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to modify the dissolution decree. Without evidence of fraud
or gross inequity, modification of the decree was an abuse of
discretion. We vacate the portion of the district court’s order
purporting to do so.
Finally, we address the portion of Rocky’s motion seeking
an order determining that he had performed his obligation
under the assistance clause. Because the district court did not
determine whether, based on the evidence before it, Rocky had
fully complied with the assistance clause, we remand the cause
with direction that the court do so.
Vacated in part and remanded with direction.
Donald P eterson, appellant, v. Kings Gate
Partners - Omaha I, L.P., and Picerne
Kings Gate, LLC, appellees.
___ N.W.2d ___
Filed April 10, 2015. No. S-14-383.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true all facts which are
well pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff’s conclusion.
3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure
to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a
claim to relief that is plausible on its face. In cases in which a plaintiff does not
or cannot allege specific facts showing a necessary element, the factual allega-
tions, taken as true, are nonetheless plausible if they suggest the existence of the
element and raise a reasonable expectation that discovery will reveal evidence of
the element or claim.
4. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
5. Negligence: Proof. In order to recover in a negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
6. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
7. ____. The existence of a duty generally serves as a legal conclusion that an actor
must exercise that degree of care as would be exercised by a reasonable person
under the circumstances.
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PETERSON v. KINGS GATE PARTNERS 659
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8. ____. Duty rules are meant to serve as broadly applicable guidelines for public
behavior, i.e., rules of law applicable to a category of cases.
9. ____. Whether a duty exists is a policy decision.
10. ____. Special relationships can give rise to a duty.
Appeal from the District Court for Douglas County: Joseph S.
Troia, Judge. Reversed and remanded for further proceedings.
Thomas M. Locher, Amy M. Locher, and Douglas W.
Krenzer, of Locher, Pavelka, Dostal, Braddy & Hammes,
L.L.C., for appellant.
Mary M. Schott and Ronald E. Frank, of Sodoro, Daly,
Shomaker & Selde, P.C., L.L.O., for appellees.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
Donald Peterson filed suit against Kings Gate Partners -
Omaha I, L.P., and Picerne Kings Gate, LLC (collectively
Kings Gate), for injuries Peterson received following an assault
by Floyd Wallace on Kings Gate’s premises. The district court
granted Kings Gate’s motion to dismiss for failure to state
a claim. Peterson appeals. We reverse, and remand for fur-
ther proceedings.
FACTUAL BACKGROUND
Peterson filed his first amended complaint against Kings
Gate on January 7, 2014. That complaint alleged that Peterson
and Wallace’s mother were both residents of Kings Gate senior
apartment homes in Omaha, Nebraska. According to the com-
plaint, Peterson and Wallace’s mother lived across the hall
from each other.
According to the complaint, despite lease provisions prohib-
iting it, Wallace resided with his mother in her apartment. On
or about December 8, 2012, Wallace’s mother was notified that
due to Wallace’s residing in her apartment, she was in violation
of her lease. On December 17, Wallace assaulted Peterson in
Peterson’s apartment.
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Peterson alleged in his complaint that Kings Gate con-
ducted a background check on Wallace. After the assault
occurred, Peterson was informed on one occasion that the
background check did not reveal any felony convictions,
and he was informed on another occasion that drug-related
felony convictions were found. Peterson further alleges that,
in fact, Wallace had several convictions for crimes of vio-
lence, including assault and battery in 2000; violation of a
protection order for verbally assaulting a mentally challenged
woman via telephone in 2002; and abuse of a vulnerable adult
in 2004.
Peterson alleged that Kings Gate was negligent in failing
to (1) exercise reasonable care in performing a criminal back-
ground check on Wallace, (2) exclude Wallace from the Kings
Gate senior apartment homes premises, (3) warn tenants about
or otherwise protect tenants from Wallace, and (4) provide safe
premises for tenants.
On January 14, 2014, Kings Gate filed a motion to dis-
miss for failure to state a claim. That motion was granted
on April 23, with the district court’s reasoning that Kings
Gate had no duty to protect Peterson from Wallace. Peterson
appealed.
ASSIGNMENTS OF ERROR
On appeal, Peterson assigns, restated, that the district court
erred in (1) granting Kings Gate’s motion to dismiss and (2)
finding that Kings Gate owed no duty to Peterson.
STANDARD OF REVIEW
[1-3] A district court’s grant of a motion to dismiss is
reviewed de novo.1 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plain-
tiff’s conclusion.2 To prevail against a motion to dismiss for
1
Bruno v. Metropolitan Utilities Dist., 287 Neb. 551, 844 N.W.2d 50
(2014).
2
Id.
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failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible
on its face. In cases in which a plaintiff does not or cannot
allege specific facts showing a necessary element, the factual
allegations, taken as true, are nonetheless plausible if they
suggest the existence of the element and raise a reasonable
expectation that discovery will reveal evidence of the element
or claim.3
[4] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below.4
ANALYSIS
The sole issue presented by this appeal is whether Kings
Gate owed a duty to Peterson such as to overcome Kings
Gate’s motion to dismiss. Peterson argues that Kings Gate
owes a duty of either reasonable care under A.W. v. Lancaster
Cty. Sch. Dist. 00015 and § 7 of the Restatement (Third) of
Torts,6 or by virtue of the special relationship owed by a land-
lord to its tenant under § 40 of the Restatement.7 Peterson also
argues that once Kings Gate undertook a background check on
Wallace, it had a duty under § 43 of the Restatement8 to under-
take it nonnegligently.
