Moser v. State , 307 Neb. 18 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/20/2020 02:08 AM CST
- 18 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
Telena Moser, Personal Representative
of the Estate of Terry L. Berry, Jr.,
deceased, appellant, v. State
of Nebraska, appellee.
___ N.W.2d ___
Filed September 4, 2020. No. S-19-726.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court
below.
3. Tort Claims Act: Appeal and Error. Whether the allegations made by
a plaintiff constitute a cause of action under the State Tort Claims Act
or whether the allegations set forth claims which are precluded by the
exemptions set forth in the act is a question of law, for which an appel-
late court has a duty to reach its conclusions independent of the conclu-
sions reached by the district court.
4. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception
to the State’s waiver of immunity under the State Tort Claims Act is an
issue that the State may raise for the first time on appeal and that a court
may consider sua sponte.
5. Tort Claims Act: Legislature: Immunity: Waiver. Through the State
Tort Claims Act, the Legislature has waived the State’s immunity with
respect to certain, but not all, types of tort actions.
6. Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
tion of sovereign immunity of the State or its subdivisions are strictly
construed in favor of the sovereign and against the waiver. A waiver
of sovereign immunity is found only where stated by the most express
- 19 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
language of a statute or by such overwhelming implication from the text
as will allow no other reasonable construction.
7. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
8. Assault: Political Subdivisions Tort Claims Act: Tort Claims Act.
Because the assault and battery exceptions of the State Tort Claims Act
and the Political Subdivisions Tort Claims Act are nearly identical, cases
construing the Political Subdivisions Tort Claims Act are applicable to
cases under the State Tort Claims Act and vice versa.
9. Public Policy. While the doctrine of stare decisis is entitled to great
weight, it is grounded in the public policy that the law should be stable,
fostering both equality and predictability of treatment.
10. Appeal and Error. Remaining true to an intrinsically sounder doctrine
better serves the values of stare decisis than following a more recently
decided case inconsistent with the decisions that came before it.
Appeal from the District Court for Johnson County: Ricky
A. Schreiner, Judge. Affirmed.
Thomas J. Monaghan and Rodney C. Dahlquist, Jr., of
Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O.,
for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith,
Solicitor General, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Heavican, C.J.
INTRODUCTION
Terry L. Berry, Jr., was incarcerated at the Tecumseh State
Correctional Institution (TSCI), an institution under the control
of the Nebraska Department of Correctional Services (DCS).
On April 10, 2017, Berry was moved into a cell with Patrick W.
Schroeder, another inmate at TSCI. Five days later, Schroeder
strangled Berry, who died of his injuries on April 19.
- 20 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
Telena Moser, the personal representative of Berry’s estate,
filed a claim with the State of Nebraska under the State Tort
Claims Act (STCA). After the statutory time for the State to
respond to her claim had passed, Moser filed this suit on behalf
of Berry’s estate. The suit alleges negligence and wrongful
death on the part of DCS. The district court dismissed Moser’s
complaint. Moser appeals.
We granted the State’s motion to bypass the Nebraska Court
of Appeals due to the public interest involved in this case
and, as asserted in the State’s petition to bypass, to address an
apparent “inconsistency in this Court’s opinions in applying
the strict construction legal principles of the STCA exceptions
to sovereign immunity as those legal principles have been
explained and applied by this Court’s more recent decisions,”
specifically in the context of the intentional tort exception.
We find that the State has immunity under the intentional
tort exception to the STCA, and accordingly, we affirm the
order dismissing Moser’s suit, albeit under different grounds
for immunity than those relied upon by the district court.
BACKGROUND
In this case, the district court granted the State’s motion to
dismiss; therefore, the operative facts are those set forth in
Moser’s complaint. According to that complaint, Berry was
incarcerated with DCS on November 20, 2015, after being
convicted of second degree forgery and assault by a confined
person. He was sentenced to 3 to 4 years’ imprisonment.
Schroeder was convicted of first degree murder, use of
a weapon to commit a felony, and six counts of second
degree forgery. He was sentenced to life imprisonment and was
commit­ted to DCS on August 31, 2006. Schroeder had been
committed to TSCI since 2007, and according to the complaint,
he was known for “having a bad temper.” Berry was also
known for having behavioral issues and had been identified as
“needing anger management programming.”
On April 10, 2017, Schroeder was notified that he would
need to move out of his cell and into a different unit and
- 21 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
that he would be “double bunked.” Schroeder told staff that
he would not accept being double bunked. Fifteen minutes
before he was due to be moved, Schroeder was told that his
new cellmate would be Berry. Schroeder objected, because “he
knew Berry to have enemies [and be] talkative” and because
Berry was “believed to be dirty.” On that same day, Berry was
notified that he was being moved and that “if he refused the
move, [he] would be double bunked with another inmate.”
