Bell v. Grow With Me Childcare & Preschool
299 Neb. 136
Neb.2018Background
- Cash Bell (infant) died from fatal abuse by his nanny, Sarah Cullen, who was later criminally convicted; the jury awarded $5,125,000 against Cullen (default on liability).
- Plaintiffs (parents and estate) sued two prior childcare employers, La Petite Academy and Grow With Me, claiming negligence for knowing or should-have-known of Cullen’s abusive conduct and failing to report it to authorities.
- Evidence showed coworkers at both centers observed abusive acts by Cullen while employed there; directors investigated but did not report; Cullen was fired from each center before later being hired as an in‑home nanny via Care.com.
- DHHS later agency‑substantiated allegations based on interviews and placed Cullen on Nebraska’s child‑abuse central registry after Cash’s death.
- Trial court directed a verdict dismissing the childcare centers; plaintiffs appealed claiming the centers owed a duty under Restatement (Third) § 7; centers cross‑appealed duty findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether childcare centers owed a legal duty to protect Cash from Cullen's later criminal acts | Bells: centers’ failure to report suspected abuse amounted to conduct triggering a general duty of reasonable care under Restatement (Third) § 7 | Centers: no duty because their conduct did not affirmatively create the risk; no special relationship existed; reporting statutes do not create private tort duties | Held: No duty; failure-to-report did not create or increase risk under § 7, and no special relationship under § 41(b)(3) existed |
| Whether omission (failure to report) can be the affirmative conduct that creates duty under § 7 | Bells: omission or concealment functioned as affirmative conduct creating risk | Centers: omission is nonfeasance; § 7 requires affirmative conduct that creates risk | Held: Failure to report is nonfeasance and does not, by itself, create the § 7 duty |
| Whether an employer–employee special relationship imposed an affirmative duty to third parties after employment ended | Bells: prior employment facilitated Cullen’s later access to childcare jobs and thus created a § 41 duty to third parties | Centers: employment did not provide means, location, or instrumentalities used to harm Cash; employment had ended before the harm | Held: No § 41(b)(3) special‑relationship duty on these facts |
| Whether plaintiffs’ reliance on reporting statutes created a private tort duty | Bells: do not assert statutes create the tort duty here; use statutes to show breach | Centers: statutes do not create private right or tort duty | Held: Court did not decide statutory private‑right issue because unnecessary; duty resolved under Restatement framework |
Key Cases Cited
- A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (Neb. 2010) (adopted Restatement (Third) § 7 duty framework)
- State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (Neb. 2015) (criminal conviction of nanny for child abuse affirmed)
- Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (Neb. 2012) (application of Restatement (Third) duty principles)
- Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 899 N.W.2d 227 (Neb. 2017) (recognizing affirmative duties based on special relationships)