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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

Michael T. and Cathy D. Christensen, individually 

and as parents and next friends of Chad M. 

Christensen, and as Coguardians and 

Coconservators of Chad M. Christensen, 

a protected person, appellants and 

cross-appellees, v. Broken Bow Public Schools, 

also known as Broken Bow School District 25, 

a political subdivision of the State of Nebraska, 

defendant and third-party plaintiff, appellee 

and cross-appellant, and Beverly L. Sherbeck, 

Personal Representative of the Estate of 

Albert F. Sherbeck, deceased, third-party 

defendant, appellee and cross-appellant.

___ N.W.2d ___

Filed November 4, 2022. No. S-21-885.

1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the 

motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed is entitled 

to have every controverted fact resolved in its favor and to have the 

benefit of every inference which can reasonably be deduced from 

the evidence.

2. Statutes: Ordinances: Legislature: Intent: Torts: Liability. In determining whether a statute or ordinance creates a duty, a court may determine that a statute gives rise to a tort duty to act in the manner required 

by the statute where the statute is enacted to protect a class of persons 

which includes the plaintiff, the statute is intended to prevent the particular injury that has been suffered, and the statute is intended by the 

Legislature to create a private liability as distinguished from one of a 

Nebraska Supreme Court Online Library

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

11/18/2022 01:07 AM CST
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

public character. Consideration of the Legislature’s purpose in enacting 

a statute is central to the analysis of whether the statute defines a duty 

in tort and creates private civil liability.

3. Negligence: Proof: Statutes. The violation of a statute alone does not 

prove negligence.

4. Negligence: Proof: Probable Cause: Damages. A plaintiff in ordinary 

negligence must prove all four essential elements of the claim: the 

defendant’s duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5. Negligence: Proof. A cause of action for negligence depends not only 

upon the defendant’s breach of duty to exercise care to avoid injury to 

the plaintiff, but also depends upon a showing that the injury suffered 

by the plaintiff was caused by the alleged wrongful act or omission of 

the defendant.

6. Proximate Cause: Evidence. Neb. Rev. Stat. § 60-6,273 (Reissue 2021) 

explicitly makes all “[e]vidence that a person was not wearing an occupant protection system or a three-point safety belt system” inadmissible 

for the issue of proximate cause.

7. Statutes. Statutory text is to be given its plain and ordinary meaning.

8. Statutes: Appeal and Error. An appellate court is not at liberty to add 

language to the plain terms of a statute to restrict its meaning.

Appeal from the District Court for Custer County: Karin L. 

Noakes, Judge. Affirmed.

David S. Houghton and Keith A. Harvat, of Houghton, 

Bradford & Whitted, P.C., L.L.O., and James V. Duncan and 

John O. Sennett, of Sennett, Duncan, Jenkins & Wickham, 

P.C., L.L.O., for appellants.

Matthew B. Reilly and Thomas J. Culhane, of 

Erickson | Sederstrom, P.C., L.L.O., for appellee Broken Bow 

Public Schools.

Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen, 

for appellee Beverly L. Sherbeck.

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

and Papik, JJ., and Stratman, District Judge.
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

Miller-Lerman, J.

I. NATURE OF CASE

Appellants, Michael T. and Cathy D. Christensen, brought 

this case in the district court for Custer County individually 

and as parents of their son, Chad M. Christensen, who was 

seriously injured when a Broken Bow Public Schools (BBPS) 

activities van in which he was a passenger was hit head on by 

a truck driven by Albert F. Sherbeck. Chad was not wearing a 

seatbelt. The Christensens separately sued Sherbeck’s widow, 

Beverly L. Sherbeck, as personal representative of Sherbeck’s 

estate (the Sherbeck estate) and the cases were consolidated.

On remand from a memorandum opinion of the Nebraska 

Court of Appeals that reversed a directed verdict in favor of 

BBPS, the district court considered several additional arguments by BBPS. Following due consideration, the district 

court granted a directed verdict in favor of BBPS and against 

the Christensens, dismissed the Christensens’ complaint, and 

dismissed BBPS’ third-party complaint against the Sherbeck 

estate as moot. These rulings give rise to the instant appeal 

by the Christensens and the cross-appeals by BBPS and the 

Sherbeck estate.

In its order directing a verdict in favor of BBPS, the district court stated, inter alia, that despite the provision in Neb. 

