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APKAN v. LIFE CARE CENTERS OF AMERICA

Cite as 26 Neb. App. 154

David Apkan, Special Administrator of th

of Musa Gwelo, appellant, v. Life Care Cen

of America, Inc., and Consolidated 

Health Care Fund I, L.P., doing bu

Life Care Center at Elkhorn, appell

___ N.W.2d ___

Filed August 7, 2018. No. A-17-162.

1. Appeal and Error. In the absence of plain error, an appellate court considers only claimed errors that are both assigned and discussed.

2. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose that there is no genuine 

issue as to any material fact or as to the ultimate inferences that may be 

drawn from those facts and that the moving party is entitled to judgment 

as a matter of law.

3. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted and gives 

that party the benefit of all reasonable inferences deducible from 

the evidence.

4. Trial: Expert Witnesses: Appeal and Error. Generally, an appellate 

court will reverse a trial court’s decision to receive or exclude the otherwise relevant testimony of an expert only when there has been an abuse 

of discretion.

5. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

6. Summary Judgment: Affidavits. Supporting affidavits in summary 

judgment proceedings shall be made on personal knowledge, shall set 

forth such facts as would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to the matters 

stated therein.

Nebraska Supreme Court Online Library

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

08/14/2018 12:08 AM CDT
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7. Malpractice: Health Care Providers: Statutes. Because of the statutory difference between skilled nursing facilities and assisted living 

facilities, they have differing standards of care.

8. Expert Witnesses. An expert’s opinion is ordinarily admissible if the 

witness (1) qualifies as an expert, (2) has an opinion that will assist the 

trier of fact, (3) states his or her opinion, and (4) is prepared to disclose 

the basis of that opinion on cross-examination.

9. Negligence: Summary Judgment: Proof. For the court to grant summary judgment to the defendant in a negligence action, the defendant 

need only prove that there is no issue of material fact as to one of the 

elements such that the defendant is entitled to judgment as a matter 

of law.

10. Expert Witnesses. When the character of an alleged injury is subjective 

rather than objective, a plaintiff must establish the cause and extent of 

the injury through expert medical testimony.

11. Negligence: Malpractice: Expert Witnesses. The common-knowledge 

exception to the requirement for expert medical testimony applies where 

the causal link between the defendant’s negligence and the plaintiff’s 

injuries is sufficiently obvious to laypersons that a court can infer causation as a matter of law.

12. Negligence: Proof. To prevail in any negligence action, a plaintiff must 

show a legal duty owed by the defendant to the plaintiff, a breach of 

such duty, causation, and resulting damages.

13. Summary Judgment: Proof. The party moving for summary judgment 

has the burden to show that no genuine issue of material fact exists and 

must produce sufficient evidence to demonstrate that the moving party 

is entitled to judgment as a matter of law.

14. ____: ____. A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a 

judgment in its favor if the evidence were uncontroverted at trial.

15. ____: ____. After the moving party has shown facts entitling it to a 

judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact that prevents judgment 

for the moving party.

16. Trial: Evidence: Proximate Cause. Speculation and conjecture are not 

sufficient to establish causation.

Appeal from the District Court for Douglas County: James T.

Gleason, Judge. Affirmed

Richard F. Hitz, of Law Office of Rich Hitz, for appellant.
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Mark E. Novotny and Cathy S. Trent-Vilim, of Lamson, 

Dugan & Murray, L.L.P., for appellees.

Moore, Chief Judge, and Pirtle and Arterburn, Jud

Moore, Chief Judge

I. INTRODUCTION

David Apkan, special administrator of the estate of Musa 

Gwelo, brought an action against Life Care Centers of America, 

Inc., and Consolidated Resources Health Care Fund I, L.P., 

doing business as Life Care Center at Elkhorn (collectively 

Life Care), asserting Life Care’s negligence caused Gwelo pain 

and suffering and led to her subsequent death. Apkan appeals 

the order of the district court for Douglas County, which 

granted summary judgment in favor of Life Care. On appeal, 

Apkan challenges the district court’s admission of two affidavits over his objection. He further assigns the district court 

erred in failing to apply the “common-knowledge exception” 

to the requirement of expert testimony to prove causation. For 

the reasons set forth below, we affirm.