[5,6] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff,
a breach of such duty, causation, and damages.9 The ques-
tion whether a legal duty exists for actionable negligence
3
Id.
4
Id.
5
A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
6
1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 7 (2010).
7
2 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 40 (2012).
8
Id., § 43.
9
Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).
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662 290 NEBRASKA REPORTS
is a question of law dependent on the facts in a particu-
lar situation.10
In the past, we used the risk-utility test to determine the
existence of a tort duty.11 But in A.W., we abandoned the
risk-utility test and adopted the duty analysis set forth in the
Restatement (Third) of Torts.12 We generally held that
foreseeable risk is an element of the determination of
negligence, not legal duty. In order to determine whether
appropriate care was exercised, the fact finder must assess
the foreseeable risk at the time of the defendant’s alleged
negligence. The extent of foreseeable risk depends on the
specific facts of the case and cannot be usefully assessed
for a category of cases; small changes in the facts may
make a dramatic change in how much risk is foresee-
able. Thus, courts should leave such determinations to the
trier of fact unless no reasonable person could differ on
the matter.13
[7-9] After A.W., the existence of a duty generally serves as
a legal conclusion that an actor must exercise that degree of
care as would be exercised by a reasonable person under the
circumstances.14 Moreover, “[d]uty rules are meant to serve as
broadly applicable guidelines for public behavior, i.e., rules of
law applicable to a category of cases.”15 Whether a duty exists
is a policy decision.16
[10] But special relationships can give rise to a duty.17 And
in this case, the issue presented is of the duty owed by a land-
lord to a tenant. Section 40 of the Restatement provides for
such a duty:
10
Id.
11
See id.
12
A.W., supra note 5.
13
Id. at 216, 784 N.W.2d at 917.
14
See id.
15
Id. at 212-13, 784 N.W.2d at 914-15.
16
A.W., supra note 5.
17
Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012); A.W.,
supra note 5.
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PETERSON v. KINGS GATE PARTNERS 663
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(a) An actor in a special relationship with another owes
the other a duty of reasonable care with regard to risks
that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty pro-
vided in Subsection (a) include:
....
(6) a landlord with its tenants . . . .18
We previously cited to § 40, and explicitly adopted the duty
set forth in subsection (b)(4), dealing with the employment
relationship.19 We remain persuaded that the reasoning of the
Restatement (Third) is consistent with our case law, notably,
the framework we set forth in A.W., and accordingly find that
the legal duty applicable here is that set forth by § 40(b)(6),
pertaining to the landlord-tenant relationship.
We recognize our prior case law holds that there is no gen-
eral duty of a landlord to ensure the safety of tenants.20 But
this case law predates our decision in A.W. and is not helpful in
the duty determination presented here. And in any case, as we
noted in A.W., the
endorsement of the Restatement (Third) [is not] a fun-
damental change in our law. It is better understood as
rearranging the basic questions that are posed by any
negligence case and making sure that each question has
been put in its proper place. But it does not change those
questions. To say, as we have in the past, that a defendant
had no duty, under particular circumstances, to foresee
a particular harm is really no different from saying that
the defendant’s duty to take reasonable care was not
breached, under those circumstances, by its failure to
foresee the unforeseeable.21
Thus, while there might now be a duty in such a situation,
such a duty does not imply either a breach of that duty or
liability for negligence. As we noted, the questions are the
18
2 Restatement, supra note 7 at 40.
19
See Martensen, supra note 17.
20
See C.S. v. Sophir, 220 Neb. 51, 368 N.W.2d 444 (1985).
21
A.W., supra note 5, 280 Neb. at 217, 784 N.W.2d at 917-18.
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same—it is the arrangement of those questions into the ele-
ments of negligence that has changed.
Peterson’s appeal was dismissed for failure to state a claim,
with the district court’s concluding that Kings Gate owed no
duty to Peterson. At this stage in the proceedings, we conclude
that Peterson has stated a claim for relief that is plausible on
its face and therefore survives a motion to dismiss. Kings Gate
did owe a duty under § 40 of the Restatement; it remains for
the finder of fact to determine whether Kings Gate breached
that duty. As such, we reverse the decision of the district court
granting Kings Gate’s motion to dismiss, and remand the cause
for further proceedings.
CONCLUSION
The decision of the district court is reversed, and the cause
is remanded for further proceedings.
R eversed and remanded for
further proceedings.
Wright, J., not participating.
Credit Management Services, Inc., appellant,
v. L orinda Jefferson, appellee.
___ N.W.2d ___
Filed April 10, 2015. No. S-14-545.
1. Judgments: Costs: Appeal and Error. The standard of review for an award of
costs is whether an abuse of discretion occurred.
2. Judgments: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court must resolve independently of the trial court.
4. ____: ____. Absent a statutory indication to the contrary, an appellate court gives
words in a statute their ordinary meaning.
5. ____: ____. An appellate court does not consider a statute’s clauses and phrases
as detached and isolated expressions. Instead, the whole and every part of the
statute must be considered in fixing the meaning of any of its parts.
6. Statutes. Statutes which change or take away a common-law right must be
strictly construed.