Rev. Stat. § 60-6,267(2) (Reissue 2021) that drivers ensure 

seatbelt use for children, Neb. Rev. Stat. § 60-6,269 (Reissue 

2021) “explicitly states, ‘violations of the provisions of sections 60-6,267 . . . shall not constitute prima facie evidence 

of negligence.’” The district court noted that Neb. Rev. Stat. 

§ 60-6,273 (Reissue 2021) prohibits “using evidence that 

a person was not wearing a seatbelt to establish proximate 

cause” and in the absence of other admissible evidence of 

proximate cause, the Christensens’ claims failed and were dismissed. Because we agree with the district court’s reading of 

the relevant statutes, we affirm its order of a directed verdict 

in favor of BBPS and in addition dismiss the cross-appeals 

as moot.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

II. STATEMENT OF FACTS

1. The Collision

On June 1, 2012, a BBPS activities van collided with 

a truck driven by Sherbeck. The van was driven by Zane 

Harvey, a high school basketball coach for BBPS. Another 

coach, Anthony Blum, and eight students, including Chad, 

were passengers in the van, which was returning from a 

summer basketball clinic in Kearney, Nebraska. Sherbeck’s 

vehicle crossed the centerline and collided head on with the 

van. Sherbeck, Harvey, and Blum died at the scene. The 

Christensens’ son, Chad, was riding in the van unrestrained by 

a seatbelt and was seriously injured. Chad was age 17 at the 

time of the accident.

2. Procedural History

The Christensens filed separate actions against BBPS and 

against Sherbeck’s widow, as personal representative of the 

Sherbeck estate. In the action against BBPS, the Christensens 

asserted five separate theories of recovery, including claims 

that (1) BBPS was negligent in its operation of the van and was 

negligent in its supervision of the students because it failed to 

ensure that students were wearing seatbelts and (2) BBPS violated § 60-6,267(2), which provides:

Any person in Nebraska who drives any motor vehicle 

which has or is required to have an occupant protection 

system or a three-point safety belt system shall ensure 

that all children eight years of age and less than eighteen 

years of age being transported by such vehicle use an 

occupant protection system.

The district court consolidated the cases; the case against the 

Sherbeck estate was tried to a jury and the case against BBPS 

was tried to the court. The jury returned a verdict in favor of 

the Sherbeck estate on the Christensens’ claims against it. The 

Court of Appeals affirmed the judgment in the case against the 

Sherbeck estate in Christensen v. Sherbeck, 28 Neb. App. 332, 
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

943 N.W.2d 460 (2020), and we denied the Christensens’ petition for further review.

At the close of evidence in the Christensens’ case in chief 

against BBPS, BBPS moved for a directed verdict. The district court granted a directed verdict in favor of BBPS on 

the grounds that Sherbeck’s vehicle’s crossing the centerline 

constituted an efficient intervening cause that broke the causal 

connection between Chad’s injuries and any failure on the part 

of BBPS to ensure that Chad was wearing a seatbelt.

The Christensens appealed, and the Court of Appeals 

reversed the district court’s decision to grant a directed verdict. 

See Christensen v. Broken Bow Public Schools, No. A-19-125, 

2020 WL 5785351 (Neb. App. Sept. 29, 2020) (selected for 

posting to court website).

The Court of Appeals concluded that the district court erred 

when it found, as a matter of law, that Sherbeck’s actions 

constituted an efficient intervening cause. For purposes of its 

analysis, the Court of Appeals assumed without deciding that 

BBPS had a duty to ensure that Chad was wearing a seatbelt while riding in the school activities van. Based on that 

assumption, the Court of Appeals reasoned that the purpose 

of such a duty would be to protect children in the event of 

any sort of traffic accident and that therefore, the potential 

for liability based on a violation of that duty did not rest on 

the foreseeability of the exact circumstances of the collision. 

The Court of Appeals concluded that because a head-on collision between the van and another vehicle was the sort of harm 

against which a seatbelt was meant to protect, the collision 

could not, as a matter of law, constitute an efficient intervening 

cause to insulate BBPS from liability for failing to ensure that 

Chad was wearing a seatbelt. The Court of Appeals remanded 

the cause to the district court with directions to consider the 

other arguments BBPS made in its motion for directed verdict, and, if it rejected those other arguments, to proceed with 

BBPS’ presentation of evidence in its defense.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

BBPS moved for rehearing and argued that the Court of 

Appeals should have addressed its alternative argument that 

§ 60-6,269 precluded the Christensens from establishing a negligence claim against BBPS based on the failure to ensure that 

Chad was wearing a seatbelt. The Court of Appeals denied the 

motion for rehearing, and we denied further review.

