Churchill v. Columbus Cmty. Hosp., Inc.

285 Neb. 759

830 N.W.2d 53

Jeanette CHURCHILL, appellant,

v.COLUMBUS COMMUNITY HOSPITAL, INC., a Nebraska corporation, et al., appellees.

No. S–12–452.

Supreme Court of Nebraska.

April 25, 2013.

Syllabus by the Court

[285 Neb. 759]1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Limitations of Actions. Which statute of limitations applies is a question of law.

[285 Neb. 760]4. Judgments: Appeal and Error. An appellate court reaches a conclusion regarding questions of law independently of the trial court's conclusion.

5. Limitations of Actions: Negligence. In determining whether the statute of limitations for professional negligence applies to a plaintiff's claim, the court must determine whether the defendant is a professional and was acting in a professional capacity in rendering the services upon which the claim is based.

6. Limitations of Actions: Damages. Actions for damages arising out of the professional services provided by physical therapists are actions based on an alleged claim of negligence in providing professional services and are subject to the time limitations described in Neb.Rev.Stat. § 25–222 (Reissue 2008).

7. Limitations of Actions: Negligence. A cause of action accrues for negligence in professional services when the alleged act or omission in rendering or failure to render professional services takes place.

8. Words and Phrases. In determining whether a particular act or service is professional in nature, the court must look to the nature of the act or service itself and the circumstances under which it was performed.Jon J. Puk, Kelli Anne Francis, and Lawrence J.G. Roland, Senior Certified Law Student, of Walentine, O'Toole, McQuillan & Gordon, L.L.P., Omaha, for appellant.

Mark E. Novotny, John M. Walker, and Sarah F. Macdissi, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellees.

WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and CASSEL, JJ.

WRIGHT, J.

NATURE OF CASE

In November 2007, Jeanette Churchill attended an aquatic physical therapy session at Premier Physical Therapy, an off-site clinic owned by Columbus Community Hospital, Inc. As she was descending the steps of the clinic's aboveground pool, she slipped and fell on the wet tile floor, injuring her right arm and wrist. On November 1, 2011, Churchill filed an action against Columbus Community Hospital, Inc.; Columbus Community Hospital, doing business as Premier Physical Therapy; and Premier Physical Therapy of Columbus Community Hospital (collectively the defendants). The district court granted summary judgment in favor of the defendants because it concluded the action was subject to a 2–year statute of limitations. Churchill appeals.

SCOPE OF REVIEW

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d 225 (2012). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.

Which statute of limitations applies is a question of law. Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 178 (2012). We reach a conclusion regarding questions of law independently of the trial court's conclusion. Id.

FACTS

Columbus Community Hospital owned Premier Physical Therapy, an offsite clinic in Columbus, Nebraska. Churchill, who suffered from chronic low-back pain, participated in aquatic physical therapy which had been prescribed by her physician.

Generally, clinic patients were not assisted in leaving the clinic's exercise pool area unless they had a problem walking. Jay Pelan was a physical therapist who provided therapy to Churchill. During his patients' initial session, he told them to be careful when going up and down the exercise pool steps and to be careful when leaving the pool area. During Churchill's first physical therapy session, Pelan evaluated her ability to walk and to go up and down steps, and he determined she did not have trouble walking.

This action arose from an aquatic physical therapy session held on November 2, 2007. Pelan led Churchill in aquatic physical therapy exercises with the help of Amy Nelson. Nelson was studying to be a physical therapy assistant and was working as a physical therapy technician. Pelan directed the session from outside the pool. He briefly stepped out of the exercise room to check on another patient, and Nelson monitored the session. Pelan returned,and at the end of the session, he told Churchill to leave the pool and go to the locker room to change. Churchill followed his direction.

The pool was above ground, which required Churchill to navigate steps down from the pool to a tile floor in order to reach the locker room. Churchill was not assisted in walking down the steps because her evaluation did not indicate she had a problem walking. On the tile floor was a large puddle of water. As Churchill exited the pool, descended the steps, and stepped from the last step onto the puddle, she slipped and fell. She broke her right elbow and fractured her right forearm and wrist.

On November 1, 2011, Churchill filed an action in Platte County District Court, claiming the defendants had been negligent in several respects, including failure to repair or clean the floor and failure to warn. Her action was based upon a theory of premises liability that would be subject to the general 4–year statute of limitations provided in Neb.Rev.Stat. § 25–207 (Reissue 2008).

The defendants moved for summary judgment, claiming the action was barred by the statute of limitations. The district court determined that the sole issue presented was whether the 2–year statute of limitations for professional malpractice applied. There was no dispute that the lawsuit had been filed outside this 2–year statute of limitations.

The district court considered Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976), and Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 (1989), and concluded that a professional relationship existed between Churchill and the defendants. That professional relationship led to the physical therapy session, and getting out of the pool was “an essential and integral part” of the professional services given to Churchill. The court concluded that a 2–year statute of limitations applied, citing Neb.Rev.Stat. §§ 25–208 and 25–222 (Reissue 2008). Accordingly, it determined the action was time barred, sustained the motion for summary judgment, and dismissed Churchill's complaint with prejudice.

Churchill appealed, and this court moved the case to its docket on its own motion pursuant to its authority to regulate the dockets of the appellate courts of this state. See Neb.Rev.Stat. § 24–1106(3) (Reissue 2008).

ASSIGNMENTS OF ERROR

Churchill assigns, restated, that the district court erred in (1) concluding that a professional relationship existed between her and the defendants; (2) concluding that the activity that was the subject of the claim of negligence was part of the professional services provided by the defendants; (3) failing to consider negligence based on premises liability; and (4) dismissing the complaint with prejudice, which denied her the opportunity to amend her complaint.

ANALYSIS

In determining whether the statute of limitations for professional negligence applies to a plaintiff's claim, the court must determine whether the defendant is a professional and was acting in a professional capacity in rendering the services upon which the claim is based. See, Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004); Reinke Mfg. Co. v. Hayes, 256 Neb. 442, 590 N.W.2d 380 (1999). This requires answering two questions: whether the defendants were professionals who provided professional services to Churchill and whether the activity that caused Churchill's injuries was part of those professional services.

The district court sustained the motion for summary judgment based on its conclusion that the 2–year statute of limitations set forth in § 25–208 or § 25–222 applied to this case. Which statute of limitations applies is a question of law. We reach a conclusion regarding questions of law independently of the trial court's conclusion. Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 178 (2012).

Physical Therapy Is Profession

Churchill claims that her action is for premises liability and that this court has not determined that physical therapy is a profession. The Legislature has not specifically stated which occupations provide professional services as the term is set forth in § 25–222. See Parks, supra.Section 25–222 provides in relevant part:

Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action[.]

We have previously determined that an accountant, a medical technician, and an investment advisor were professionals for...