II. BACKGROUND

Apkan filed a complaint on June 17, 2014. He alleged 

that Gwelo was a resident of Life Care’s nursing home in 

Elkhorn, Nebraska, from July 6 to 9, 2012, and that Life Care 

breached its duty to care for Gwelo, resulting in Gwelo’s falling from her bed and suffering injury and in her subsequent 

death on July 12. The complaint set forth a negligence claim 

for Gwelo’s pain and suffering prior to her death and for her 

wrongful death.

In its answer, Life Care admitted that Gwelo was its resident during the alleged time period, that it is skilled in the 

performance of nursing, and that it is properly staffed and 

licensed by the Department of Health and Human Services as 

alleged in Apkan’s complaint. In all other respects, it denied 

the allegations of Apkan’s complaint.
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Life Care filed a motion for summary judgment, alleging 

that there were no genuine issues of material fact and that it 

was entitled to judgment as a matter of law. On August 19, 

2016, the court heard arguments on the summary judgment 

motion. In support of its motion, Life Care offered the affidavits of Kirk Sweeney and Dr. Donald R. Frey, which the court 

received into evidence over Apkan’s foundational objection.

Sweeney’s affidavit stated that he was the director of Life 

Care’s Elkhorn facility at all times relevant to Apkan’s complaint. His affidavit included the following statements: Life 

Care admitted Gwelo on July 6, 2012, when she was transferred there from a hospital where she had been for several weeks. Gwelo was admitted to Life Care with several 

medical diagnoses, including multiple myeloma, bacteremia, 

chronic pain, osteoporosis, thrombocytopenia, anemia, tachycardia, and depressive disorder. Gwelo requested “Do Not 

Resuscitate” status at the time of her admission and completed the appropriate forms. Around 5 p.m. on July 6, a nurse 

checked on Gwelo, finding her on the floor on her left side 

“in a fetal position.” Life Care was not aware of anyone who 

witnessed how Gwelo got from her bed to the floor. On July 

9, Gwelo was transported to a cancer center for treatment, 

was readmitted to the hospital that day, and did not return to 

Life Care. Gwelo died on July 12. Her death certificate lists 

multiple myeloma as her immediate cause of death. A copy of 

her “Do Not Resuscitate” form and her death certificate were 

attached to Sweeney’s affidavit.

Dr. Frey’s affidavit and attached curriculum vitae stated 

that he is a medical doctor specializing in family medicine in 

Omaha, Nebraska. Frey outlined his educational background, 

his board certification in family and geriatric medicine, and 

his special qualifications in the area of geriatric medicine. Frey 

practices at a medical center and a family healthcare facility. 

He has written peer-reviewed and non-peer-reviewed articles 

and books about family and geriatric medicine and has given 

presentations and radio interviews on the same. Frey’s affidavit 
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included the following statements: Frey has regularly seen and 

cared for residents, like Gwelo, who reside in assisted living 

facilities, like Life Care. Based on his education, training, and 

experience, he is familiar with the generally recognized standard of care for assisted living facilities and healthcare providers working in assisted living facilities. He reviewed Apkan’s 

complaint and “hundreds, if not more than a thousand,” pages 

of medical records related to Gwelo’s medical condition and 

treatment prior to her death.

Gwelo was 51 years old at the time of her death. Her official cause of death was multiple myeloma, a cancer of the 

blood, with which she was first diagnosed in October 2004. 

When the hospital discharged Gwelo to Life Care, her medical 

providers recommended she either be placed in hospice care 

or be moved to a nursing home. In addition to her multiple 

myeloma, Gwelo was being treated for a sepsis infection of 

her “port (used to provide chemotherapy treatments).” She 

also suffered from pancytopenia, secondary to her multiple 

myeloma, which required frequent blood transfusions; acute 

respiratory failure; congestive heart failure; hypokalemia (low 

potassium); malnutrition; headaches; and various other medical conditions. At the time of her admission to Life Care, 

Gwelo’s prognosis was poor and she appeared extremely 

weak. Gwelo had no history of falls prior to her admission to 

Life Care.