On April 15, 2017, Schroeder physically attacked Berry, who
was subsequently transported to a local hospital and then to a
hospital in Lincoln, Nebraska. Berry was declared brain dead
on April 17 and was removed from life support on April 19. An
autopsy showed that Berry’s cause of death was asphyxia due
to strangulation.
On September 15, 2017, Moser filed an administrative claim
under the STCA. No action was taken within 6 months. Moser
filed this action on November 26, 2018. In it, she asserted
three causes of action: (1) the State’s negligence in breach-
ing its duty to protect Berry from harms against which he was
unable to prevent himself, (2) its negligence per se in failing
to comply with “the requirements of [DCS] Administrative
Regulation 210.01,” and (3) wrongful death under Neb. Rev.
Stat. § 30-809 et seq. (Reissue 2016).
The State filed a motion to dismiss for lack of subject matter
jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1), specifically
arguing that the discretionary function exception of Neb. Rev.
Stat. § 81-8,219(1) (Reissue 2014) to the STCA gave the State
immunity from suit. The State also argued that Moser failed to
state a claim under § 6-1112(b)(6). The district court granted
that motion, concluding that the State was immune from suit
under § 81-8,219(1).
Moser appeals.
ASSIGNMENTS OF ERROR
On appeal, Moser assigns that the district court erred in
(1) finding that the mandatory safety regulations designed to
- 22 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
prevent inmate assaults were discretionary rather than manda-
tory, (2) finding that the decision by TSCI staff to “double
bunk” Berry and Schroeder was a policy decision rather than
an operational decision, (3) finding that the discretionary
function exception applied to the decision to double bunk
Berry with Schroeder and to maintain such housing despite
warnings regarding Berry’s safety, (4) finding that the State
acted with due care when it placed Berry with Schroeder and
when it maintained this housing despite warnings regarding
Berry’s safety, and (5) granting the State’s motion to dismiss
under § 81-2,219(1).
STANDARD OF REVIEW
[1-3] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party. 1 Statutory interpretation
presents a question of law, for which an appellate court has
an obligation to reach an independent conclusion irrespective
of the decision made by the court below. 2 Whether the allega-
tions made by a plaintiff constitute a cause of action under
the STCA or whether the allegations set forth claims which
are precluded by the exemptions set forth in the act is a ques-
tion of law, for which an appellate court has a duty to reach
its conclusions independent of the conclusions reached by the
district court. 3
[4] An exception to the State’s waiver of immunity under the
STCA is an issue that the State may raise for the first time on
appeal and that a court may consider sua sponte. 4
1
Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551
(2018).
2
Id.
3
Id.
4
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
- 23 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
ANALYSIS
On appeal, Moser argues that the district court erred in
granting the State’s motion to dismiss. Her assignments of error
center on the district court’s finding that § 81-8,219(4) barred
her claim.
[5] Through the STCA, the Legislature has waived the
State’s immunity with respect to certain, but not all, types of
tort actions. 5 As pertinent here, the STCA waives the State’s
sovereign immunity for tort claims against the State on account
of personal injury caused by the negligent or wrongful act or
omission of any employee of the State, while acting within the
scope of his or her office or employment, under circumstances
in which the State, if a private person, would be liable to the
claimant for such injury. 6
But there are exceptions to the State’s waiver of immunity.
As relevant to this appeal, § 81-8,219 provides that the STCA
shall not apply to the following:
(1) Any claim based upon an act or omission of an
employee of the state, exercising due care, in the execu-
tion of a statute, rule, or regulation, whether or not such
statute, rule, or regulation is valid, or based upon the
exercise or performance or the failure to exercise or per-
form a discretionary function or duty on the part of a state
agency or an employee of the state, whether or not the
discretion is abused;
....
(4) Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse
of process, libel, slander, or interference with contract
rights.
The State argues, for the first time in its brief on appeal,
that Moser’s lawsuit is barred, not just by § 81-8,219(1)—the
grounds argued below which the district court relied upon—but
5
Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
6
See Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014).
- 24 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
also by the intentional tort exception found in § 81-8,219(4).
The State notes that this court is bound to construe statutes
waiving the State’s immunity strictly and in favor of the State
and against the waiver, and it argues that the plain language
of the intentional tort exception applies to “[a]ny claim arising
out of assault [or] battery.” The State suggests that we should
adopt the reasoning of the concurrence filed in our recent
decision in Rutledge v. City of Kimball 7 and overrule our ear-
lier decision in Doe v. Omaha Pub. Sch. Dist. 8
As an initial matter, we observe that this court may con-
sider the State’s contention that the exception set forth in
§ 81-8,219(4) is applicable. 9 We have held that “when a plain-
tiff’s complaint shows on its face that a claim is barred by
one of the exceptions [to the State’s waiver of immunity], the
State’s inherent immunity from suit is a jurisdictional issue that
an appellate court cannot ignore.” 10
[6,7] It is well settled that statutes that purport to waive
the protection of sovereign immunity of the State or its
subdivisions are strictly construed in favor of the sovereign
and against the waiver. 11 A waiver of sovereign immunity is
found only where stated by the most express language of a
statute or by such overwhelming implication from the text
as will allow no other reasonable construction. 12 Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous. 13
7
Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019).
