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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS

Cite as 302 Neb. 1025

Arlys Wehrer, appellant, v. Dynamic Life 

and Wellness, P.C., appell

___ N.W.2d ___

Filed April 25, 2019. No. S-18-648.

1. Summary Judgment. Summary judgment is proper only when the 

pleadings, depositions, admissions, stipulations, and affidavits in the 

record 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.

2. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable 

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

the benefit of all reasonable inferences deducible from the evidence.

3. Limitations of Actions: Negligence. In determining whether the statute 

of limitations for professional negligence applies to a plaintiff’s claim, 

the court must determine whether the defendant is a professional and 

was acting in a professional capacity in rendering the services upon 

which the claim is based.

4. Words and Phrases. In determining whether a particular act or service 

is professional in nature, the court must look to the nature of the act or 

service itself and the circumstances under which it was performed.

5. Limitations of Actions: Negligence: Words and Phrases. The definition of “profession” for the purpose of determining the professional 

negligence statute of limitations under Neb. Rev. Stat. § 25-222 (Reissue 

2016) is (1) a calling requiring specialized knowledge and often long 

and intensive preparation including instruction in skills and methods as 

well as in the scientific, historical, or scholarly principles underlying 

such skills and methods; (2) maintaining by force of organization or 

concerted opinion high standards of achievement and conduct; and (3) 

committing its members to continued study and to a kind of work which 

has for its prime purpose the rendering of a public service.

6. Licenses and Permits. A license indicates a person is a professional, 

but that is not the only prerequisite, nor is it dispositive.

Nebraska Supreme Court Online Library

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

06/14/2019 09:07 AM CDT
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7. Words and Phrases. A college degree is not necessarily required in 

order for a particular occupation to constitute a “profession.”

8. Licenses and Permits: Words and Phrases. Licensure alone is generally unreliable in determining whether an occupation is a “profession” 

under Neb. Rev. Stat. § 25-222 (Reissue 2016), because the educational 

requisites for licensure vary widely.

9. Limitations of Actions: Negligence: Words and Phrases. In analyzing whether a particular group or organization meets the definition of a 

“profession” for purposes of Neb. Rev. Stat. § 25-222 (Reissue 2016), 

each of the following principal elements must be demonstrated. The 

occupation is not a “profession” unless: (1) The profession requires 

specialized knowledge; (2) the profession requires long and intensive 

preparation; (3) preparation must include instruction in skills and methods of the profession; (4) preparation must include scientific, historical, 

or scholarly principles underlying the skills and methods of the profession; (5) membership in a professional organization is required; (6) a 

professional organization or concerted opinion within an organization 

regulates and enforces standards for membership; (7) the standards for 

membership include high standards of achievement; (8) the standards 

for membership include high standards of conduct; (9) its members are 

committed to continued study; (10) its members are committed to a specific kind of work; and (11) the specific kind of work has for its primary 

purpose the rendering of a public service.

10. Words and Phrases. A massage therapist is not a “professional” for the 

purposes of applying Neb. Rev. Stat. § 25-222 (Reissue 2016).

Appeal from the District Court for Platte County: Robert R

Steinke, Judge. Reversed and remande

George H. Moyer, of Moyer & Moyer, for appellant.

Karen K. Bailey and L. Paige Hall, of Engles, Ketcham, 

Olson & Keith, P.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Freudenberg, 

NATURE OF CASE

A customer of a massage therapy establishment filed suit for 

damages incurred when an employee, a licensed massage therapist, allegedly caused the customer to become unconscious 
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by improperly compressing a nerve in the customer’s neck. 

The massage therapy establishment moved for summary judgment. The district court granted summary judgment on the 

ground that the customer’s cause of action was time barred 

by the statute of limitations for professional negligence under 

Neb. Rev. Stat. § 25-222 (Reissue 2016).

FACTS

On February 17, 2017, Arlys Wehrer filed a negligence 

action against Dynamic Life Therapy and Wellness, P.C. 

(Dynamic Life). The lawsuit was related to a neck massage 

Wehrer received from a licensed masseuse, Nicole Jones, at 

Dynamic Life on September 2, 2014.

