facts show that Benton 

made both of the decisions that the Special Administrators 

allege allowed Loyd to be able to murder Melissa. Benton 

made these decisions via the authority delegated to her as 

Lasting Hope’s agent and UNMC Physicians’ employee. 79 As 

the undisputed facts show, the UNMC Defendants and the 

Lasting Hope Defendants did not negligently hire, train, or 

otherwise delegate authority to Benton to treat Loyd, nor are 

these claims specifically assigned in the Special Administrators’ 

briefs. The failure to protect claim is entirely based on the 

alleged duty and breach of Benton, a psychiatrist, to protect Melissa, a third party, from Benton’s patient, Loyd. 

Accordingly, given these undisputed facts now before us, we 

hold that the Special Administrators’ claim is controlled by the 

Munstermann rule, not by the Restatement (Third), § 41, duty 

of reasonable care. 80

In Rodriguez I, we assumed that the Special Administrators’ 

allegations in the amended complaint were all true, including the allegation that Loyd had “‘sufficiently communicated’” to Benton and Lasting Hope staff threats of violence 

against Melissa. 81 If that allegation were supported by facts, 

we found that those facts could have given rise to a duty on 

the part of the defendants to warn and protect Melissa. 82 We 

79 See RM Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326, 

886 N.W.2d 240 (2016).

80 See, Munstermann, supra note 31; 2 Restatement (Third), supra note 20, 

§ 41.

81 See Rodriguez I, supra note 4, 297 Neb. at 15, 899 N.W.2d at 237.

82 See Rodriguez I, supra note 4.
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affirm that analysis here and add that any defendant to whom 

Loyd had actually communicated a threat of physical violence 

against Melissa could have discharged the Munstermann duty 

to warn and protect by notifying Melissa and a law enforcement agency of the threat. 83

But, as analyzed above, the uncontroverted evidence in the 

record shows that Loyd’s lack of communicated threats against 

Melissa meant that no duty to warn or protect was triggered 

for the defendants. Despite the Special Administrators’ allegations in the amended complaint, they have failed to offer any 

evidence that Loyd actually communicated to Benton or other 

Lasting Hope staff that he wished to commit physical violence 

against Melissa. As a result, under the Munstermann rule, the 

Special Administrators’ duty to protect claim fails as a matter 

of law.

We concur with the decision of the district court to grant 

the defendants’ motions for summary judgment on the Special 

Administrators’ duty to protect claim. The undisputed facts 

show that Melissa’s death is not legally attributable to a 

breach of duty by the UNMC Defendants or the Lasting 

Hope Defendants, because Loyd never actually communicated to them that he intended to harm Melissa. The Special 

Administrators’ first assignment of error is without merit.

2. Exclusion of Affidavits

The Special Administrators’ second assignment of error is 

that the district court wrongfully excluded their affidavits in 

opposition to the defendants’ motions for summary judgment.

Under Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020), 

after a motion for summary judgment has been filed, “[t]he 

adverse party prior to the day of hearing may serve opposing affidavits.” 84 In opposition to the defendants’ motions 

for summary judgment scheduled for a hearing on Monday, 

October 7, 2019, the Special Administrators served six 

83 See Munstermann, supra note 31.

84 See Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).
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affidavits on Sunday, October 6. Thus, under the plain text of 

§ 25-1332, the Special Administrators claim, it was error for 

the district court to exclude the affidavits, served the day prior 

to hearing, as untimely.

[26,27] We need not decide whether the district court erred 

in excluding the Special Administrators’ affidavits because, 

even assuming arguendo that the district court did err, such 

error would not be reversible error. The admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. 85 Erroneous 

exclusion of evidence does not require reversal if the evidence 

would have been cumulative and other relevant evidence, properly admitted, supports the trial court’s finding. 86

Here, besides the six affidavits offered by the Special 

Administrators, 18 other exhibits supported the defendants’ 

motions for summary judgment. A review of the Special 

Administrators’ six affidavits reveals that they would not have 

presented disputes of material fact. They are largely cumulative. They consist of 526 pages of witness statements commenting on Loyd’s mental health and his actions during and 

after his stay at Lasting Hope. To the extent that the affidavits 

contain noncumulative evidence, such as expert testimony and 

a report from Gutnik and an affidavit from Loyd, we have 

reviewed that evidence and find that it does not dispute the 

issues of material fact discussed above in this opinion.