8
Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
9
Davis v. State, supra note 4.
10
Id. at 979, 902 N.W.2d at 186.
11
Jill B. & Travis B. v. State, supra note 5.
12
Id.
13
Id.
- 25 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
As we noted in Jill B. & Travis B. v. State: 14
The principle of strict construction predated the
[STCA] and has been consistently followed after its
adoption. We had long said that statutes authorizing suit
against the State are to be strictly construed, since they
are in derogation of the State’s sovereignty. Following
adoption of the [STCA], we emphasized that statutes in
derogation of sovereignty should be strictly construed in
favor of the State, so that its sovereignty may be upheld
and not narrowed or destroyed, and should not be per-
mitted to divest the State or its government of any of its
prerogatives, rights, or remedies, unless the intention of
the Legislature to effect this object is clearly expressed.
We also said that because the State has given only condi-
tional consent to be sued and there is no absolute waiver
of immunity by the State, requirements of the [STCA]
must be followed strictly. Our most recent pronounce-
ments uphold these principles. Because the rationale for
the intentional torts exception . . . has not always been
clearly expressed, the rule of strict construction becomes
critically important.
[8] Because the assault and battery exceptions of the STCA
and the Political Subdivisions Tort Claims Act (PSTCA) are
nearly identical, cases construing the PSTCA are applicable to
cases under the STCA and vice versa. 15 Our case law on the
assault and battery exception to this point has generally found
immunity in cases where the actor committing the assault or
battery was an employee or agent of the State, but not where
the actor was a nongovernmental actor.
This court was presented with the intentional tort excep-
tion to the STCA in Johnson v. State. 16 In Johnson, an inmate
with DCS filed a claim under the STCA, alleging that she
14
Id. at 68-69, 899 N.W.2d at 251-52.
15
See Amend v. Nebraska Pub. Serv. Comm., supra note 1.
16
N.M. (J.) v. State, 270 Neb. 316, 700 N.W.2d 620 (2005).
- 26 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
was sexually assaulted by a DCS employee. We noted that the
phrase “arising out of an assault or battery” was broader than
the phrase “for assault or battery” and thus covered “‘claims
. . . that sound in negligence but stem from a battery.’” 17 We
further found that the intentional tort exception applied and
that the State was immune. We explained:
Where the plaintiff’s tort claim is based on the mere fact
of government employment (such as a respondeat supe-
rior claim) or on the employment relationship between the
intentional tort-feasor and the government (such as a neg-
ligent supervision or negligent hiring claim), the excep-
tion in § 81-8,219(4) applies and the State is immune
from suit. 18
We were again presented with the intentional tort exception
in Doe, a case governed by the PSTCA involving a nongovern-
mental actor. 19 In Doe, a student sued a school district, alleging
she was sexually assaulted by a fellow student during school
hours and while on school property. Citing the U.S. Supreme
Court’s decision in Sheridan v. United States, 20 we held that the
claim was not barred by the PSTCA because it was
not based upon the assault itself, and [the plaintiff] could
not prevail merely by proving that it occurred. Rather,
[the plaintiff alleged] that before the alleged assault, [the
school district] breached an independent legal duty, unre-
lated to any possible employment relationship between
the assailant and [the school district], to take reason-
able steps to prevent foreseeable violence from occur-
ring on its premises. . . . The claim therefore does
not arise from an assault, but, rather, from an alleged
17
Id. at 320, 700 N.W.2d at 624.
18
Id. at 323, 700 N.W.2d at 625.
19
Doe v. Omaha Pub. Sch. Dist., supra note 8.
20
Sheridan v. United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d
352 (1988).
- 27 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
negligent failure to protect a student from a foreseeable
act of violence. 21
In 2011, we decided Britton v. City of Crawford. 22 There, the
plaintiff’s decedent was shot and killed by law enforcement.
His estate filed suit against the city, which argued that it was
immune from suit under the intentional tort exception to the
PSTCA because the claim arose out of a battery.
We observed in Britton, as we had held in Johnson, that the
phrase “arising out of an assault or battery” created a broader
exemption than one for an assault or battery. We distinguished
Johnson, noting that although the claims were based on the
officers’ government employment, the death of the plaintiff’s
decedent was not the result of negligent supervision or hiring.
We ultimately concluded that the city had immunity from suit,
noting that without
the battery, there would have been no claim. No semantic
recasting of events can alter the fact that the shooting was
the immediate cause of [the decedent’s] death and, conse-
quently, the basis of [the] claim. Even if it is possible that
negligence was a contributing factor to the [decendent’s]
death, the alleged negligence was inextricably linked to
a battery. 23
We used similar reasoning in Jill B. & Travis B., 24 which
involved immunity under § 81-8,219(5). That section provided
an exception from immunity under the STCA for “any claim
arising out of misrepresentation or deceit.” 25 We held that the
State was entitled to immunity, reasoning that “[n]o matter
how the [plaintiffs] try to frame their complaint, their claim
arises out of a misrepresentation. . . . ‘[A] plaintiff cannot
21
Doe, supra note 8, 273 Neb. at 88, 727 N.W.2d at 456.
