Summary
The Nebraska Supreme Court held that the State of Nebraska was immune from a negligence and wrongful-death action arising from an incarcerated inmate’s fatal assault by another inmate. Construing the State Tort Claims Act strictly in favor of sovereign immunity, the court held that the intentional-tort exception for claims arising out of assault or battery barred the action, even though the complaint alleged negligent inmate housing and failure to protect. The court overruled Doe v. Omaha Public School District to the extent it was inconsistent with this interpretation and affirmed the dismissal.
Topics
Practice areas
Questions Presented
- Whether the State's intentional-tort exception under Neb. Rev. Stat. § 81-8,219(4) barred negligence and wrongful-death claims arising from an inmate's assault of another inmate.
- Whether the phrase "arising out of" in the State Tort Claims Act's assault and battery exception encompasses negligence claims that would not exist without the underlying assault.
- Whether Doe v. Omaha Public School District should remain controlling to the extent it limited the intentional-tort exception to claims involving intentional torts by governmental employees.
- Whether the district court's dismissal could be affirmed on an immunity ground raised for the first time on appeal.
Holdings
- An exception to the State's waiver of sovereign immunity under the State Tort Claims Act may be raised for the first time on appeal and may be considered sua sponte when the complaint shows on its face that the claim is barred.
- The phrase "arising out of" in the State Tort Claims Act's assault and battery exception broadly encompasses claims that would not exist without an assault or battery, including negligence claims alleging that the State negligently placed inmates together and thereby allowed the assault to occur.
- Doe v. Omaha Public School District was overruled because its interpretation of the assault exception was inconsistent with the plain meaning of "arising out of," the court's other precedent, and strict construction of sovereign-immunity waivers.
Key quotations
“That decision was wrong, and as such, we overrule it.” (31)
“We conclude that in this case, the State has immunity from suit under the intentional tort exception.” (32)
Factual background
Terry L. Berry, Jr., was incarcerated at the Tecumseh State Correctional Institution. The Nebraska Department of Correctional Services placed Berry in a cell with Patrick W. Schroeder, a life-sentenced inmate known for having a bad temper, despite allegations that staff knew of compatibility and safety concerns. Five days later, Schroeder strangled Berry, who died from asphyxia caused by the assault.
Procedural history
Moser filed an administrative claim under the State Tort Claims Act on September 15, 2017. After the State took no action within six months, she filed suit alleging negligence, negligence per se, and wrongful death. The district court dismissed the complaint for lack of subject matter jurisdiction, concluding that the discretionary-function exception barred the claims. On appeal, the State additionally asserted that the intentional-tort exception barred the action; the Supreme Court affirmed on that alternative ground.