In the early evening of July 6, 2012, only hours after her 

admission to Life Care, a nurse found Gwelo “lying on the 

floor in a fetal position.” But no one reported observing or 

witnessing how she got from her bed to the floor. The records 

from Life Care reflect that its staff followed all appropriate 

precautions regarding falls. In addition, based on a review of 

the records, “little evidence” suggests Gwelo actually fell out 

of her bed, other than the allegations in Apkan’s complaint. 

Gwelo suffered from low platelets, which posed a risk of her 

passing out and falling. Although the hospital noted some 

bleeding on Gwelo’s brain on July 9, her low platelets may 
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have caused a spontaneous bleed. Based on Dr. Frey’s review 

of the evidence and information in the case, his credentials, 

and his knowledge of the applicable standard of care, he 

opined to a reasonable degree of medical certainty that Life 

Care at all times met the applicable standard of care and that 

the alleged actions or inactions of Life Care did not cause 

Gwelo’s death, alleged damages, or both.

In response to Life Care’s motion, Apkan submitted his 

own affidavit, which the court received into evidence. Apkan 

stated he was Gwelo’s longtime companion for over 12 years. 

At 11:48 p.m. on July 6, 2012, a staff member at Life Care 

contacted him, saying Gwelo had fallen to the floor. The staff 

member explained that Gwelo was examined after the fall, 

returned to her bed, and would be monitored for the rest of 

the night. Apkan immediately drove to Life Care in Elkhorn. 

When he arrived at Gwelo’s room, he found her lying on the 

floor, motionless, in a soiled nightgown. Apkan looked for 

help but could find no staff members in the hallway or near 

Gwelo’s room. Apkan lifted Gwelo and placed her on her bed, 

noticing the bed linens were also soiled with feces and urine. 

Apkan alerted Life Care’s staff to her situation. He returned to 

Gwelo’s room where he waited 30 minutes for a staff member to check on her. The staff member told Apkan that Gwelo 

was “‘all right,’” and Apkan left when he felt Gwelo was safe 

and asleep.

Apkan returned to Life Care each day until Gwelo left the 

facility on July 9, 2012. Apkan did not recall nursing staff 

conducting any medical tests or evaluating Gwelo’s thinking or neurological status while he was visiting. During his 

visits, Gwelo complained of a severe headache, which Life 

Care’s staff acknowledged. They occasionally provided her 

with pain medication. Apkan was not aware of whether Life 

Care informed Gwelo’s physician of her falls or her subsequent headache complaints. Gwelo had an outpatient appointment on July 9. Upon Gwelo’s arrival at the clinic, the nursing 

staff concluded her condition was not stable, and she was 
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transferred to a hospital emergency room. At the emergency 

room, Apkan informed the doctors of Gwelo’s falls and headaches. The hospital staff informed him that Gwelo suffered 

from two subdural hematomas on her brain that were actively 

bleeding and could not be surgically treated due to her platelet 

deficiency. Due to the hematomas, her cancer treatments were 

suspended, and she died on July 12.

The court granted the parties leave to submit briefs and took 

the matter under advisement. On January 11, 2017, the court 

entered an order on Life Care’s motion for summary judgment. 

The court found that Dr. Frey’s affidavit established that Life 

Care met the applicable standard of care. The court noted, 

“Implicit in this is the determination that if the actions of [Life 

Care] in treating [Gwelo] comported with the applicable standard of care, the actions of [Life Care] could not have been a 

proximate cause of any damage suffered by [Gwelo].” Because 

Apkan failed to provide contrary evidence on the issue of causation, the court granted Life Care’s motion for summary judgment. The court further found that Apkan could not proceed 

under the common-knowledge exception to the requirement 

for expert testimony to prove causation because the evidence 

did not support a determination that Life Care’s conduct was 

extreme and obvious misconduct. Apkan appeals.

