On September 26, 2008, the Nebraska Supreme Court made that determination in Marilynn Ehlers v. State of Nebraska, 276 Neb. 605 (2008). In that case, a woman, Ehlers, was assaulted by another patient at the Hastings Regional Center. Ehlers argued that the Regional Center had a duty to prevent the assault. The Supreme Court disagreed setting forth the test as follows:

There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless

  1. a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
  2. a special relation exists between the actor and the other which gives to the other a right to protection.

The Court clarified the test in a residential patient situation as:

One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

  1. knows or has reason to know that he has the ability to control the conduct of the third persons, and
  2. knows or should know the necessity and opportunity for exercising such control.

The Court ruled against Ehlers because there was no evidence that the “HRC staff knew or should have known that L.S. was about to harm Ehlers and therefore should have immediately taken action to protect Ehlers from L.S.”

Jeanelle R. Lust