861 N.W.2d 444
Neb.2015Background
- Peterson sued Kings Gate Partners Omaha I, L.P. and Picerne Kings Gate, LLC for injuries after an assault by Floyd Wallace at Kings Gate, alleging negligent background checks and failure to protect tenants.
- Peterson alleged Wallace resided with his mother in violation of lease provisions, and that Kings Gate conducted a background check which allegedly failed to reveal prior violent crimes.
- Kings Gate moved to dismiss for failure to state a claim, and the district court granted the motion, concluding Kings Gate owed no duty to Peterson.
- Peterson appealed, arguing Kings Gate owed a duty under Restatement (Third) of Torts § 7 and § 40 (landlord-tenant duties), or § 43 regarding negligent background checks.
- The appeal centers on whether a landlord-tenant duty exists under § 40(a)–(b)(6) of the Restatement, and whether dismissal was proper given a plausible duty and breach question.
- This court reversed the district court’s dismissal, held that a duty existed under § 40(b)(6), and remanded for further proceedings to determine breach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kings Gate owed a duty to Peterson under Restatement §40(b)(6) | Peterson contends Kings Gate owed a landlord-tenant duty. | Kings Gate contends no duty to protect Peterson beyond general landlord duties. | Yes; duty exists and case remanded for breach determination. |
Key Cases Cited
- A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205 (Neb. 2010) (duty analysis adopted; risk and duty separated under Restatement Third)
- Martensen v. Rejda Bros., 283 Neb. 279 (Neb. 2012) (supports Restatement-based duty framework in special relationships)
- Riggs v. Nickel, 281 Neb. 249 (Neb. 2011) (Restatement Third duty considerations in negligence)
- Sopher v. Sophir, 220 Neb. 51 (Neb. 1985) (early articulation of duty concepts in negligence cases)
- C.S. v. Sophir, Neb. 1985 () (related duty precedents informing standard of care)