A.W. v. Lancaster County

Supreme Court of Nebraska · 2010 · Torts

TortsNegligenceDutyForeseeabilitySchool liabilityPremises securitysummary judgmentforeseeability

Facts

A stranger, Joseph Siems, entered Arnold Elementary School through the main entrance during the school day without signing in. Several school employees saw him, thought he looked out of place, and made some inquiries, but they lost track of him and did not ensure he had no contact with students. During that time, 5-year-old C.B. entered a restroom alone and was sexually assaulted by Siems. After the assault was reported, school personnel initiated a lockdown and police detained Siems.

Issue

Whether LPS was entitled to summary judgment on the ground that the assault was not foreseeable, and specifically whether foreseeability should be treated as part of the court's duty analysis or as part of the factfinder's breach analysis. Also, whether the evidence created a genuine issue of material fact as to whether LPS exercised reasonable care after Siems entered the school.

Rule

Foreseeability is not a factor for courts to consider when determining duty. Ordinarily, an actor has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm, and foreseeability is instead part of the breach inquiry for the factfinder, unless no reasonable person could differ. In deciding negligence, primary considerations include the foreseeable likelihood of harm, the foreseeable severity of harm, and the burden of precautions to eliminate or reduce the risk.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a middle school in Omaha, a delivery driver leaves a side gate propped open while unloading supplies. A stranger walks onto campus, wanders near the gym, and later injures a student. The school district moves for summary judgment, arguing it owed no duty because this particular attack was not foreseeable.

How should the court analyze the district's argument?

Explanation. Under the majority's adoption of the Restatement (Third), foreseeability is not part of the court's duty analysis. An actor ordinarily has a duty to exercise reasonable care when its conduct creates a risk of physical harm. Whether this particular injury was foreseeable is generally part of the breach inquiry for the factfinder, unless reasonable minds could not differ.