3. District Court Order 

on Remand

Upon remand, the district court, as directed by the Court of 

Appeals, considered BBPS’ other arguments for directed verdict. The district court rejected BBPS’ argument that Harvey’s 

and Blum’s actions related to the trip in the van were outside 

the scope of their employment with BBPS because, as asserted 

by BBPS, the trip occurred during the summer, which was outside the period of their teaching/coaching contracts. The court 

reasoned that although their work was gratuitously provided 

outside the time of their contracts, it was within the scope of 

their employment, and that BBPS was not relieved of liability 

on that basis.

The district court then considered BBPS’ argument regarding the effect of § 60-6,269. The district court noted that 

§ 60-6,269 “explicitly states, ‘violations of the provisions of 

sections 60-6,267 and 60-6,268 shall not constitute prima facie 

evidence of negligence.’” The court determined that given 

the language of § 60-6,269, the Christensens’ claim based on 

violation of § 60-6,267 must fail, and that BBPS’ motion for 

directed verdict should be granted.

In its analysis, the district court noted that there was no 

evidence that the actions of Harvey and Blum were deficient 

in any way other than failing to ensure that the students were 

wearing seatbelts. In considering the evidence of the elements 

of the Chistensens’ negligence claim, the court noted the provisions of § 60-6,273, which state:

Evidence that a person was not wearing an occupant 

protection system or a three-point safety belt system at 
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

the time he or she was injured shall not be admissible in 

regard to the issue of liability or proximate cause but may 

be admissible as evidence concerning mitigation of damages, except that it shall not reduce recovery for damages 

by more than five percent.

The court stated that the plain language of § 60-6,273 

“prohibits using evidence that a person was not wearing a 

seatbelt to establish proximate cause” and that it also “clearly 

prohibits evidence of non-use in regard to liability.” The 

court determined that because § 60-6,273 “does not allow 

evidence of non-use of a seatbelt to prove liability or proximate cause” and because the Christensens presented no other 

evidence of proximate cause, their various claims for negligence must fail.

Having determined that the Christensens had not presented 

evidence to support their claims, the court dismissed all of 

the Christensens’ claims against BBPS. The court later denied 

the Christensens’ motion for a new trial and dismissed BBPS’ 

third-party complaint against the Sherbeck estate as moot.

The Christensens appeal, and BBPS and the Sherbeck estate 

cross-appeal.

III. ASSIGNMENTS OF ERROR

The Christensens claim, summarized and restated, that 

the district court erred when it interpreted §§ 60-6,269 and 

60-6,273 to preclude their claims against BBPS and determined 

that they had not presented evidence other than nonuse of seatbelts to support their claims.

In its cross-appeal, BBPS claims, restated, that the district 

court erred when it found that BBPS employed Harvey and 

Blum on the date of the collision, and BBPS also asserts that it 

was entitled to summary judgment on various defenses, including assumption of risk and contributory negligence.

In its cross-appeal, the Sherbeck estate contends that all 

claims against it in this case are barred by issue preclusion and 

the law-of-the-case doctrine.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

IV. STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as an 

admission of the truth of all competent evidence submitted on 

behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed 

is entitled to have every controverted fact resolved in its favor 

and to have the benefit of every inference which can reasonably be deduced from the evidence. de Vries v. L & L Custom 

Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).

V. ANALYSIS

The Christensens claim that the district court erred when 

it granted a directed verdict and dismissed all of their claims 

against BBPS. We conclude that through Nebraska’s statutes 

addressing civil litigation and seatbelt use, the Legislature 

has determined the legal significance of seatbelt nonuse and 

specifically did not intend for evidence of seatbelt nonuse to 

be admissible to show proximate cause and create civil liability. As we explain below and given the record, we affirm the 

order of the district court, which directed a verdict in favor of 

BBPS. Consequently, the cross-appeals filed by BBPS and the 

Sherbeck estate are moot.

1. Relevant Statutes

We begin by setting forth the statutes relevant to our analysis. Section 60-6,267(2) describes a driver’s responsibility to 

ensure seatbelt use by children. It provides:

Any person in Nebraska who drives any motor vehicle 

which has or is required to have an occupant protection 

system or a three-point safety belt system shall ensure 

that all children eight years of age and less than eighteen 

years of age being transported by such vehicle use an 

occupant protection system.

