Jeffrey J. Knoll, appellant, v.
Knoll v. Board of Regents, 258 Neb. 1
Filed October 29, 1999. No. S-97-1292.
1. Summary Judgment: Appeal and Error. Inreviewing a summary judgment, an appellate court views the evidence ina light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deduciblefrom the evidence.
2. Negligence. The threshold inquiry inany negligence action is whether the defendant owed the plaintiff a duty.Actionable negligence cannot exist if there is no legal duty to protectthe plaintiff from injury.
3. ___. In determining whether a duty exists,this court employs a risk-utility test, considering (1) the magnitude ofthe risk, (2) the relationship of the parties, (3) the nature of the attendantrisk, (4) the opportunity and ability to exercise care, (5) the foreseeabilityof the harm, and (6) the policy interest in the proposed solution. Foreseeabilityalone is not dispositive.
4. Negligence: Invitor-Invitee: Liability. Abusiness proprietor is liable for the adverse actions of a third party against an invitee when those actions were reasonably foreseeable to the proprietor.
5. Negligence: Liability. A third party’saction need not amount to a violation of the criminal law to give rise to liability; such an act may be sufficient even if it is merely accidental.
6. Negligence: Liability: Invitor-Invitee:Proof. Landowner liability is predicated on proof of the possessor’ssuperior knowledge, actual or constructive, of dangers to which the inviteeis subjected and of which the invitee is unaware. However, the “superiorknowledge rule” does not apply when the alleged negligence involves liabilityfor the intentionally harmful acts of a third party.
7. Negligence. Whether a legal duty existsfor actionable negligence is a question of law dependent on the facts ina particular situation.
8. Negligence: Case Overruled. Foreseeability,in the duty context, is a legal question for the court. To the extent that Ratiganv. K.D.L., Inc. , 253 Neb. 640, 573 N.W.2d 739 (1998); Gans v. ParkviewPlaza Partnership , 253 Neb. 373, 571 N.W.2d 261 (1997); Hulett v.Ranch Bowl of Omaha , 251 Neb. 189, 556 N.W.2d 23 (1996); and K.S.R.v. Novak & Sons, Inc. , 225 Neb. 498, 406 N.W.2d 636 (1987), indicateto the contrary, they are hereby overruled.
9. Negligence: Criminal Law. In analyzingforeseeability in the duty context, the Supreme Court has noted that aprior criminal history need not involve the same suspect to make the furthercriminal acts reasonably foreseeable, nor need it involve the same typeof crime. Likewise, the prior acts need not have occurred on the premises.Even one such prior incident may be enough. It is the totality of the circumstances,not solely the number or location of prior incidents, that must be consideredin determining foreseeability.
Appeal from the District Courtfor Lancaster County: Bernard J. McGinn, Judge. Reversed.
Anne K. Holland and J. JosephMcQuillan, of Walentine, O’Toole, McQuillan & Gordon, and James M.McQuillan and Edward D. Steenburg, of McQuillan, Steenburg & McQuillan,P.C., for appellant.
Richard R. Wood, General Counselfor the University of Nebraska, and John C. Wiltse for appellee.
Hendry, C.J., Wright, Connolly,Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
The appellant, Jeffrey J. Knoll,was a student at the University of Nebraska at Lincoln (UNL). He was hazedby members of the Phi Gamma Delta fraternity (FIJI), which hazing resultedin severe injuries. Knoll brought a tort action against the Board of Regentsof the University of Nebraska (University), and both parties filed forsummary judgment. The trial court granted summary judgment to the University,finding no duty. This case presents the question whether the Universityowed Knoll a duty to exercise reasonable care to protect Knoll from FIJI’sactions. We conclude that whether a duty was owed is a question of lawand determine that a duty was owed. We reverse.