Dynamic Life is a licensed massage therapy establishment in Columbus, Nebraska, and has been in practice since 

2010. Dynamic Life passed an inspection conducted by the 

Division of Public Health of the Department of Health and 

Human Services in 2011 and was issued a license to engage 

in the practice of massage therapy. Jones completed the 

required course of study and training, including 1,000 hours 

of hands-on training, and graduated from the Omaha School 

of Massage Therapy, an approved massage therapy school, in 

2000. Later that year, Jones passed the examination required 

by the Board of Massage Therapy and became a licensed massage therapist. She has been a licensed massage therapist since 

2001 and has been employed by Dynamic Life since 2014. 

At the time of Wehrer’s massage therapy appointment, Jones 

had completed the continuing competency education credits 

required of each licensed massage therapist who is in active 

practice in the State of Nebraska.

During the appointment, Wehrer alleged that she became 

unconscious and fell out of the massage chair, hitting her head 

and shoulder on a wall, after Jones left to get Wehrer water 

15 minutes into the appointment. Wehrer alleged this occurred 

because Jones compressed the vagus nerve in Wehrer’s neck, 

causing her to become unconscious, fall out of the massage 

chair, and sustain injuries.
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Wehrer filed a lawsuit against Dyanmic Life, alleging that 

Wehrer’s injuries were caused by Dynamic Life’s negligence 

as Jones’ employer. Wehrer argued that Jones knew or should 

have known that compressing the vagus nerve while performing a neck massage could cause Wehrer to faint, fall, and sustain injuries. Dynamic Life filed an answer, denying Wehrer’s 

allegations and asserting affirmative defenses, including that 

Wehrer’s claim was time barred by the 2-year statute of limitations set forth in § 25-222.

Dynamic Life filed a motion for summary judgment. At 

some point before the summary judgment hearing, the court 

permitted Wehrer to file a reply to Dynamic Life’s answer. 

Within her reply, Wehrer denied Dynamic Life’s suggestion 

that Jones was providing professional services under § 25-222. 

Alternatively, Wehrer alleged that § 25-222 was unconstitutional, because it is vague and it improperly delegates legislative power to the courts by allowing appellate courts to classify 

who “professionals” are under the statute.

The district court sustained Dynamic Life’s motion for summary judgment and entered a judgment dismissing Wehrer’s 

complaint. The court found that based on Nebraska’s Massage 

Therapy Practice Act and relevant Nebraska Administrative 

Code provisions, massage therapy requires specialized knowledge and skill. The court then concluded that a massage therapist was a “professional” under § 25-222. As a consequence, 

the court found that there was no dispute of material fact that 

Wehrer’s claim was time barred by the application of § 25-222. 

Having dismissed the suit as time barred, the district court did 

not address Wehrer’s constitutional arguments.

ASSIGNMENTS OF ERROR

Wehrer assigns that the district court erred by (1) finding 

that massage therapy is a “profession” and that a massage 

therapist could claim the benefit of § 25-222, (2) failing to 

consider the constitutionality of § 25-222, and (3) sustaining 

Dynamic Life’s motion for summary judgment.
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WEHRER v. DYNAMIC LIFE THERAPY & WELLNESS

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STANDARD OF REVIEW

[1,2] Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the 

record 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.1 In appellate review of a summary judgment, 

the court views the evidence in a light most favorable to the 

party against whom the judgment is granted and gives such 

party the benefit of all reasonable inferences deducible from 

the evidence.2

ANALYSIS

Wehrer contends that the district court erred in finding that 

the statute of limitations for actions in professional negligence 

under § 25-222 applied in this matter. Wehrer argues that the 

work of a massage therapist does not meet the educational 

or high standards of achievement and conduct requirements 

of “professional services” under our jurisprudence. As such, 

Wehrer contends that the general statute of limitations for negligence actions under Neb. Rev. Stat. § 25-207 (Reissue 2016) 

applies. We agree.

Section 25-222 provides in relevant part:

Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty 

in rendering or failure to render professional services 

shall be commenced within two years next after the 

alleged act or omission in rendering or failure to render professional services providing the basis for such 

action[.]

The Legislature has not provided a general statutory definition of “professional” or specifically stated which occupations 

provide professional services.

