*1 unwilling say might was or unable to how a meet business owner duty comply this and thus with the law.

I present find the facts case to much more compelling imposition duty building of a for on the owners safe for invitees. Perhaps environment business significantly, most S.I. was attacked an individual who not only patrons had been involved in attacks on other building, who but had also been observed in the entrance to the building prior least 30 minutes to the on S.I. assault agent, security guard, this, Cutlers or their were aware of while S.I. apparently entirely was not. It should been have foreseeable that an with Cutlers individual a known history of on premises engage violence would in further acts Thus, impose duty violence. I on would the Cutlers a protect unwilling a business I impose invitee which was on No-Frills. appellant cross-appellee, Becton, J anet Rains, v. cross-appellant. appellee Company,

Dickinson

523 N.W.2d 506 28, 1994. Filed October No. S-93-173. *2 Watts, Mills, Watts, of Papik

Richard K. appellant. & for Rossiter, Jr., Fraser, Stryker, Robert Vaughn, Meusey, F. of Olson, Bloch, P.C., Boyer & appellee. for J., White,

Hastings, Caporale, Fahrnbruch, Lanphier, C. J., J., Wright, Boslaugh, and J and Retired.

Caporale, J. wrongful case,

In this employment termination of the Rains, asserts, plaintiff-appellant Janet in summary, ruling that the trial court erred in favor of Becton, defendant-appellee employer, Dickinson and Company. way By cross-appeal, of company avers that the finding arrangement district court erred in between the company Rains and was anything other than an motion, On will. our own we removed the appeal Appeals from the Nebraska Court of to this tribunal in to regulate order the caseloads of the two courts. now affirm. 16, February 1976,

Rains hired was on and worked at the Columbus, company’s Nebraska, plant until her services were 16, 1990, August terminated on having literally for lain down onthejob. on morning question, August 11,

Rains testified that and, doing she felt ill after area, some her setup initial of work if decided that she could rest she could her shift. finish She down, therefore climbed into a loft area to lie telling no one going. minutes, where she was After 2 to 10 she was discovered by supervisor, whom she had day. not otherwise seen that plant had infirmary, employees usually no sick reported supervisors to their and then rested in the restrooms or on benches in the break room. 1986, early company employees had distributed to all plant Company

of the a handbook entitled “Your and You.” As signed acknowledgment required company, Rains an handbook, it, read and understood its she had received terms. company, information about the as

The handbook contains guidelines, policies. and A section entitled procedures, well as Performance Documentation” sets “Disciplinary Action and system discipline for violations three-step progressive forth a of regulations, rules and as follows: Regulations acceptable employees for conduct necessary orderly business, operation any for the and rights safety protection for the benefit and of its time, necessary employees. From time to it becomes compliance regulations. enforce the these expected to maintain personal standards of conduct at all times. enforcement, uniformity To ensure rule following guidelines generally of action will be followed disciplinary problems: - warning. Explanation First offense verbal counseling by supervisor. warnings verbal Verbal will *3 Supervisor. documented - warning. warning Second offense written A written infraction, records the expected a statement of the action, corrective consequences a statement of the any repeated warnings future or violations. Written will be prepared triplicate in with copy to the a copy Supervisor, to the original and the to the Human Department Resources where a record of all offenses will be maintained. - suspension 3. Third offense discharge. or guidelines situations;

The above will apply in most however, certain rule infractions are so serious that a warning written discharge or even applied. must be If the first offense warrants a written warning and there is a repeated infraction of the same rule within a 6-month period, may the next action be discharge. In such applications management action, all facts and pertinent circumstances to the offense will be considered. introductory section, statement subsequent to the Regulations,” provides “Rules and that violations “of the following regulations grounds rules shall be management listed, action.” Of the specifically 28 rules provide that a discharge. violation will result in These three work; bringing rules deal with bringing, using, firearms to distributing, being or under the influence of intoxicants or rules, narcotics at the workplace; and theft. Three other relating timecards, conduct, to the falsification of immoral insubordination, may that a violation result discharge. Neither the any remaining rule at issue nor rules state that discharge. a violation or will result This section provides also regulations that the rules and listed “are not all inclusive. necessary Should it be to establish additional policies, or these will be communicated employees.” The rule at issue reads: “LEAVING PLANT OR - WORKPLACE Permission must be your obtained from supervisor plant to leave the any time period other than lunch quitting scheduled time. your You are not allowed to leave assigned place authorization, of work without personal excepted.” needs