III. ASSIGNMENTS OF ERROR

Apkan assigns, restated, that the district court erred in (1) 

overruling his objections to Life Care’s affidavits in support 

of summary judgment, (2) finding that Dr. Frey’s affidavit 

provided evidence that Life Care met the applicable standard 

of care, (3) finding that the common-knowledge exception 

did not apply, and (4) entering summary judgment in favor of 

Life Care.

[1] As addressed by Life Care in its appellate brief, Apkan 

does not specifically argue his assignment of error regarding 

Sweeney’s affidavit. In the absence of plain error, an appellate 

court considers only claimed errors that are both assigned and 
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discussed. Salem Grain Co. v. Consolidated Grain & Barge 

Co., 297 Neb. 682, 900 N.W.2d 909 (2017).

IV. STANDARD OF REVIEW

[2,3] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Oldfield 

v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 

278 (2017). In reviewing a summary judgment, an appellate 

court views the evidence in the light most favorable to the 

party against whom the judgment is granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 

70 (2017).

[4,5] Generally, an appellate court will reverse a trial court’s 

decision to receive or exclude the otherwise relevant testimony 

of an expert only when there has been an abuse of discretion. See Cohan v. Medical Imaging Consultants, 297 Neb. 

111, 900 N.W.2d 732 (2017). An abuse of discretion occurs 

when a trial court’s decision is based upon reasons that are 

untenable or unreasonable or if its action is clearly against 

justice or conscience, reason, and evidence. ACI Worldwide 

Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 

156 (2017).

V. ANALYSIS

In essence, Apkan’s appeal assigns that because the court 

erred in admitting the affidavits of Sweeney and Dr. Frey, it 

also erred in granting Life Care’s motion for summary judgment. As discussed below, the district court properly admitted both affidavits into evidence. While Dr. Frey’s expert 

opinion applied the incorrect standard of care, he also found 

Life Care’s action or inaction did not cause Gwelo’s death 

or damages. As a result, we find that Life Care has made a 
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prima facie case for summary judgment to which Apkan did 

not respond with contradictory evidence. More, the cause of 

Gwelo’s death was not obvious to the layperson such that 

Apkan did not need to support his allegations with expert 

testimony. Therefore, we affirm the decision of the district court.

1. Affidavit of Swee

[6] Apkan assigns as error, but does not argue, that the district court erred in admitting Sweeney’s affidavit into evidence. 

Therefore, we review the court’s decision for plain error. See 

Salem Grain Co. v. Consolidated Grain & Barge Co., supra. 

Under Neb. Rev. Stat. § 25-1334 (Reissue 2016), supporting 

affidavits in summary judgment proceedings shall be made 

on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the 

affiant is competent to testify to the matters stated therein. See 

Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 

589 (2012).

Life Care submitted Sweeney’s affidavit, which stated that 

he was the director of the Life Care’s Elkhorn facility and that 

his affidavit was based on his personal knowledge. On our 

review for plain error, we find Sweeney had sufficient personal 

knowledge, his affidavit set forth facts that would be admissible in evidence, and he was competent to testify to the matters stated in his affidavit. The district court did not abuse its 

discretion in entering it into evidence.

2. Affidavit of Dr. F

Apkan assigns that the district court erred in admitting Dr. 

Frey’s affidavit into evidence. He argues that Dr. Frey’s affidavit does not apply the appropriate standard of care in determining whether Life Care was negligent, because his affidavit 

applies the standard of care for “assisted living facilit[ies]” 

while the parties agreed that Life Care is a “skilled nursing 

facility.” Apkan argues that because assisted living facilities 
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and skilled nursing facilities require a different standard of 

care, Dr. Frey’s opinion as to whether Life Care’s conduct met 

the required standard of care is irrelevant. In response, Life 

Care argues that Dr. Frey’s references to the standard of care 

for assisted living facilities was a scrivener’s error that did 

not affect the standard of care he applied. An examination of 

the statutory differences between skilled nursing facilities and 

assisted living facilities is useful to our determination of the 

appropriate standard of care in this case.