1 Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999).

2 Id.
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[3,4] We have held that in determining whether the statute 

of limitations for professional negligence applies to a plaintiff’s claim, the court must determine whether the defendant 

is a professional and was acting in a professional capacity 

in rendering the services upon which the claim is based.3 In 

determining whether a particular act or service is professional 

in nature, we must look to the nature of the act or service itself 

and the circumstances under which it was performed.4

We have previously determined that a physician,5 an 

attorney,6 a physical therapist,7 an accountant,8 an engineer,9

an architect,10 and a land surveyor11 were professionals for the 

purposes of the statute of limitations described in § 25-222. We 

have held, in contrast, that a real estate broker12 and a licensed 

general securities agent13 were not professionals for the purposes of § 25-222. It is an issue of first impression whether a 

massage therapist is a professional for the purposes of applying 

this statute.

3 See, Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53 

(2013); Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004); 

Reinke Mfg. Co. v. Hayes, supra note 1.

4 Id.

5 See Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001).

6 See Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002).

7 Churchill v. Columbus Comm. Hosp., supra note 3. 

8 See World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 

1 (1996).

9 Gering - Ft. Laramie Irr. Dist. v. Baker, 259 Neb. 840, 612 N.W.2d 897 

(2000); Board of Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433 

N.W.2d 478 (1988).

10 Board of Regents v. Wilscam Mullins Birge, supra note 9.

11 Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407, 882 N.W.2d 910 

(2016).

12 Tylle v. Zoucha, 226 Neb. 476, 412 N.W.2d 438 (1987).

13 Parks v. Merrill, Lynch, supra note 3.
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[5] The definition of “profession”14 for the purpose of 

determining the professional negligence statute of limitations under § 25-222 is (1) a calling requiring specialized 

knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills 

and methods; (2) maintaining by force of organization or 

concerted opinion high standards of achievement and conduct; and (3) committing its members to continued study 

and to a kind of work which has for its prime purpose the 

rendering of a public service.15 The Legislature, having not 

attempted to modify this definition for purposes of § 25-222, 

has acquiesced in our interpretation and determination of 

the definition of “profession” for the purpose of applying 

the statute.16

[6] We have emphasized that this definition does not rely 

solely on the possession of a license.17 To do so would distort the definition, as it would include many occupations that 

were traditionally not considered to be professions.18 A license 

indicates a person is a professional, but that is not the only 

prerequisite, nor is it dispositive.19

[7] The definition of “profession” adopted for purposes 

of § 25-222 instead “stresses the long and intensive program 

of preparation to practice one’s chosen occupation traditionally associated only with professions.”20 It does not stress 

14 See Webster’s Third New International Dictionary of the English Language, 

Unabridged 1811 (1993).

15 See, Parks v. Merrill, Lynch, supra note 3; Tylle v. Zoucha, supra note 12.

16 See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).

17 Tylle v. Zoucha, supra note 12.

18 Id.

19 Churchill v. Columbus Comm. Hosp., supra note 3; Jorgensen v. State Nat. 

Bank & Trust, 255 Neb. 241, 583 N.W.2d 331 (1998).

20 Tylle v. Zoucha, supra note 12, 226 Neb. at 480, 412 N.W.2d at 441.
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the difference between manual and intellectual labor; which, 

while a trademark of the traditional professions, would seem 

to exclude some occupations commonly considered to be professions even though manual or physical.21 Accordingly, a college degree is not necessarily required in order for a particular 

occupation to constitute a “profession.”22 Still, we have placed 

great emphasis on college degrees in considering whether a 

particular occupation is a profession.23 This emphasis recognizes that other jurisdictions hold that a “profession” requires 

at a minimum a college degree in a specific field—though a 

college degree does not automatically designate the occupation 

as a professional practice.24

Thus, in Georgetowne Ltd. Part. v. Geotechnical Servs.,

25

we held that architects and engineers are professionals under 

§ 25-222, emphasizing that the engineers were registered and 

licensed civil engineers, who had college degrees. We stated 

that based on this, “[t]here can be no doubt that [the engineers were] rendering professional services as defined by this 

court.”26 In Churchill v. Columbus Comm. Hosp.,

27 we likewise 

found that physical therapists were professionals under the 

statute, because the Physical Therapy Practice Act required 

physical therapists to be licensed and, in order to obtain a 

21 Id.

22 Churchill v. Columbus Comm. Hosp., supra note 3; Cooper v. Paap, 10 

Neb. App. 243, 634 N.W.2d 266 (2001).