The stipulated facts and depositiontestimony offered at the hearing on the parties motion for summary judgmentshow the following: On November 3, 1993, during FIJI’s “pledge sneak,”four or five active FIJI members met Knoll in the basement of Andrews Hallon the UNL campus. Knoll attempted to run, was tackled by the active members,and was then handcuffed to an active member. Knoll was taken to the FIJIhouse where he was handcuffed to a radiator. While handcuffed to the radiator,Knoll was given shot glasses of an alcoholic liquor and cans of beer byFIJI’s officers and active members. Over the course of approximately 21/2hours, Knoll consumed 15 shots of brandy and whiskey and 3 to 6 cans ofbeer. Knoll became severely intoxicated and could no longer provide forhis own welfare and safety. After becoming ill due to his intoxication,Knoll was taken to a restroom on the third floor of the FIJI house by hiscaptors and handcuffed to a toilet pipe. Knoll broke loose from the handcuffswhile unattended in the restroom and attempted to escape by exiting outthe third-floor restroom window and sliding down a drainpipe. Knoll fellfrom the third-floor window to the ground below and suffered severe injuries.Knoll had a blood alcohol content of .209 grams of alcohol per 100 millilitersof blood. Knoll was 19 years of age when he fell and was injured.
The FIJI house is situatedon land owned by the Phi Gamma Delta House Corporation. The FIJI houseis considered to be a student housing unit subject to the UNL Student Codeof Conduct (Code). The use of any alcoholic beverage in a student housingunit was a violation of the student housing regulations then in effectand a violation of the Code. Conduct that is unreasonably dangerous tothe health or safety of other persons, or oneself, was also a violationof the Code, as was hazing. Unmarried students who were under the age of19 at the beginning of the fall semester of the 1993-94 academic year wererequired by the University to live in a student housing unit during theirfreshman year.
It is routine for fraternitieslocated at the UNL campus to participate in pledge sneak events. Thesefraternities are supposed to complete a form disclosing whether a pledgesneak event is planned and the details of that event, and file the formwith the University. FIJI had not filed a pledge sneak form as of the dateKnoll fell. However, the University was aware of at least two hazing incidentsinvolving other fraternities and was aware of several instances of criminalconduct involving FIJI members.
Knoll filed suit against theUniversity, alleging that the University had acted negligently in failingto enforce prohibitions against acts of hazing, the consumption of alcohol,and physically abusive behavior when the University knew or should haveknown that the FIJI house was in violation of the rules prohibiting suchactivities. The University filed a motion for summary judgment assertingthat it did not owe Knoll a duty. Knoll likewise filed a motion for summaryjudgment, asserting that Knoll was entitled to judgment as a matter oflaw. The trial court sustained the University’s motion and denied Knoll’s.Knoll appeals the court’s granting of the University’s motion but did notappeal the denial of his motion for summary judgment.
ASSIGNMENTS OF ERROR
Knoll asserts that the trialcourt erred in concluding that the University did not have a duty to supervisethe FIJI house and to protect Knoll from harm and that the trial courterred in not finding a breach of that duty.
SCOPE OF REVIEW
 In reviewing a summaryjudgment, an appellate court views the evidence in a light most favorableto the party against whom the judgment is granted and gives such partythe benefit of all reasonable inferences deducible from the evidence. Woodardv. City of Lincoln , 256 Neb. 61, 588 N.W.2d 831 (1999).
[2,3] The threshold inquiryin any negligence action is whether the defendant owed the plaintiff aduty. See Popple v. Rose , 254 Neb. 1, 573 N.W.2d 765 (1998). Actionablenegligence cannot exist if there is no legal duty to protect the plaintifffrom injury. Id . In determining whether a duty exists, this courtemploys a risk-utility test, considering (1) the magnitude of the risk,(2) the relationship of the parties, (3) the nature of the attendant risk,(4) the opportunity and ability to exercise care, (5) the foreseeabilityof the harm, and (6) the policy interest in the proposed solution. Id .Foreseeability alone is not dispositive. Id .