22
Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
23
Id. at 386, 803 N.W.2d at 518.
24
Jill B. & Travis B. v. State, supra note 5.
25
§ 81-8,219(5).
- 28 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
circumvent the misrepresentation exception simply through
artful pleading of [the] claims.’” 26
We most recently addressed this issue in Rutledge, wherein
the plaintiff alleged that a city employee had attacked and
choked her in a building belonging to the city. 27 On appeal,
the plaintiff relied on Doe to argue that the city was negligent
in failing to protect her and the rest of the public from its
employee. 28 We distinguished Doe, noting the absence of an
allegation that the assailant was an agent or employee of the
political subdivision. The situation in Rutledge presented an
employment relationship, and accordingly, we found the city to
be immune from suit. In Rutledge, we were not presented with
the question of whether Doe was correctly decided, but we find
that question squarely before us today.
As we noted above, our propositions of statutory inter-
pretation require us to give statutory language its plain and
ordinary meaning. And we have done as much, particularly
in Johnson, and later in Britton, when we held that the use
of the phrase “arising out of” in the intentional tort excep-
tion to the PSTCA meant that more than just claims for listed
intentional torts were exempted and that plaintiffs may not
reframe claims that arise out of those intentional torts to escape
the exemption. 29
Our decision in Doe, 30 where we held that the claim was not
based upon the underlying assault but upon the breach of the
legal duty to take reasonable steps to prevent foreseeable vio-
lence from occurring on its premises, was rooted in Sheridan. 31
But Doe is an outlier in that it is inconsistent with our prior and
26
Jill B. & Travis B., supra note 5, 297 Neb. at 92-93, 899 N.W.2d at 265.
27
Rutledge v. City of Kimball, supra note 7.
28
Id. See Doe v. Omaha Pub. Sch. Dist., supra note 8.
29
See, Britton v. City of Crawford, supra note 22; Johnson v. State, supra
note 16.
30
Doe v. Omaha Pub. Sch. Dist., supra note 8.
31
Sheridan v. United States, supra note 20.
- 29 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
subsequent case law generally setting forth a broad definition
of the phrase “arising out of an assault or battery.”
A broad definition is consistent with the plain language of
that phrase, which suggests that if a claim would not exist
without an assault or battery, it arises out of that battery and
is more consistent with our other case law on this issue. As
Justice O’Connor noted in her dissenting opinion in Sheridan,
“‘arising out of,’” if given its ordinary meaning, would cover
any case in which a battery is essential to the claim. 32 We can
conceive of no reason why the scope or meaning of the phrase
“arising out of,” as we defined it in Britton, should change
depending on the status of the actor as governmental versus
nongovernmental.
Additionally Sheridan, upon which we relied in Doe, did
not purport to give the waiver of sovereign immunity in the
Federal Tort Claims Act a strict construction. Indeed, the U.S.
Supreme Court has not uniformly used the same strict con-
struction canon with respect to waivers of sovereign immunity.
It recently noted that such a canon is simply “a tool for inter-
preting the law, and we have never held that it displaces the
other traditional tools of statutory construction.” 33
Conversely, this court has long strictly construed waivers of
immunity in favor of a State or political subdivision. In order
to strictly construe against a waiver of sovereign immunity,
we must read exemptions from a waiver of sovereign immu-
nity broadly. 34 Of course, as the dissent to this opinion notes,
courts must be careful to interpret exceptions to a waiver of
immunity in a way that does not defeat the initial purpose of
32
Id., 487 U.S. at 409 (O’Connor, J., dissenting) (citing Kosak v. United
States, 465 U.S. 848, 104 S. Ct. 1519, 79 L. Ed. 2d 860 (1984), and United
States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985)).
33
Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 589, 128 S. Ct.
2007, 170 L. Ed. 2d 960 (2008).
34
See Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
- 30 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
waiving the government’s immunity. 35 But even in balancing
those considerations, we are constrained by the language uti-
lized by the Legislature. A broad reading of the phrase “arising
out of” corresponds to a strict reading of the situations under
which a sovereign would be entitled to immunity.
Nor is this inconsistent with the definition of the term “tort
claim” in § 81-8,210(4), which requires, in relevant part, “the
negligent or wrongful act or omission of any employee of
the state.” The broad definition of the phrase “arising out of ”
encompasses and provides immunity for, at a minimum, the
acts of both a State actor alleged to have committed an inten-
tional tort and one alleged to have been negligent in a situation
that includes the commission of an intentional tort.