Neb. Rev. Stat. § 60-6,268 (Reissue 2021) makes it an 

infraction to violate subsections (1) or (2) of § 60-6,267 and 

provides for a monetary fine.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

Section 60-6,269 provides for the legal significance of violations and compliance with seatbelt usage and states:

Violations of the provisions of sections 60-6,267 and 

60-6,268 shall not constitute prima facie evidence of negligence nor shall compliance with such sections constitute 

a defense to any claim for personal injuries to a child or 

recovery of medical expenses for injuries sustained in 

any motor vehicle accident. Violation of such sections by 

a driver shall not constitute a defense for another person 

to any claim for personal injuries to a child or recovery 

of medical expenses for injuries sustained in any motor 

vehicle accident.

Critical to our analysis is the evidentiary rule set forth in 

§ 60-6,273:

Evidence that a person was not wearing an occupant 

protection system or a three-point safety belt system at 

the time he or she was injured shall not be admissible in 

regard to the issue of liability or proximate cause but may 

be admissible as evidence concerning mitigation of damages, except that it shall not reduce recovery for damages 

by more than five percent.

2. Christensens’ Claims Against BBPS

Many of the Christensens’ arguments are based on their 

linguistic examination of the statutory framework set forth 

above that they contend distinguishes between seatbelt use by 

adults, which is inadmissible in regard to liability or proximate 

cause, and seatbelt use by children, which they contend may be 

admitted to demonstrate the negligence of a driver who fails to 

secure them. As we explain below, we reject these arguments. 

Reading the statutes in harmony, we conclude that a driver’s 

violation of a seatbelt statute does not form a prima facie case 

of his or her negligence and that such evidence is inadmissible on the issue of liability or proximate cause predicated 

on seatbelt nonuse, including a claim on behalf of a child for 

personal injuries.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

(a) Breach of a Statutory “Duty” and 

Evidence of Proximate Cause

The Christensens assert that §§ 60-6,269 and 60-6,273 apply 

only to seatbelt use by adults. They further contend that by 

not securing a child, a driver has violated § 60-6,267(2) and 

has thereby breached his or her duty to protect children from 

collisions. That is, the Chistensens claim that failure to comply with § 60-6,267(2) in and of itself forms the basis for a 

breach of a statutory duty for purposes of negligence. The 

Christensens contend that the policy goals of the Legislature 

are tailored to protect an accident victim and not to protect a 

driver who broke a child safety law from being held accountable in civil court by the parents of an injured child.

[2] In determining whether a statute or ordinance creates 

a duty, a court may determine that a statute gives rise to a 

tort duty to act in the manner required by the statute where 

the statute is enacted to protect a class of persons which 

includes the plaintiff, the statute is intended to prevent the 

particular injury that has been suffered, and the statute is 

intended by the Legislature to create a private liability as 

distinguished from one of a public character. Stonacek v. City 

of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010) (quoting 

Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001)). 

Consideration of the Legislature’s purpose in enacting a statute is central to the analysis of whether the statute defines a 

duty in tort and creates private civil liability. Stonacek v. City 

of Lincoln, supra.

We conclude that the plain statutory language does not support the Christensens’ theory of the Legislature’s intention. 

The provision in § 60-6,269 that a violation of § 60-6,267 

“shall not constitute prima facie evidence of negligence” is 

antithetical to the prosecution of a negligence case based on a 

driver’s failure to secure a child. The Legislature’s inclusion 

of § 60-6,269 shows that the purpose of the statutory scheme 

was decidedly not to create private civil liability.
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

[3-5] Even if BBPS’ violation of § 60-6,267 breached a 

statutory duty to ensure Chad was using an occupant protection 

system, it is fundamental that the violation of a statute alone 

does not prove negligence. A plaintiff in ordinary negligence 

must prove all four essential elements of the claim: the defendant’s duty not to injure the plaintiff, a breach of that duty, 

proximate causation, and damages. Susman v. Kearney Towing 

& Repair Ctr., 310 Neb. 910, 970 N.W.2d 82 (2022). A cause 

of action for negligence depends not only upon the defendant’s 

breach of duty to exercise care to avoid injury to the plaintiff, 

but also depends upon a showing that the injury suffered by 

the plaintiff was caused by the alleged wrongful act or omission of the defendant. Id. In Susman, we recently recalled one 

of our earliest negligence cases, which stated: “‘“The cause 

of action in any case embraces not only the injury which the 

complaining party has received, but it includes more. All the 

facts which, taken together, are necessary to fix the responsibility are parts of the cause of action.”’” 310 Neb. at 921, 970 

N.W.2d at 91 (quoting Westover v. Hoover, 94 Neb. 596, 143 

N.W. 946 (1913)).