 Knoll argues that the Universityowed him a duty as a landowner based on FIJI’s handcuffing and abductingKnoll on the University’s property. We have held that a business proprietoris liable for the adverse actions of a third party against an invitee whenthose actions were reasonably foreseeable to the proprietor. Ratiganv. K.D.L., Inc. , 253 Neb. 640, 573 N.W.2d 739 (1998). See, also, Gansv. Parkview Plaza Partnership , 253 Neb. 373, 571 N.W.2d 261 (1997)(holding that landlord has duty to protect tenant against foreseeable criminalacts of third persons). UNL students, such as Knoll, are clearly the University’sinvitees. E.g., Nero v. Kansas State University , 253 Kan. 567, 861P.2d 768 (1993) (noting that all but one court to address issue has concludedthat students are invitees). See, also, Johnson v. State , 77 Wash.App. 934, 894 P.2d 1366 (1995) (holding that on-campus student residentsare invitees).
 The University contendsthat the landowner liability theory does not apply in the instant casebecause the actions that took place on the University’s property were notcriminal in nature, but, rather, were simply “horseplay.” However, a thirdparty’s action need not amount to a violation of the criminal law to giverise to liability; such an act may be sufficient even if it is merely accidental.See Hulett v. Ranch Bowl of Omaha , 251 Neb. 189, 556 N.W.2d 23 (1996)(stating that third person’s act may be accidental, negligent, or intentionallyharmful).
 The University also arguesthat it owed no duty because Knoll had superior knowledge of the danger.In Richardson v. Ames Avenue Corp. , 247 Neb. 128, 525 N.W.2d 212(1995), we stated that landowner liability is predicated on proof of thepossessor’s superior knowledge, actual or constructive, of dangers to whichthe invitee is subjected and of which the invitee is unaware. However,the landowner liability at issue in Richardson was not predicatedon the acts of third parties; rather, it concerned a condition of the landitself.
The “superior knowledge rule”does not apply to the instant case, which involves liability for the intentionallyharmful acts of a third party. An invitee may very well know that the intentionallyharmful acts of a third party are foreseeable on the landowner’s property.That fact does not obviate the invitee’s expectation that the landownerwill exercise reasonable care in providing protection. If it did, landownersin obviously high crime areas would have no duty to provide protectionat all, since an invitee would always be aware of the danger. Awarenessof the danger in such cases is irrelevant; it is the landowner that hassuperior knowledge of, and the ability to provide, protection.
We conclude that the landownerliability theory applies in the instant case and that thus, if FIJI’s actionsin handcuffing and abducting Knoll were reasonably foreseeable, the Universityowed Knoll a duty to protect.
 This court has long heldthat whether a legal duty exists for actionable negligence is a questionof law dependent on the facts in a particular situation. Doe v.Gunny’s Ltd. Partnership , 256 Neb. 653, 593 N.W.2d 284 (1999); Popplev. Rose , 254 Neb. 1, 573 N.W.2d 765 (1998). Prosser and Keeton havestated:
[Duty] is entirely a question of law. . . and it must be determined only by the court. It is no partof the province of a jury to decide . . . whether the Long Island Railroadis required to protect Mrs. Palsgraf from fireworks explosions . A decisionby the court that, upon any version of the facts, there is no duty, mustnecessarily result in judgment for the defendant. A decision that, if certainfacts are found to be true, a duty exists, leaves open the other questionsnow under consideration [which are the weight and sufficiency of the evidence,and the general and particular standard of conduct].
As the quotation from Prosserand Keeton demonstrates, in the context of determining the existence ofa duty, foreseeability is a question of law for the court to resolve. See,e.g., Clohesy v. Food Circus Supermkts. , 149 N.J. 496, 694 A.2d1017 (1997); Ann M. v. Pacific Plaza Shopping Center , 6 Cal. 4th666, 863 P.2d 207, 25 Cal. Rptr. 2d 137 (1993); Hulsman v. HemmeterDev. Corp. , 65 Haw. 58, 647 P.2d 713 (1982); Metropolitan Gas RepairServ., Inc. v. Kulik , 621 P.2d 313 (Colo. 1980); Genaust v. IllinoisPower Co. , 62 Ill. 2d 456, 343 N.E.2d 465 (1976). “[T]he fact thata question of law involves the consideration of factual issues does notturn the former into a ‘question of fact’ or necessarily mire the courtin evidentiary issues of weight and credibility.” Clemets v. Heston ,20 Ohio App. 3d 132, 135 n.1, 485 N.E.2d 287, 290 n.1 (1985) (stating thatduty is question of law for court).