Although we do not dispute the dissent’s contention that one
injury can arise from multiple wrongful acts, the plain language
of the intentional tort exception in § 81-8,219(4) provides that
if that injury “arise[s] out of,” in this case an assault or battery,
the exception applies to bar the claim. With the exception of
Doe, our interpretation of this language has been consistent and
the Legislature has not seen fit to correct us. 36
[9,10] Respect for precedent should not prevent us from
restoring our adherence to the Nebraska Constitution and
statutes. 37 We have said that while the doctrine of stare deci-
sis is entitled to great weight, it is grounded in the public
policy that the law should be stable, fostering both equality
and predictability of treatment. 38 And we have recognized that
overruling precedent is justified when the purpose is to elimi-
nate inconsistency. 39 Thus, we said that remaining true to an
intrinsically sounder doctrine better serves the values of stare
35
See Dolan v. U.S. Postal Service, 546 U.S. 481, 126 S. Ct. 1252, 163 L.
Ed. 2d 1079 (2006).
36
See Doe v. Omaha Pub. Sch. Dist., supra note 8.
37
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
38
Id.
39
Id.
- 31 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
decisis than following a more recently decided case inconsist­
ent with the decisions that came before it. 40
Our decision in Doe was inconsistent with the approach we
have taken in other cases as it relates to the “arising out of ”
language, and it does not comply with our obligation to strictly
construe the State’s waiver of immunity. 41 That decision was
wrong, and as such, we overrule it.
We are therefore left to determine whether the intentional
tort exception set forth in § 81-8,219(4) applies to provide the
State immunity from Moser’s suit. We find that it does.
Although Moser’s complaint plainly alleges a negligence
cause of action, in that complaint, Moser alleged that Schroeder
“assault[ed]” Berry. A reading of the complaint makes it clear
that all of Moser’s allegations, including her claims of neg-
ligence in the decision to double bunk Berry and Schroeder,
flow from this assault.
Of course, the assault that Moser outlines in her complaint
was horrific. But in accordance with our case law with respect
to the intentional tort exception discussed above, we must con-
clude that Moser’s allegations arose out of an intentional tort
for purposes of the STCA. To find otherwise would require this
court to engage in the very “semantic recasting of events” that
we rejected in Britton. 42 This we will not do.
The Legislature may wish to revisit the State’s sovereign
immunity in cases such as the one presented by this appeal,
as indeed that body has done previously in response to deci-
sions of this court. 43 But it is clear that it is the province
of the Legislature, and not of this court, to make such pol-
icy judgments.
40
Id.
41
See Doe v. Omaha Pub. Sch. Dist., supra note 8.
42
Britton v. City of Crawford, supra note 22, 282 Neb. at 386, 803 N.W.2d
at 518.
43
See § 81-8,219(5) (Cum. Supp. 2018) (as amended by 2018 Neb. Laws,
L.B. 729, § 1, effective July 19, 2018).
- 32 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
Because we conclude that the State had immunity from suit
under the intentional tort exception of the STCA, as set forth
in § 81-8,219(4), we need not address Moser’s assignments of
error on appeal relating to immunity under the discretionary
function exception.
CONCLUSION
Over 50 years ago, the Legislature set the parameters for
the State’s immunity from suit in various scenarios. This court
strictly construes those parameters. We conclude that in this
case, the State has immunity from suit under the intentional
tort exception. As such, the district court did not err in dis-
missing Moser’s complaint. The decision of the district court
is affirmed.
Affirmed.
Freudenberg, J., not participating.
Miller-Lerman, J., dissenting.
I respectfully disagree with the majority’s conclusion to
dismiss this complaint based on immunity where the complaint
generally alleges that the death of an inmate was negligently
caused by the State’s violating its duties and its formal regula-
tions, and specifically alleges that the State’s employees negli-
gently “doubled bunked” a “talkative” inmate “days away from
his parole hearing” with an expected release date in 8 months
with a known “bad temper[ed]” inmate serving a life sentence,
the latter of whom after 5 days of sharing a cell “wrapped his
arm around [the former’s] neck and squeezed for five minutes”
until “he felt certain [the former] was dead.”
In Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d
447 (2007), this court followed the reasoning of the U.S.
Supreme Court’s holding in Sheridan v. United States, 487
U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988), but today
the majority chooses instead to follow the dissent in Sheridan
and overrules Doe based on its dubious notion that the U.S.
Supreme Court and the Nebraska Supreme Court interpret
the same statutory language so differently that adhering to
- 33 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
U.S. Supreme Court precedent would offend Nebraska. As
explained below, finding no meaningful difference between
statutory interpretation habits of the Nebraska Supreme Court
and the U.S. Supreme Court in this regard and reading the lan-
guage of Neb. Rev. Stat. § 81-8,219(4) (Reissue 2014) in the
context of the State Tort Claims Act provisions of which it is a
part, I conclude that the intentional tort assault exception to the
waiver of sovereign immunity does not apply; hence, the State
is subject to suit in this case.