(a) Standards of Care

Under Nebraska law, skilled nursing facilities provide a 

higher level of care than assisted living facilities. Neb. Rev. 

Stat. § 71-429 (Reissue 2009) defines a skilled nursing facility as “a facility where medical care, skilled nursing care, 

rehabilitation, or related services and associated treatment are 

provided for a period of more than twenty-four consecutive 

hours to persons residing at such facility who are ill, injured, 

or disabled.” The Nebraska Nursing Home Act regulates these 

facilities. See Neb. Rev. Stat. §§ 71-6008 to 71-6037 (Reissue 

2009). With some exceptions, skilled nursing facilities must 

maintain a licensed registered nurse for at least 8 consecutive 

hours every day and must always have a licensed registered 

nurse or licensed practical nurse on duty. § 71-6018.01(1). 

The Nebraska Nursing Home Act does not place restrictions 

on the types of patients a skilled nursing facility may admit 

based on their needs.

By contrast, Neb. Rev. Stat. § 71-5904 (Reissue 2009), 

at the time relevant to this appeal, intended assisted living 

facilities to promote “resident self-direction and participation 

in decisions which emphasize independence, individuality, 

privacy, dignity, and residential surroundings.” According to 

Neb. Rev. Stat. § 71-5905 (Reissue 2009), assisted living 

facilities are unable to admit certain patients based on the 

level of care they require and, at the time relevant to this 

appeal, provided:
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(1) An assisted-living facility shall not admit or retain a 

resident who requires complex nursing interventions or 

whose condition is not stable or predictable unless:

. . . .

(b) The resident or his or her authorized representative agrees to arrange for the care of the resident 

through appropriate private duty personnel, a licensed 

home health agency, or a licensed hospice[.]

[7] Based on the statutory differences between skilled nursing facilities and assisted living facilities, we conclude they 

have differing standards of care. Dr. Frey applied the standard 

of care for assisted living facilities rather than the standard of 

care for skilled nursing facilities such as Life Care. We cannot dismiss Dr. Frey’s assessment of Life Care based on the 

standard of care applicable to assisted living facilities as a 

mere scrivener’s error. Even if, as Life Care alleges, Dr. Frey’s 

curriculum vitae demonstrates that he was qualified to provide 

an expert opinion as to the standard of care for skilled nursing 

facilities, his failure to explicitly do so makes his opinion as 

to whether Life Care met the applicable standard of care irrelevant. See Green v. Box Butte General Hosp., 284 Neb. 243, 

818 N.W.2d 589 (2012).

But Dr. Frey also opined in his affidavit that the alleged 

actions or inactions of Life Care did not cause Gwelo’s death 

or alleged damages. We find the district court properly admitted the portions of the affidavit describing the element of causation, which we discuss below.

(b) Causation

Regardless of the relevance of Dr. Frey’s affidavit as to the 

standard of care, it provides uncontroverted evidence that Life 

Care’s actions or inactions did not cause Gwelo’s death or 

alleged damages. Because Dr. Frey’s affidavit and curriculum 

vitae establish his credentials to evaluate cause of injuries and 

death, we find the district court did not err in finding sufficient 

foundation for the affidavit under § 25-1334 and admitting it 

into evidence.
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[8] An expert’s opinion is ordinarily admissible under Neb. 

Rev. Stat. § 27-702 (Reissue 2016) if the witness (1) qualifies 

as an expert, (2) has an opinion that will assist the trier of fact, 

(3) states his or her opinion, and (4) is prepared to disclose 

the basis of that opinion on cross-examination. ACI Worldwide 

Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 

156 (2017). Dr. Frey’s affidavit clearly establishes his credentials that qualify him as an expert. In it, Dr. Frey stated his 

opinion about the cause of Gwelo’s death and damages and set 

forth the basis for that opinion.