Nonetheless, this court hasheld that whether a history of criminal activity makes an assault foreseeableis a question of fact. Hulett v. Ranch Bowl of Omaha , 251 Neb. 189,556 N.W.2d 23 (1996). See, also, Gans v. Parkview Plaza Partnership ,253 Neb. 373, 571 N.W.2d 261 (1997) (holding that foreseeability is factorin establishing duty and is question of fact in negligence case). In soholding, this court cited K.S.R. v. Novak & Sons, Inc. , 225Neb. 498, 406 N.W.2d 636 (1987).
In K.S.R. , this courtstated that questions of foreseeability, negligence, and proximate causeare questions for the trier of fact, citing Brown v. Nebraska P.P. Dist. ,209 Neb. 61, 306 N.W.2d 167 (1981). However, in Brown , the foreseeabilityanalysis was limited to proximate cause—duty was not at issue. This courtstated: “‘The question whether negligence is, in view of the interveningnegligence of a third person, such a continuing and substantial factorin producing an accident as to be a proximate cause of the injury, is aquestion of fact, rather than a question of law.’” Brown v. NebraskaP.P. Dist. , 209 Neb. at 67, 306 N.W.2d at 171. Thus, foreseeabilityas a question of fact migrated from the proximate cause context in Brown ,to the duty context in Hulett , without any analysis whatsoever.
As we noted in Kozicki v.Dragon , 255 Neb. 248, 583 N.W.2d 336 (1998), citing Hill v. Yaskin ,75 N.J. 139, 380 A.2d 1107 (1977), the distinction between foreseeabilityas it applies to duty and as it applies to proximate cause is a criticaldistinction that is too often and too easily overlooked.
Foreseeability asa determinant of a business owner’s duty of care to its customers is tobe distinguished from foreseeability as a determinant of whether a breachof duty is a proximate cause of an ultimate injury. Foreseeability as itimpacts duty determinations refers to “‘the knowledge of the risk of injuryto be apprehended. The risk reasonably to be perceived defines the dutyto be obeyed; it is the risk reasonably within the range of apprehension,of injury to another person, that is taken into account in determiningthe existence of the duty to exercise care.’” . . . Foreseeability thataffects proximate cause, on the other hand, relates to “the question ofwhether the specific act or omission of the defendant was such that theultimate injury to the plaintiff” reasonably flowed from defendant’s breachof duty. . . . Foreseeability in the proximate cause context relates toremoteness rather than the existence of a duty.
 We conclude that foreseeability,in the duty context, is a legal question for the court. See Doe v. Gunny’sLtd. Partnership , 256 Neb. 653, 593 N.W.2d 284 (1999), and Koltesv. Visiting Nurse Assn. , 256 Neb. 740, 591 N.W.2d 578 (1999) (analyzingforeseeability as question of law in duty context). To the extent that Ratiganv. K.D.L., Inc. , 253 Neb. 640, 573 N.W.2d 739 (1998); Gans v. ParkviewPlaza Partnership, supra ; Hulett v. Ranch Bowl of Omaha, supra ;and K.S.R. v. Novak & Sons, Inc., supra , indicate to the contrary,they are hereby overruled. Therefore, the question in the instant caseis not whether there was sufficient evidence for the jury to conclude thatthe act perpetrated against Knoll was foreseeable, it is a legal questionfor this court as to whether the University owed a duty to Knoll.