23 See, Jorgensen v. State Nat. Bank & Trust, supra note 19; Georgetowne 

Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988).

24 See, e.g., Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 749 

N.E.2d 161, 725 N.Y.S.2d 592 (2001); New York & Presbyterian Hosp. v. 

Tishman, 180 Misc. 2d 193, 688 N.Y.S.2d 424 (1999); Kuntz v. Muehler, 

603 N.W.2d 43 (N.D. 1999); Garden v. Frier, 602 So. 2d 1273 (Fla. 1992); 

Pierce v. AALL Ins. Inc., 531 So. 2d 84 (Fla. 1988).

25 Georgetowne Ltd. Part. v. Geotechnical Servs., supra note 23.

26 Id., 230 Neb. at 27, 430 N.W.2d at 38.

27 Churchill v. Columbus Comm. Hosp., supra note 3.
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license, the physical therapists were required to complete an 

approved educational program that generally includes some 

form of college degree and an examination.28 We found that 

these requirements indicate that physical therapists complete 

the “‘long and intensive program of preparation’” that is 

required of professionals.29 We additionally considered the fact 

that physical therapists render a public service and are subject 

to both mandatory continuing education requirements and professional discipline.30

[8] In contrast, in Tylle v. Zoucha,

31 we held that a real 

estate agent was not a professional under § 25-222, despite 

the fact that he was required to complete approved postsecondary coursework and pass a licensing examination 

before obtaining his license, as well as the fact that the 

State Real Estate Commission was authorized to investigate 

and discipline license holders for unfair trade practices. We 

held that these factors did not transform a licensed occupation into a licensed profession for purposes of § 25-222.32

Similarly, in holding in Parks v. Merrill, Lynch,

33 that a 

licensed general securities agent was not a professional under 

§ 25-222, we focused on the fact that the requisite training from employers in providing services for clients did 

not require long and intensive training or preparation on 

a par with a college degree—or even preparation equivalent to that required for a real estate broker license. We 

again observed that licensure alone is generally unreliable in 

determining whether an occupation is a “profession” under 

28 See, generally, id.

29 Id. at 766, 830 N.W.2d at 58, quoting Tylle v. Zoucha, supra note 12.

30 Churchill v. Columbus Comm. Hosp., supra note 3.

31 Tylle v. Zoucha, supra note 12. See, also, Parks v. Merrill, Lynch, supra

note 3.

32 See Tylle v. Zoucha, supra note 12.

33 Parks v. Merrill, Lynch, supra note 3.
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§ 25-222, because the educational requisites for licensure 

vary widely.34

We consider each of the elements set forth in the Tylle definition of “profession” to be necessary and not merely possible 

factors for consideration.35 Therefore, to constitute a “profession” within the meaning of § 25-222, a particular type of 

endeavor must meet all of the principal elements.

[9] Our case law has discussed many specific factors to 

be considered in determining whether a particular occupation constitutes a profession.36 Though the list of factors set 

forth in Churchill is not necessarily complete, we conclude 

that in analyzing whether a particular group or organization meets the definition of a “profession” for purposes of 

§ 25-222, each of the following principal elements must be 

demonstrated. The occupation is not a “profession” unless: 

(1) The profession requires specialized knowledge; (2) the 

profession requires long and intensive preparation; (3) preparation must include instruction in skills and methods of the 

profession; (4) preparation must include scientific, historical, 

or scholarly principles underlying the skills and methods of 

the profession; (5) membership in a professional organization 

is required; (6) a professional organization or concerted opinion within an organization regulates and enforces standards 

for membership; (7) the standards for membership include 

high standards of achievement; (8) the standards for membership include high standards of conduct; (9) its members are 

committed to continued study; (10) its members are committed to a specific kind of work; and (11) the specific kind 

34 Id.

35 See Tylle v. Zoucha, supra note 12.

36 See, e.g., Churchill v. Columbus Comm. Hosp., supra note 3 (listing 

factors to consider in “profession” determination, including college 

degree, licensing, protection of citizens, public service, board to enforce 

standards, written examination, verified experience, continuing education 

requirements, and professional disciplinary authority).
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of work has for its primary purpose the rendering of a public service.