Apkan insists the district court should have disregarded 

Dr. Frey’s entire expert opinion based on his application of 

the inappropriate standard of care. He bases this argument 

on Green v. Box Butte General Hosp., supra. In Green, a 

rural hospital admitted a paraplegic patient who, during his 

unassisted attempt to move from his wheelchair to a shower 

chair, fell and injured his left shoulder. The patient filed suit 

against the hospital, alleging that the hospital’s negligence 

caused his left shoulder injury. A professor of nursing gave 

deposition testimony in which she opined that the hospital 

violated the standard of care in its treatment of the patient. 

But she did not claim to be familiar with the standard of care 

for rural hospitals. The patient moved for partial summary 

judgment on the issues of negligence and causation, which 

the district court granted. On appeal, the Nebraska Supreme 

Court found the district court erred in granting the patient’s 

motion of summary judgment because the professor did not 

testify about the standard of care applicable to nurses in rural 

hospitals. Id.

The present case is distinguishable from Green. Although 

Dr. Frey did not provide the appropriate standard of care, he 

did provide an opinion about the cause of Gwelo’s death and 

damages. Based on the credentials listed in Dr. Frey’s curriculum vitae, the district court found he was qualified to provide 

expert testimony about causation. Although Apkan provided 

sufficient foundational reasons to disregard Dr. Frey’s opinion 
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about whether Life Care met the applicable standard of care, 

he provides no reason to disregard the contents of the remainder of Dr. Frey’s affidavit regarding causation.

[9] Further in Green, the plaintiff filed the motion for summary judgment. For the court to grant his motion, he was 

required to prove all elements of a negligence case: a legal 

duty owed by the defendant to the plaintiff, a breach of such 

duty, causation, and resulting damages. See id. Here, the 

defendant, Life Care, moved for summary judgment. For the 

court to grant summary judgment to the defendant in a negligence action, the defendant need only prove that there is 

no issue of material fact as to one of the elements such that 

the defendant is entitled to judgment as a matter of law. See, 

e.g., McReynolds v. RIU Resorts and Hotels, 293 Neb. 345, 

880 N.W.2d 43 (2016) (finding hotel guest’s negligence claim 

precluded due to absence of hotel’s duty to guest); Latzel v. 

Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014) (finding summary 

judgment in favor of defendant was appropriate because intervening cause eliminated element of causation from plaintiff’s 

negligence action).

Dr. Frey’s affidavit and attached curriculum vitae establish 

that he is qualified to assess the cause of Gwelo’s alleged 

damages (i.e., her alleged pain and suffering) and subsequent 

death. We find, therefore, that the district court did not abuse 

its discretion in admitting Dr. Frey’s affidavit into evidence at 

the hearing on Life Care’s motion for summary judgment.

3. Common-Knowledge Ex

Does Not App

[10,11] Apkan assigns that the district court erred in finding 

Life Care’s negligence was not so palpable that a layperson 

could recognize it without expert proof. When the character of 

an alleged injury is subjective rather than objective, a plaintiff 

must establish the cause and extent of the injury through expert 

medical testimony. Lewison v. Renner, 298 Neb. 654, 905 

N.W.2d 540 (2018). But the common-knowledge exception, 
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which stems from the doctrine of res ipsa loquitur, applies 

where the causal link between the defendant’s negligence 

and the plaintiff’s injuries is sufficiently obvious to laypersons that a court can infer causation as a matter of law. See, 

Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 

898 (2008); Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 

354 (2004).

After our review of the record, we find the district court 

did not abuse its discretion in finding that the commonknowledge exception does not apply. Gwelo suffered from 

multiple myeloma for 8 years prior to her stay in Life Care’s 

facilities. The record shows that the disease had taken a dramatic toll on her well-being at the time Life Care admitted 

her, and by all accounts, she was nearing the end of her life. 