This is one of a number of recent cases in which the State
introduced a new theory for the first time on appeal—in
this instance, in its appellate brief. See Candyland, LLC v.
Nebraska Liquor Control Comm., ante p. 169, 944 N.W.2d
740 (2020) (Miller-Lerman, J., concurring) (noting that theory
raised for first time at oral argument); State v. Vann, ante
p. 91, 944 N.W.2d 503 (2020), (Miller-Lerman, J., concur-
ring) (­noting that theory raised for first time at oral argument
resulted in overruling precedent). Unlike its approach in the
trial court, the State now contends that Doe, supra, should be
overruled and that the complaint should be dismissed based on
the intentional tort assault exception to the waiver of sovereign
immunity. Although appellant may have a heavy burden in
being able to prove negligence by the State, in my view, she
has alleged sufficient facts described below to survive a motion
to dismiss.
The complaint filed by Telena Moser, as personal represent­
ative of the estate of Terry L. Berry, Jr., alleged that the State
was negligent when on April 10, 2017, it placed Berry in the
same restrictive housing cell as Patrick W. Schroeder at the
Tecumseh State Correctional Institution (TSCI). On April 15,
Schroeder wrapped his arm around Berry’s neck and squeezed
for 5 minutes until he felt certain Berry was dead. Restrictive
housing is defined by Neb. Rev. Stat. § 83-170(13) (Cum.
Supp. 2016) as “conditions of confinement that provide lim-
ited contact with other offenders, strictly controlled movement
while out of cell, and out-of-cell time of less than twenty-four
- 34 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
hours per week.” The purpose of restrictive housing is to sepa-
rate a violent inmate from the general population or to separate
an inmate at risk of violence from the general population.
According to the allegations, Schroeder was serving a life
sentence for first degree murder, was known for “having a bad
temper,” and expressly warned a caseworker of his unwilling-
ness to bunk with Berry. Berry was days away from a parole
hearing, with a tentative release date of December 8, 2017.
According to the allegations, although TSCI unit managers
knew of the risks and warnings associated with placing Berry
and Schroeder together, they nonetheless decided to house the
inmates together. A staff member had expressed her concerns
regarding the placement to several other staff members, stating
that she “‘personally felt that it was not the best idea,’” since
Berry “‘was known to be very talkative and bothersome,’” and
that Schroeder “‘in for life, with a temper[,] would not want
someone like’” Berry as a cellmate.
The complaint alleges the following failures of the TSCI staff:
•  “Two unit managers of TSCI were responsible for making
the joint decision to double bunk Berry and Schroeder in
restrictive housing, but they failed to complete the statement
required by Administrative Regulation 210.01, wherein they
state why the cell assignment provides each cellmate with
reasonable safety from assault.”
•  “Further, the unit managers did not complete the compatibil-
ity assessment until after each inmate was warned that they
would be double bunked with another inmate if they did not
comply with the directive to move cells.”
•  “In short, TSCI staff did not follow proper procedure required
by Administrative Regulation 210.01(VIII)(G).”
STATUTORY INTERPRETATION OF THE ASSAULT
EXCEPTION IS THE SAME IN NEBRASKA
AND U.S. SUPREME COURT
At issue is the meaning of the “arising out of assault” lan-
guage found in the State Tort Claims Act, § 81-8,219(4), and
its federal counterpart in the Federal Tort Claims Act (FTCA),
- 35 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
28 U.S.C. § 2680(h) (2012), and specifically, whether this
intentional tort exception to the waiver of sovereign immunity
applies when the State is being sued for its allegedly negligent
acts which occurred before an assault was committed by a non-
governmental actor.
We have stated that the waiver of sovereign immunity
should be strictly construed and, as a corollary thereto, that
the exceptions should be read broadly. See Brown v. State,
305 Neb. 111, 939 N.W.2d 354 (2020). We have specifically
applied this approach to the intentional tort exception portion
of the State Tort Claims Act, § 81-8,219(4), which exception is
derived from the FTCA. See Jill B. & Travis B. v. State, 297
Neb. 57, 899 N.W.2d 241 (2017). The U.S. Supreme Court has
addressed the waiver of sovereign immunity and the “arising
out of assault” exception language. Just like Nebraska, the U.S.
Supreme Court has stated that a sovereign immunity waiver
“will be strictly construed . . . in favor of the sovereign.” Lane
v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486
(1996). And just like Nebraska, one justice has summarized the
applicable U.S. Supreme Court law as follows: “In cases where,
as here, the question whether a particular claim is subject to an
exception is disputed, we have construed the FTCA exceptions
broadly to preclude claims for actions Congress intended to
except from the FTCA’s general waiver of immunity.” Dolan v.
Postal Service, 546 U.S. 481, 499 n.3, 126 S. Ct. 1252, 163 L.
Ed. 2d 1079 (2006) (Thomas, J., dissenting).
