S-16-0678, Christopher Bell, Ashley Bell, and Christopher Bell, as Special Administrator for the Estate of Cash Bell (Appellants) v. Grow with Me Childcare and Preschool, LLC, a domestic LLC organized under the laws of Nebraska, La Petite Academy, Inc., a foreign corporation organized under the laws of Delaware, Jennifer Schmaderer, and Lisa Hampson
District Court for Douglas County, Hon. J. Michael Coffey
Attorneys: Mark C. Laughlin, David C. Mullin, and Jacqueline M. DeLuca (Fraser Stryker PC LLO)(Appellants) --- Richard J. Gilloon, Bonnie M. Boryca, and MaKenna Dopheide (Erickson | Sederstrom, P.C.) (Appellees Grow with Me and Jennifer Schmaderer) --- Mark J. Daly, Andrew T. Schlosser, and MaryBeth Frankman (Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O.) (Appellees La Petite Academy and Lisa Hampson)
Civil: Wrongful death; Negligence
Proceedings below: The district court granted Appellees’ motions for a directed verdict on the basis that Appellants did not adequately show Appellees were the proximate cause of the child’s death.
Issues: The district court erred when it 1) granted the Appellees’ motions for directed verdict, 2) granted the Appellees' motions for directed verdict because, when ruling on such motions, it did not give Appellants the benefit of every controverted fact and all reasonable inferences from the evidence, 3) granted the Appellees' motions for directed verdict because its ruling on these motions was based upon the district court's own conclusions concerning the weight of certain evidence 4) granted the Appellees' motions for directed verdict because its ruling on these motions was based upon the district court's own conclusion regarding the existence of proximate cause, which is an issue of fact that should be determined by the jury, 5) granted the Daycares' motions for directed verdict because, based upon the evidence offered at trial, a reasonable juror could conclude the Daycares were a proximate cause of Cash Bell's death, and 6) wrongfully excluded the following evidence at trial:
A. the live testimony and deposition testimony of Michael Winchester;
B. the live testimony and deposition testimony of Sergeant Lance Worley;
C. the deposition testimony of Martin Conboy;
D. Diane Martig's testimony concerning the results of her own investigations which presented facts similar to the child abuse allegations at La Petite and Grow with Me;
E. Deputy Brenda Wheeler's testimony concerning the results of her own investigations which presented facts similar to the child abuse allegations at La Petite and Grow with Me; and
F. DHHS records which contained facts similar to the child abuse allegations at La Petite and Grow with Me and set forth DHHS's ultimate finding in such cases.
Issues on Cross-Appeal (Grow with Me and Jennifer Schmaderer): The district court should have entered judgment as a matter of law because 1) Appellants could not and did not prove the prima facie element of their case of breach of duty because Cullen’s act of killing the child was not a reasonably foreseeable risk of harm based on what Appellee knew or was alleged to have known about her, 2) Appellants did not establish that Appellee owed them or their son a duty of care based on any act or omission by Appellee that created such a duty, 3) Appellants did not establish that Appellee owed them or their son a duty of care arising from a special relationship, and 4) there is no private right of action or remedy for Appellants arising from a violation of Neb. Rev. Stat. § 28-711 by Appellee, if any had occurred.
Issues on Cross-Appeal (La Petite Academy and Lisa Hampson): The district court erred in 1) denying La Petite’s Motion to Dismiss for failure to state a claim, 2) denying La Petite’s Motion for Summary Judgment, 3) finding La Petite owed a duty to Appellants to report the suspected abuse or neglect of a child, 4) overruling La Petite’s Motion in limine to exclude the testimony of Sarah Cullen concerning how she would have responded to hypothetical reports, investigations, charges, or convictions for child abuse or neglect, 5) overruling La Petite’s Motion in limine to exclude testimony of Michael Winchester concerning whether or not he would have issued a citation, and 6) overruling La Petite’s Motion in limine to exclude the testimony of Sgt. Lance Worley concerning whether or not he would have issued a citation.