 In analyzing foreseeabilityin the duty context, we have noted that a prior criminal history need notinvolve the same suspect to make the further criminal acts reasonably foreseeable, Erichsen v. No-Frills Supermarkets , 246 Neb. 238, 518 N.W.2d 116(1994), nor need it involve the same type of crime, Gans v. ParkviewPlaza Partnership , 253 Neb. 373, 571 N.W.2d 261 (1997) (indicatingthat burglary may be enough to make sexual assault foreseeable). Likewise,the prior acts need not have occurred on the premises. Erichsen v. No-FrillsSupermarkets, supra . Even one such prior incident may be enough. Gansv. Parkview Plaza Partnership, supra . “‘[I]t is the totality of thecircumstances, not solely the number or location of prior incidents, thatmust be considered in determining foreseeability.’” Doe v. Gunny’s Ltd.Partnership , 256 Neb. at 660, 593 N.W.2d at 290, quoting Gans v.Parkview Plaza Partnership, supra . Thus, we must determine whether,under the totality of the circumstances, FIJI’s acts of handcuffing andabducting Knoll on the University’s property were foreseeable by the University.
In the instant case, the Universitywas aware of two separate hazing incidents involving fraternities, oneof which occurred on September 23, 1989, and another on October 15, 1992.The October 15 incident involved grabbing and physically removing studentsfrom a building. These incidents did not involve FIJI.
The University was also awareof several incidents involving FIJI members. On February 9, 1989, a FIJImember was cited by UNL police for resisting arrest. On February 12, severalFIJI members were found in possession of alcohol at the FIJI house, andhad one or more females present at the house after the expiration of visitationhours for members of the opposite sex. One member was convicted of sexuallyassaulting a female high school student at the FIJI house as a result ofthis incident. On August 20, 1993, a FIJI member was found intoxicatedand unconscious in a third-floor restroom of the FIJI house by UNL police.On September 4, an altercation occurred between members of FIJI and theAlpha Tau Omega fraternity in which UNL police intervened. Finally, onSeptember 13, two FIJI members attempted to break into the Alpha Phi sororityhouse.
It is true there is no evidencethat any of this activity occurred on the University’s property. However,there is evidence that the FIJI house is located near the University’sproperty. In Doe v. Gunny’s Ltd. Partnership, supra , we determinedthat evidence of criminal activity, including assault and larceny, occurringnear the landowner’s property was relevant to our foreseeability analysis.See, also, Erichsen v. No-Frills Supermarkets, supra (indicatingthat evidence of criminal acts occurring on surrounding premises is relevant).Moreover, there is evidence that UNL exercised control over the FIJI houseby considering it to be a “student housing unit” subject to the Code. TheCode contained regulations prohibiting certain conduct, including consumptionof alcohol; unreasonably dangerous conduct, including but not limited tohazing; and violation of Nebraska laws, which prohibit hazing and the provisionof alcoholic liquor to minors. Insofar as we can determine from the record,the regulations set forth in the Code apply with equal force to studenthousing units which are situated on property owned by the University andthose, such as the FIJI house, which are not. The prior instances of alcoholabuse and other law violations occurring on the FIJI house premises aretherefore particularly pertinent to our determination of whether a dutyexists in this case.
The stipulated facts show thatthe University was aware of prior hazing instances where students had grabbedand physically removed other students from buildings, had coerced otherstudents into drinking alcohol, and had engaged in other harassing activities.The record reflects that the University had notice that pledge sneaks couldlead to illegal hazing. Thus, the University could have foreseen variousforms of student hazing on its property, even though FIJI failed to disclosethe pledge sneak event, including typical fraternity abductions and theconsequences that could reasonably be expected to result from such activities.As such, we conclude the University owes a landowner-invitee duty to studentsto take reasonable steps to protect against foreseeable acts of hazing,including student abduction on the University’s property, and the harmthat naturally flows therefrom.
We recognize that reasonableminds could differ on the issue whether the University breached its dutyto act reasonably under the circumstances; but this issue, along with theissue of proximate causation, should be tried to the finder of fact withthe benefit of the totality of the evidence presented at trial.
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