The U.S. Supreme Court has warned, however, that “‘unduly
generous interpretations of the exceptions run the risk of defeat-
ing the central purpose of the statute,’ . . . which ‘waives the
Government’s immunity from suit . . . .’” Id., 546 U.S. at 492
(Thomas, J., dissenting). And we too have resisted the tempta-
tion to accord unduly generous interpretations of exceptions
which would defeat the waiver. See, e.g., Brown, 305 Neb. at
122, 939 N.W.2d at 361 (declining to read language of excep-
tion “so broadly” that it “would judicially expand” exception).
- 36 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
Applying U.S. Supreme Court precedent and according a broad
reading to the exception provisions of the FTCA to a fact pat-
tern akin to the instant case, the U.S. Court of Appeals for the
Second Circuit stated: “Despite the broad reading given to [the
FTCA] section 2680(h)’s ‘arising out of’ language [equivalent
to Nebraska’s § 81-8,219(4)], [the section] may not bar mixed
claims of negligence and intentional conduct in the relatively
uncommon case” where the negligence claim is independent
of the intentional tort. Guccione v. U.S., 847 F.2d 1031, 1037
(2d Cir. 1988). So even applying a broad reading to the inten-
tional tort exception, cases like the instant matter are not barred
where there is independent negligence by the government.
Given the above, the Nebraska Supreme Court and the U.S.
Supreme Court clearly share the same approach to the statutory
language at issue. Nevertheless, without making an apt com-
parison, the majority insists the Nebraska approach to statutory
interpretation is so different that reading the same language
requires a result in Nebraska different from that of the U.S.
Supreme Court’s controlling authority.
The majority takes this position because it insists on com-
plete fidelity to the “strictly construe waiver” but “broadly
construe exceptions” language. But this approach overlooks
Nebraska’s jurisprudential experience with the “strict-broad”
language. For example, as recently as in 2017, we considered
another portion of the intentional tort exception provision, mis-
representation, and said: “We must strictly construe the misrep-
resentation exception to the waiver of sovereign immunity in
favor of the State . . . .” Jill B. & Travis B. v. State, 297 Neb.
57, 95, 899 N.W.2d 241, 266 (2017) (emphasis supplied). This
verbage simply illustrates why we should thoughtfully examine
the language and provisions of the State Tort Claims Act for
their coherent meaning rather than decide meaning based on
imposition of a “strict-broad” label devoid of analysis. “Our
object should be to read the Act so as to make it ‘consistent
and equitable’, Feres, 340 U.S. at page 139, 71 S.Ct. at page
- 37 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
156, in which we should be untrammeled by any rule of ‘strict’
or ‘liberal’ construction.” Panella v. United States, 216 F.2d
622, 624 (2d Cir. 1954).
STATE TORT CLAIMS ACT IS PATTERNED AFTER
THE FTCA SO WE LOOK TO U.S. SUPREME
COURT DECISIONS UNDER THE FTCA
We have long recognized that Nebraska’s State Tort Claims
Act is patterned after the FTCA. See Johnson v. State, 270
Neb. 316, 700 N.W.2d 620 (2005). And the FTCA was the
culmination of a long effort to eliminate thousands of private
claims bills at every session of Congress and thus mitigate the
consequences of sovereign immunity from suit. United States
v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805
(1963); Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95
L. Ed. 152 (1950). Where the U.S. Supreme Court cases have
been clear, we have looked to U.S. Supreme Court precedent
and legislative history of the FTCA to inform our reading of
Nebraska statutes patterned after federal legislation. In Jill B.
& Travis B., supra, where we were considering the “misrep-
resentation” exception in § 81-8,219(4), we first looked to the
U.S. Supreme Court decisions for guidance. But where the U.S.
Supreme Court does not directly provide the answer, we then
consider other federal authority. See Haffke v. Signal 88, ante
p. 625, 947 N.W.2d 103 (2020) (explaining that it is appropri-
ate to look to federal court decisions construing similar and
parent legislation). Fortunately in this case, the U.S. Supreme
Court’s decision in Sheridan v. United States, 487 U.S. 392,
108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988), supplies guidance
and resolution.
SHERIDAN OPINION (PLUS JUSTICE KENNEDY’S
CONCURRENCE) SHOW THE STATE IS
NOT IMMUNE FROM SUIT
In the instant case, appellant alleged that the decision of the
TSCI staff to double bunk the victim, Berry, with the inmate
assailant, Schroeder, was negligent because it violated their
- 38 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
duty of care to Berry in a variety of ways. The district court
and the majority in this case found that the negligence cause of
action should be dismissed based on the exception provisions
of § 81-8,219.
