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Regier v. Good Samaritan Hospital9/20/2002
dismissed Regier's cause of action against Finkner, stating:
The Court finds that [Regier] has failed to state a cause of action against defendant Finkner. It also appears to this Court that it will not be possible for [Regier], given the facts presented in the petition, to set forth sufficient facts upon which a cause of action against . . . Finkner can be alleged. The Court therefore dismisses this cause of action.
The district court entered its order dismissing Regier's cause of action against Finkner without leave to amend. Regier appeals.
ASSIGNMENTS OF ERROR
On appeal, Regier assigns two errors. Regier claims, restated, that the district court erred (1) in sustaining Finkner's demurrer and (2) in dismissing Regier's cause of action against Finkner without leave to amend.
STANDARDS OF REVIEW
[1,2] In an appellate court's review of a ruling on a demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002); McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002). In reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept the conclusions of the pleader. Shirley v. Neth, 264 Neb. 138, 646 N.W.2d 587 (2002); Spradlin v. Dairyland Ins. Co., 263 Neb. 688, 641 N.W.2d 634 (2002); Mulinix v. Roberts, 261 Neb. 800, 626 N.W.2d 220 (2001). Whether a petition states a cause of action is a question of law regarding which an appellate court has an obligation to reach a conclusion independent of the inferior court. Shirley, supra.
ANALYSIS
[3,4] At issue in this case is whether Regier's petition states a cause of action against Finkner and, if not, whether the district court should have granted leave to Regier to replead. In considering a demurrer, a court must assume that the facts pled, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002). A statement of facts sufficient to constitute a cause of action means a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff. Spradlin, supra.
[5,6] In determining whether a cause of action has been stated, the petition is to be construed liberally, and if, as so construed, the petition states a cause of action, a demurrer based on the failure to state a cause of action must be overruled. Chambers, supra; Spradlin, supra. When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that amendment will correct the defect. Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002).
The relevant portions of the petition regarding Finkner are paragraphs 10 and 36. Paragraph 10 reads as follows: "At all times pertinent hereto, Defendant FINKNER was an employee and/or agent of the Defendant COMMUNITY HOSPITAL acting within the scope and course of such employment and/or agency in the rendition of his medical services." Paragraph 36 alleges the following:
Defendant FINKNER was negligent in his medical care and treatm
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