Because the Special Administrators fail to show prejudice, 

a prerequisite for reversible error, their second assignment of 

error is without merit.

VI. CONCLUSION

Melissa’s death was a tragedy, and we recognize that 

the outcome we reach today may seem harsh to the Special 

Administrators. But our review of the undisputed evidence 

in the record has found no grounds on which Melissa’s death 

85 See AVG Partners I, supra note 12.

86 See id.
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can be legally attributed to any duty owed by these defendants. Therefore, we concur with the decision of the district 

court to deny relief to the Special Administrators.

The district court’s order granting the defendants’ motions 

for summary judgment is affirmed.

Affirmed.

Funke, J., not participating.

Papik, J., concurring.

The majority opinion finds that defendants are entitled to 

summary judgment because each of the allegedly negligent 

acts was committed by Dr. Benton, a psychiatrist; because in 

Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 

(2006), we held that a psychiatrist’s duty to take precautions 

with respect to potentially dangerous patients is triggered only 

in limited circumstances; and because there is no evidence 

those circumstances were present here. I agree with the majority that the rule we adopted in Munstermann stands as a barrier 

to the Special Administrators’ claims in this case, but I write 

separately to express my reservations about the analysis the 

court used to arrive at its holding in Munstermann.

The suit in Munstermann arose out of a psychiatric patient’s 

murder of his estranged girlfriend. The personal representative of the victim’s estate brought suit against a psychiatrist 

who had seen the patient shortly before the murder and against 

the hospital at which the psychiatrist worked. Notes regarding 

the psychiatrist’s observation of the patient indicated that the 

patient “‘was thinking of hurting [his] girlfriend . . . since she 

is hurting him.’” Id. at 837, 716 N.W.2d at 78. After the jury 

was unable to reach a verdict and the district court declared 

a mistrial, the defendants unsuccessfully moved for judgment 

notwithstanding the verdict and then appealed.

The threshold issue on appeal was whether and to what 

extent the defendants owed the victim a legal duty. Identifying 

such a duty and defining the scope thereof was crucial because 

of the general tort rule that, in the absence of certain carefully 
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defined special relationships, there is no duty to prevent a 

third party from causing harm to another. See Restatement 

(Second) of Torts, § 315(a) (1965). See, also, Bell v. Grow 

With Me Childcare & Preschool, 299 Neb. 136, 907 N.W.2d 

705 (2018).

In our duty analysis in Munstermann, we extensively discussed two statutes. One provided that licensed mental health 

practitioners (a category defined by statute to exclude psychiatrists and other physicians) could be held liable for failing 

to warn and provide protection from a patient’s threatened 

violent behavior “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,” but that there was no duty to warn or protect in 

any other circumstances. Neb. Rev. Stat. § 71-1,336 (Reissue 

2003). The same statute provided that the duty described could 

be discharged if the practitioner made reasonable efforts to 

communicate the threat to the victim or victims and to a law 

enforcement agency. Id. The other statute, Neb. Rev. Stat. 

§ 71-1,206.30 (Reissue 1996), provided that essentially the 

same rules applied to psychologists.

We acknowledged that the statutes governing the duties of 

licensed mental health practitioners and psychologists did not 

apply to psychiatrists and that a psychiatrist’s duty was thus 

“still controlled by common law.” Munstermann v. Alegent 

Health, 271 Neb. 834, 845, 716 N.W.2d 73, 83 (2006). We 

went on to say, however, that while those statutes “‘may not be 

literally applicable, [they are] clearly indicative of legislatively 

approved public policy.’” Id. at 846, 716 N.W.2d at 84 (quoting Parson v. Chizek, 201 Neb. 754, 272 N.W.2d 48 (1978)). 