[6-8] Even assuming that the violation of § 60-6,267 

breached a duty of care, there is no admissible evidence that 

violation of the child seatbelt requirement proximately caused 

Chad’s injuries. To the contrary, § 60-6,273 explicitly makes 

all “[e]vidence that a person was not wearing an occupant 

protection system or a three-point safety belt system” inadmissible for the issue of proximate cause. Statutory text is to 

be given its plain and ordinary meaning. Dutcher v. Nebraska 

Dept. of Corr. Servs., ante p. 405, 979 N.W.2d 245 (2022). An 

appellate court is not at liberty to add language to the plain 

terms of a statute to restrict its meaning. Id. The Legislature 

has dictated that seatbelt nonuse is excluded on the issue of 

proximate cause.

The Christensens urge us to factor in Chad’s age as a 

child into our statutory analysis. This argument is unavailing. 
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

We are aware that the Legislature imposed a fine on drivers 

who fail to secure children in their vehicles. See § 60-6,268. 

However, it did not distinguish the age or status of the “person” without the seatbelt when setting forth the evidentiary 

rule in § 60-6,273. According to the Legislature, all nonuse 

evidence is inadmissible regarding proximate cause. Id. We 

are not inclined to add language regarding age to change the 

statute’s exclusionary plain meaning. See id. Indeed, we have 

explained in the past that given the language of § 60-6,273, 

evidence of seatbelt nonuse is admissible only for mitigation 

of damages. Werner v. County of Platte, 284 Neb. 899, 824 

N.W.2d 38 (2012); Fickle v. State, 273 Neb. 990, 735 N.W.2d 

754 (2007), modified on denial of rehearing 274 Neb. 267, 

759 N.W.2d 113.

In this case, aside from the failure to ensure Chad was 

restrained by a seatbelt in the activities van, there was no evidence that Harvey’s or Blum’s actions were deficient. Without 

the seatbelt evidence, the Christensens’ claims based on BBPS’ 

violation of § 60-6,267, or even a purported breach of a statutory duty based in § 60-6,267, were properly dismissed. We 

find no error in the directed verdict in favor of BBPS.

(b) Evidence of BBPS’ Negligent 

Supervision of Students

The Christensens attempt to circumvent §§ 60-6,267 and 

60-6,269 by arguing that seatbelt nonuse by a student could 

be direct evidence that the school breached its duty to exercise reasonable care under the circumstances. We reject this 

argument.

The circumstances of this case are unrestrained children in 

a van which was hit head on by a truck. Evidence of a person’s seatbelt nonuse is inadmissible for the issue of “liability 

or proximate cause.” § 60-6,273. The district court properly excluded evidence of seatbelt nonuse. See § 60-6,273. 

Without evidence of seatbelt nonuse, which evidence was 

essential to the claim of negligent supervision, but which 
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS

Cite as 312 Neb. 814

was properly excluded, the Christensens’ evidence failed 

to show proximate cause. Taking every controverted fact 

resolved in the Christensens’ favor and giving them the benefit of every inference which can reasonably be deduced from 

the admissible evidence, we agree with the district court that 

the Christensens failed to show that BBPS caused Chad’s 

injuries. We find no error in the directed verdict in favor 

of BBPS.

3. Cross-Appeals and BBPS’ Third-Party 

Complaint Against Sherbeck Estate

In view of our disposition affirming the directed verdict in 

favor of BBPS, we determine that the district court correctly 

dismissed as moot BBPS’ third-party complaint against the 

Sherbeck estate.

VI. CONCLUSION

For the reasons explained above, we affirm the order of the 

district court that directed the verdict in favor of BBPS and 

dismissed the Christensens’ claims against BBPS. The issues 

raised by the cross-appeals filed by BBPS and the Sherbeck 

estate are now moot or without merit, and we decline to reach 

them. See In re Maint. Fund of Sunset Mem. Park Chapel, 302 

Neb. 954, 925 N.W.2d 695 (2019).

Affirmed.

Freudenberg, J., not participating.