When analyzing whether a particular group or organization 

meets the definition of a “profession” for purposes of § 25-222, 

one should be able to affirmatively answer each element set 

forth above. If this cannot be accomplished, then, one should 

anticipate that the group or organization does not fall within 

the scope of § 25-222.

Neb. Rev. Stat. § 38-1709 (Reissue 2016) of the Massage 

Therapy Practice Act requires that any person engaging in 

the practice of massage therapy must have a license. Neb. 

Rev. Stat. § 38-1710 (Reissue 2016) requires that in order for 

a massage therapist to become licensed to practice, “[e]very 

applicant for an initial license to practice massage therapy 

shall (1) present satisfactory evidence that he or she has 

attained the age of nineteen years, (2) present proof of graduation from an approved massage therapy school, and (3) pass an 

examination prescribed by the board.” To receive a credential 

to practice massage therapy, an individual must have “completed a course of study and training in massage therapy not 

less than 1,000 hours, distributed over a term of not less than 

9 months.”37

Additionally, pursuant to Neb. Rev. Stat. § 84-906.05 

(Reissue 2014), we take judicial notice of the regulations of 

the Nebraska Administrative Code relevant to the regulation 

of massage therapy, as the district court did.38 Agency regulations, properly adopted and filed with the Secretary of State 

of Nebraska, have the effect of statutory law,39 and the parties do not dispute that the contents of the current regulations 

37 172 Neb. Admin. Code, ch. 81, § 003.01(3) (2010).

38 See, Merie B. on behalf of Brayden O. v. State, 290 Neb. 919, 863 N.W.2d 

171 (2015); JCB Enters. v. Nebraska Liq. Cont. Comm., 275 Neb. 797, 749 

N.W.2d 873 (2008).

39 City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839 

(2002).
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denoting the massage therapist licensure requirements are 

controlling. The Nebraska Administrative Code requires that 

“[e]ach person holding an active credential within the state 

must, on or before the date of expiration of the credential, 

comply with the continuing competency requirements for his/

her profession.”40 Specifically, a licensed massage therapist 

in Nebraska must complete 24 hours of approved continuing competency hours/credits during the preceding 24-month 

period on or before November 1 of each odd-numbered year.41

The licensure and discipline of massage therapists in Nebraska 

is overseen broadly by the Division of Public Health of the 

Department of Health and Human Services.42

[10] These licensing requirements to become a massage 

therapist do not require long and intensive training or preparation, including instruction in skills and methods as well as 

in the scientific, historical, or scholarly principles underlying 

such skills and methods, which would be comparable to that 

of a college degree. Nor does the record show the standards 

for membership in the occupation of massage therapy include 

high standards of achievement. Based on the record before 

us, Dynamic Life has failed to show that the requirements to 

become a licensed massage therapist demand high standards of 

training, preparation, and achievement sufficient to render massage therapy a “profession” under the statute.43 We therefore 

hold that a massage therapist is not a “professional” for the 

purposes of applying § 25-222.

The district court erred in concluding that a massage therapist is a professional under § 25-222 and in granting summary 

judgment in favor of Dynamic Life on that ground. Having 

found that massage therapists are not “professionals” under 

40 Neb. Admin. Code, supra note 37, § 006.

41 Id., § 006.01.

42 See, id., §§ 002(14) and 008; Neb. Rev. Stat. § 38-1715 (Reissue 2016).

43 See Parks v. Merrill, Lynch, supra note 3.
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§ 25-222, we need not address Wehrer’s alternative assignment of error and argument that the district court erred in failing to consider whether § 25-222 is unconstitutional.

CONCLUSION

For the foregoing reasons, we find that the district court 

erred in granting summary judgment in favor of Dynamic Life 

and reverse the decision and remand the cause to the district 

court accordingly.

Reversed and remand