We then concluded that because the Legislature had made a 

public policy determination in these statutes that licensed mental health practitioners and psychologists should have a duty to 

warn and protect third parties from potentially violent patients 

but only in limited circumstances, psychiatrists should have 

the same limited duty. Accordingly, we held that the limited 
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duties governing licensed mental health practitioners and psychologists also applied to psychiatrists:

We hold, in accord with §§ 71-1,1206.30(1) and 71-1,336, 

that 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 identifiable 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, and shall 

be discharged by the psychiatrist if reasonable efforts are 

made to communicate the threat to the victim or victims 

and to a law enforcement agency.

Munstermann, 271 Neb. at 847, 716 N.W.2d at 85.

We seem to have concluded in Munstermann that the specific statutes the Legislature enacted concerning licensed mental health practitioners and psychologists demonstrated that the 

Legislature was generally in favor of limited duties to warn and 

protect for all professionals who assist individuals with mental 

health issues or at least all professionals sufficiently similar to 

licensed mental health practitioners and psychologists. We thus 

applied those limited duties to psychiatrists as well.

I question this approach. Specifically, I question whether it 

is appropriate for a court to find that the text of a statute does 

not apply to a particular subject or circumstance, but that the 

statute nonetheless expresses a generalized public policy the 

court should strive to recognize as legally applicable to that 

subject or circumstance.

I concede that this mode of analysis—identifying a general 

public policy or legislative purpose from a statute and then 

applying that policy or purpose more broadly than the statutory 

text itself—was once not uncommon as a method of statutory interpretation. A late-19th-century U.S. Supreme Court 

case, Holy Trinity Church v. United States, 143 U.S. 457, 12 
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S. Ct. 511, 36 L. Ed 226 (1892), is often cited as emblematic of the approach of that era. See, e.g., Antonin Scalia & 

Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts (2012); Amy Coney Barrett, Congressional Insiders and 

Outsiders, 84 U. Chi. L. Rev. 2193 (2017); John F. Manning, 

Second-Generation Textualism, 98 Cal. L. Rev. 1287 (2010).

In Holy Trinity Church, a statute prohibited assisting or 

encouraging the importation of foreign nationals “‘to perform 

labor or service of any kind in the United States.’” 143 U.S. 

at 458. The question presented was whether the statute applied 

when a church paid for a man from England to come to New 

York to serve as its pastor. Another section of the statute provided specific exceptions for “professional actors, artists, lecturers, singers and domestic servants.” Id., 143 U.S. at 458-59. 

Although the Court concluded that the transportation of the 

pastor was covered by the broad prohibition and did not fall 

within any of the specific exceptions, it nonetheless held the 

statute did not apply. Based on a number of considerations, 

including the legislative history and title of the statute, the 

Court found that the purpose of the statute was to prohibit 

only the importation of manual labor. The Court described its 

rationale this way: “[A] thing may be within the letter of the 

statute and yet not within the statute, because not within its 

spirit, nor within the intention of its makers.” Id., 143 U.S. 

at 459.

More recently, the Holy Trinity Church approach has come 

under criticism and fallen out of favor. See, e.g., Scalia & 

Garner, supra at 12 (“Holy Trinity is a decision that the 

Supreme Court stopped relying on more than two decades 

ago”); Barrett, supra, 84 U. Chi. L. Rev. at 2195 (“[t]he claim 

that it is permissible to depart from clear text in the service 

of congressional purpose—an approach epitomized by Church 

of the Holy Trinity v. United States—has fallen into disrepute”); Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: 

Understanding Congress’s Plan in the Era of Unorthodox 

Lawmaking, 129 Harv. L. Rev. 62, 90 (2015) (“Church of 
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the Holy Trinity v. United States—oft-maligned for its statement that statutory ‘spirit’ may trump the plain ‘letter of the 

statute’—is long since dead”); Manning, supra, 98 Cal. L. 

Rev. at 1313 (opining that Holy Trinity Church no longer 

falls within “the mainstream of the [U.S. Supreme] Court’s 

jurisprudence”).

