A-15-0299, Tibbetts (Appellant) v. Mosaic, Inc.
District Court of Hall County, District Judge William T. Wright
Attorneys for Appellant: Brian D. Craig and Dianne D. DeLair (Disability Rights Nebraska)
Attorneys for Appellee: Stephen G. Olson, II and Greg Schreiber (Engles, Ketcham, Olson & Keith, P.C.)
Civil Action: Negligence; Summary Judgment
Action taken by the Trial Court The district court determined that the nature of Tibbetts' injuries were subjective, and consequently medical expert testimony was required to prove causation. Because Tibbetts did not provide medical expert testimony, the court found that Tibbetts was unable to prove an essential element of her negligence claim, and therefore summary judgment was appropriate.
Assignments of Error and Issues on Appeal: Did the district court err in determining that Tibbetts' injuries were subjective rather than objective and therefore requiring Tibbetts to prove causation through expert medical testimony? Did the district court err in finding that Tibbetts could not prove by a preponderance of the evidence that an assault occurred?
Extended Case Summary (for Educational Purposes):
A-15-0299, Tibbetts (Appellant) v. Mosaic, Inc.
District Court of Hall County, District Judge William T. Wright
Attorneys for Appellant: Brian D. Craig and Dianne D. DeLair (Disability Rights Nebraska)
Attorneys for Appellee: Stephen G. Olson, II and Greg Schreiber (Engles, Ketcham, Olson & Keith, P.C.)
Civil Action: Negligence; Summary Judgment
Background: Tibbetts is an individual with significant intellectual disabilities and is nonverbal, requiring 24-hour assistance with daily life activities. At all relevant times, Tibbetts had a two bedroom apartment in Grand Island, Nebraska. Three to four days a week, Mosaic provided 24-hour assistance to Tibbetts. Tibbets stayed with her parents the other days of the week.
On September 5, 2008, a Mosaic employee began her shift at Tibbetts' apartment and stayed through September 7. The employee's husband and child stayed at Tibbetts' apartment as well. After Tibbetts' mother took Tibbetts to her home on September 7, the mother noticed various injuries to her back, lower body, and private areas. The mother called a physician that night, who said over the phone that the symptoms indicated hemorrhoids.
The next day, Tibbetts' mother took Tibbetts to the hospital where Tibbetts was examined. The nurse who conducted the exam said she believed Tibbetts was sexually assaulted. Another exam of Tibbetts did not result in any physical evidence of sexual assault. The police commenced a sexual assault investigation, but there was not enough evidence to pursue criminal charges.
In 2012, Tibbetts (through her legal guardians) filed this negligence suit against Mosaic alleging that Tibbetts had been sexually assaulted and that Mosaic was negligent for its failure to protect her from unreasonable foreseeable harm while in their care and custody. Mosaic filed a motion for summary judgment, asking the district court to enter judgment in its favor and dismiss Tibbetts' complaint. The district court determined that Tibbetts' injuries were subjective, rather than objective, in nature, and thus Tibbetts was required to provide medical expert testimony to prove causation, which she did not.
Action taken by the Trial Court: The district court determined that the nature of Tibbetts' injuries were subjective, rather than objective, in nature, and consequently medical expert testimony was required to prove the cause of her alleged injuries. Because Tibbetts did not provide medical expert testimony, the court found that Tibbetts was unable to prove an essential element of her negligence claim (causation). The court further determined that Tibbetts failed to present evidence that would prove by a preponderance of the evidence that a sexual assault had occurred. The court granted summary judgment in favor of Mosaic and dismissed Tibbetts' complaint. Tibbetts' guardians filed this appeal.
Assignments of Error on Appeal: Tibbetts first argues that the district court erred when it determined that Tibbetts' injuries were subjective and not objective. Tibbetts contends that her injuries were objective and that a lay person would understand that her injuries were a result of sexual assault, and therefore, no expert testimony was required. Tibbetts further asserts that the district court erred when it determined that she did not present sufficient evidence that would prove that a sexual assault occurred, and she argues that the evidence she presented creates a genuine issue of fact as to whether a sexual assault occurred.