As Dr. Frey’s affidavit outlined, Gwelo arrived at Life Care 

with many different health problems. No witnesses could 

identify how Gwelo came to be found on the floor or to show 

that she actually fell from her bed. Dr. Frey noted that Gwelo 

suffered from low platelets, which may have caused the brain 

bleed the hospital found after Gwelo left Life Care. Given this 

evidence, the district court did not abuse its discretion in finding that Life Care’s conduct did not obviously cause Gwelo’s 

death or damages such that a layperson could identify it without the assistance of expert testimony.

4. Summary Judgm

[12] Apkan assigns that the district court erred in granting Life Care’s motion for summary judgment. To prevail 

in any negligence action, a plaintiff must show a legal duty 

owed by the defendant to the plaintiff, a breach of such duty, 

causation, and resulting damages. Lewison v. Renner, supra. 

See, also, King v. Crowell Memorial Home, 261 Neb. 177, 

622 N.W.2d 588 (2001) (affirming directed verdict for nursing home in negligence action where plaintiff provided no 

evidence that any actions or inactions of nursing home caused 

decedent’s death).
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[13-15] The party moving for summary judgment has the 

burden to show that no genuine issue of material fact exists 

and must produce sufficient evidence to demonstrate that 

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

Bernard v. McDowall, LLC, 298 Neb. 398, 904 N.W.2d 679 

(2017). A prima facie case for summary judgment is shown 

by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were 

uncontroverted at trial. Id. After the moving party has shown 

facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue 

of material fact that prevents judgment for the moving party. 

Midland Properties v. Wells Fargo, 296 Neb. 407, 893 N.W.2d 

460 (2017).

Life Care, the party moving for summary judgment, provided sufficient evidence through the affidavits of Sweeney 

and Dr. Frey to establish that Gwelo’s alleged injuries and 

death were not caused by any actions or inactions on the 

part of Life Care. Apkan adduced no evidence to support his 

allegation that Gwelo actually fell while in Life Care or how 

she came to be on the floor. And the record contained no 

evidence that Gwelo suffered an actual injury while in the 

Life Care facility. Apkan points to the subdural hematomas 

noted at the hospital after Gwelo left the facility. But after 

Dr. Frey’s review of Gwelo’s extensive medical records, 

he found that the subdural hematomas noted at the hospital 

could have resulted from a spontaneous bleed caused by her 

low platelet count. Apkan did not adduce evidence to contradict Dr. Frey’s findings or to establish what caused the 

subdural hematomas.

Dr. Frey provided an expert medical opinion that Life Care’s 

alleged actions or inactions did not cause Gwelo’s death or 

alleged damages. Gwelo’s death certificate stated that her multiple myeloma was her immediate cause of death. Apkan did 

not adduce evidence to contradict this cause of death.
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Nebraska Court of Appeals Advance S

26 Nebraska Appellate Repor

APKAN v. LIFE CARE CENTERS OF AMERICA

Cite as 26 Neb. App. 154

[16] Life Care sustained its burden to show that no genuine issue of material fact existed as to causation. The burden then shifted to Apkan to prove genuine issues of material fact remained. Apkan failed to do so. Speculation and 

conjecture are not sufficient to establish causation. King v. 

Crowell, supra.

Without evidence that Life Care’s actions or inactions 

caused Gwelo’s injuries and death, the district court could not 

find Life Care liable in negligence for any resulting damages. 

Although our analysis differs, in part, from that of the district 

court in that we do not rely upon Dr. Frey’s opinion regarding 

standard of care, we conclude the district court did not abuse 

its discretion in granting Life Care’s motion for summary 

judgment, because there is no genuine issue of fact regarding causation.

VI. CONCLUSION

The district court did not err in admitting Sweeney’s affidavit or the affidavit of Dr. Frey as it relates to causation. Nor 

did the district court err in finding that the common-knowledge 

doctrine did not apply. We affirm the district court’s grant of 

summary judgment in favor of Life Care, because the evidence 

was unrebutted that the alleged actions or inactions of Life 

Care did not cause Gwelo’s death or damages.

Affirmed