In my view, the Holy Trinity Church approach is difficult 

to defend. It is undoubtedly true that statutes are passed to 

achieve policies and purposes. They do so, however, through 

legislatively selected means. And if a court can identify and 

enforce what it believes to be the general policy behind legislation rather than the details actually enacted in the text, it 

is selecting its own means rather than respecting those chosen 

by the legislative branch. See, e.g., MCI Telecommunications 

Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 

231 n.4, 114 S. Ct. 2223, 129 L. Ed. 2d 182 (1994) (observing that courts are “bound, not only by the ultimate purposes 

[a legislature] has selected, but by the means it has deemed 

appropriate, and prescribed, for the pursuit of those purposes”); 

Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 

533 (1983) (arguing that adherence to text respects legislative 

choice of means).

The elevation of a judicially recognized general policy over 

specifically enacted legislative text is particularly problematic because legislation is often the product of compromise. 

If courts brush aside the details of the text in favor of what 

they believe to be the general purpose of the legislation, prior 

compromises will be disrespected and future compromises 

will be more difficult to reach. See Henson v. Santander 

Consumer USA Inc., ___ U.S. ___, 137 S. Ct. 1718, 1725, 

198 L. Ed. 2d 177 (2017) (quoting Rodriguez v. United States, 

480 U.S. 522, 107 S. Ct. 1391, 94 L. Ed. 2d 533 (1987) 

(concluding it is mistaken to assume that anything that furthers “‘statute’s primary objective must be the law’” because 

“[l]egislation is, after all, the art of compromise, the limitations 

expressed in statutory terms often the price of passage . . .”); 

John F. Manning, What Divides Textualists From Purposivists, 
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106 Colum. L. Rev. 70, 96 (2006) (arguing that judicial adherence to semantic text “is essential if one wishes legislators to 

be able to strike reliable bargains”).

These considerations and others lead me to question our 

conclusion in Munstermann v. Alegent Health, 271 Neb. 834, 

716 N.W.2d 73 (2006), that there was a legislatively approved 

policy requiring that psychiatrists have the same limited duty 

to warn and protect that the Legislature applied to other professionals via specific statutes. The Legislature did enact limited 

duties for some professionals, but whatever policy it hoped 

to achieve through those statutes, they did not cover psychiatrists. Perhaps that decision was intentional. Perhaps it was 

inadvertent. In either case, I do not understand the basis on 

which we could conclude that the Legislature had directed that 

psychiatrists have the same duty as these other professionals. 

If anything, it seems to me one of our oft-used principles of 

statutory interpretation would counsel in favor of the opposite conclusion. See Rogers v. Jack’s Supper Club, 304 Neb. 

605, 612, 935 N.W.2d 754, 761 (2019) (“[i]t is not within the 

province of the courts to read meaning into a statute that is not 

there or to read anything direct and plain out of a statute”). 

See, also, Scalia & Garner, supra at 93 (discussing “OmittedCase Canon” requiring that matters not covered by a statute are 

to be treated as not covered).

To be clear, I recognize that Munstermann did not find that 

the statutes covering licensed mental health practitioners and 

psychologists literally extended to psychiatrists, but, rather, 

concluded those statutes should apply to psychiatrists in the 

course of determining psychiatrists’ common-law duties. I see 

little difference, however, between finding that the meaning of 

a statute goes beyond its text in the course of interpreting a 

statute and finding that a legislatively approved public policy 

can be found in a statute not applicable to the subject at hand 

in the course of common-law analysis.

But while I have reservations about the path we took to 

arrive at our holding in Munstermann, we have continued to 
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rely on that holding in subsequent cases, no party in this case 

asks us to reconsider the portion of the decision extending the 

limited duties applicable to licensed mental health practitioners 

and psychologists to psychiatrists, and, if such an argument 

were made, it would have to reckon with the doctrine of legislative acquiescence. I also do not disagree with the majority’s 

conclusion that the Special Administrators’ theory of liability is 

inconsistent with the rule adopted in Munstermann, and thus, 

I concur in the decision affirming summary judgment. For the 

reasons set forth herein, however, I would be reluctant in a 

future case to conclude that a statute is indicative of a legislatively approved public policy on a given subject if the text of 

that statute does not apply to that subject.

Stacy, J., joins.