The company’s human resources director testified that after investigation, Rains’ violation was considered enough serious discharge warrant because she designated

left her workplace; she went to a concealed area; she discovered; had no being intention of we believe down; she laid and we believe she went to sleep; and we believe she would longer have been there than 10 minutes if supervisor] had not woke up. [her Her actions were considered a blatant and attempt conscious conceal herself. note that the cross-appeals on the basis that the

trial court contract, found the handbook constituted a but it is not at all clear that such was the case. It is true that one portion findings law, of its written of fact and conclusions of the trial court recited that “the relating terms of the handbook *4 to are definite enough in form to constitute a employment.” However, unilateral contract of immediately declaration, following that the trial court announced that assuming contract,” the existence of such a “[e]ven certain as to reserve handbook be such language of the amend or give right it the company discretion in the modify of the handbook. the provisions seemingly contradicts assuming” language “even it, which that the preceding declares language the sentence of contract whether a handbook a contract. constitutes law, of Johnston v. question is employment of exists a Assn., 732, (1987), 408 N.W.2d 261 Co-op 225 Neb. Panhandle posed by with the conundrum we need not concern ourselves assuming, but not pronouncements, the trial court’s Rains’ deciding, language the handbook made of will, something than at employment other rights. within its nonetheless acted and, possible, a whole if be construed as A contract must given every part Supermarkets Baker’s v. effect thereof. Feldman, 684, 502 Its terms are to (1993). 243 Neb. N.W.2d ordinary, ordinary meaning plain their as be accorded average, persons would understand them. or reasonable 707, Lincoln, Murphy City v. 245 Neb. 515 N.W.2d 413 of unambiguous (1994). A which is written clear and contract construction; rather, language subject interpretation is not parties the intent of the must be determined from contents contract, according and the contract must enforced Id.; Supermarkets, supra. its terms. Baker’s Whether a contract law, ambiguous question is a Plambeck v. Union Pacific 780, Co., 17 (1993), N.W.2d as is the RR. 244 Neb. contract, which an of a in connection with construction obligation independent has an to reach an appellate court by the irrespective conclusion of the determination made lower courts, Supermarkets, supra. Baker’s rules, legally adjudication of this case

Given those Cross, 234 holdings our in Goodlett v. Blue is foreshadowed Johnston, 5, (1989), supra. Neb. 449N.W.2d9 Goodlett, by provisions of that declaring part handbook have become defendant’s could employment, employee’s oral we assumed otherwise contract specifying four-step the existence of a contract of system discipline. step provided The first for an progressive warning, written third warning, oral the second for a *5 period probation. opinion for a While the does not detail the discipline contemplated step, the fourth it does reveal that employee’s the services were terminated. The complained given warning. that she had no been oral ruled “ by providing that very that the offense is a serious ‘[i]f action, nature and requires manager immediate the is not ” required go 2,’ through Steps to 1 and the assumed contract “permitted] employer modify disciplinary the procedure its 10, 449 in appropriate circumstances.” Id. at N.W.2d at Johnston, we concluded that handbook which set a salary, future period probationary stated that after a defined status permanent, specified would be six examples of arrangement cause for dismissal did not create an anything other than at-will employment.

Here, only approximately percent rules contained regulations in the rules and section of the specifically handbook however, that discharge; their violation will in result “Disciplinary Action and Performance Documentation” section specify handbook does not three-step system of progressive discipline used, always only will be that generally applied. Moreover, it will be that section recites that “guidelines” in the handbook will apply not all circumstances, only but “in most situations” that “certain rule discharge infractions so serious” that be must penalty. The provides handbook further that the rules and regulations listed are not all-inclusive. the handbook provides policies adopted that additional will be communicated employees, it specify does not that such will implementation. be done before

Thus, Johnston, in Goodlett employers like the company modify retained the disciplinary discretion its will, procedure thereby reserving right as it saw fit and particular to determine that conduct was sufficiently discharge. situation, severe as to warrant In such a not need first resort to either of the other two less severe sanctions.

Indeed, language the handbook here was even more Johnston, discretionary than the language handbook for the Johnston language suggestion contained no that the rules were provide that Johnston handbook all-inclusive, nor did the

not only most situations apply would guidelines specified discharge must so that a infractions are serious certain rule applied. be company found the infraction to since the

Consequently, serious, discharge first time she right to Rains the it had the leaving assigned place of work against the rule violated judgment of authorization. The obtaining proper without first court, being correct, is affirmed. trial

Affirmed. White, J., concurring. *6 by the

Reluctantly, agree the result announced I with life: That which the is cruel majority. It fact easily away hand is taken grants with the one employer procedure and fair vague clear standards promises The other. employer when the merely puffing. simple fact it so if the general, an do determines fire if it is disregard procedure is reserved or option to a contract. pamphlet does not constitute announced that J., joins in Lanphier, concurrence. this Thompson, L. appellee, Nebraska, v.Frances State appellant. N.W.2d 246 28, 1994. Filed October No. S-94-049.