Language of Intentional Tort Assault Exception
Applies to Intentional Torts Committed by
Governmental Employees But Not to
Intentional Torts Committed by
Nongovernmental Assailant
As an initial matter, we quote Nebraska’s State Tort Claims
Act as relevant to our analysis of whether appellant stated a
cause of action. Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014)
defines the “[t]ort claims” for which sovereign immunity is
waived. This statute provides that such claims involve “the
negligent or wrongful act or omission of any employee of the
[S]tate.” See, similarly, 28 U.S.C. § 1346(b) (2012) (provid-
ing for “claims . . . caused by the negligent or wrongful act
or omission of any employee of the Government”). Later in
§ 81-8,219, the State Tort Claims Act provides exceptions,
i.e., that there will be no liability for such act or omission of
any employee of the State when the employee’s acts or omis-
sions giving rise to the claim arise from his or her intentional
torts. Section 81-8,219(4), the intentional tort exception, states
that the State Tort Claims Act shall not apply to: “Any claim
arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrep-
resentation, deceit, or interference with contract rights.” The
FTCA exception language is comparable to § 81-8,219(4), but
the FTCA includes an additional proviso not relevant here.
The intentional tort exception, 28 U.S.C. § 2860(h), provides
the United States shall not be liable for “[a]ny claim aris-
ing out of assault, battery . . . .” I note that Congress and the
Legislature did not bar any “suit” arising out of an assault;
they barred only “claims,” which suggests that the exception
was associated with intentional acts of governmental employ-
ees against whom a claim could be filed as distinguished from
- 39 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
a nongovernmental intentional tort-feasor against whom a suit
can be filed.
Cases Interpreting Intentional Tort Assault
Exception and Legislative History Show That
It Applies to Intentional Torts Committed
by Governmental Employees but Not
to Intentional Torts Committed by
Nongovernmental Assailant
We have stated that the State Tort Claims Act, like the
FTCA, represented the legislators’ willingness “to waive sov-
ereign immunity where its employees acted negligently but not
where they acted deliberately or recklessly—at least as to the
specified torts.” Jill B. & Travis B. v. State, 297 Neb. 57, 73,
899 N.W.2d 241, 254 (2017) (emphasis supplied). That is, we
have recognized that the intentional tort-feasor addressed in
§ 81-8,219(4) is a governmental employee.
The FTCA legislative history pertaining to the assault excep-
tion was summarized in Panella v. United States, 216 F.2d
622 (2d Cir. 1954), the case relied upon in Sheridan, supra,
for its conclusion that a cause of action may exist where there
is an allegation of antecedent negligence by the government,
notwithstanding the existence of an assault in the narrative.
In particular, the legislative history of the FTCA shows that
the “‘assault and battery’ exception related to acts of govern-
ment employees.” Panella, 216 F.2d at 626. The debate of
“Hearings on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess.
p. 33” in 1942 shows the following questions and answers:
“‘Mr. Robsion: On that point of deliberate assault[,] that is
where some agent of the Government gets in a fight with
some fellow? Mr. Shea: Yes. Mr. Robsion: And socks him?
Mr. Shea: That is right.’” Panella, 216 F.2d at 626 (emphasis
omitted).
Most of our string of cases discussing the intentional tort
assault exception under the State Tort Claims Act, and its
roughly comparable counterpart in the Political Subdivisions
Tort Claim Act, have involved intentional acts committed by
- 40 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
state or local governmental employees, and we have applied
the exception and found immunity thus resulting in dismissal.
E.g., Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d
746 (2019) (involving city employee choking victim); Britton
v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011)
(involving law enforcement shooting the decedent); Johnson
v. State, 270 Neb. 316, 700 N.W.2d 620 (2005) (involv-
ing sexual assault by Department of Correctional Services
employee). However, in Doe v. Omaha Pub. Sch. Dist., 273
Neb. 79, 727 N.W.2d 447 (2007), a student was the assailant
and the exception did not apply; hence, the political subdivi-
sion waived immunity.
The majority relies on this string of cases (except for Doe)
to support its decision. As I noted above, in these cases, the
assailant was a governmental employee and it was the con-
duct of these actors to which the statutory assault exception
was addressed and from whose acts the governmental entity
remained immunized. These cases merely say that the govern-
ment does not lose its immunity in cases where injuries arise
from assaults by government actors.
The majority opinion’s reliance on this string of cases is not
helpful where, as here, the assault was committed by a nongov-
ernmental individual, i.e., an inmate. As explained, the State
Tort Claims Act’s general waiver of immunity applies only to
governmental employees. The claims covered by the State Tort
Claims Act are those claims which involve “the negligent or
wrongful act or omission of any employee of the [S]tate.”
§ 81-8,210(4). It logically follows that, as stated in Sheridan,
[t]he exception should therefore be construed to apply
only to claims that would otherwise be authorized by
the basic waiver of sovereign immunity. Since an assault
by a person who was not employed by the Government
could not provide the basis for a claim under FTCA [or
the State Tort Claims Act], the [intentional tort] exception
could not apply to such an assault; rather, the exception
- 41 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
only applies in cases arising out of assaults by federal [or
State] employees.
Sheridan v. United States, 487 U.S. 392, 400, 108 S. Ct. 2449,
101 L. Ed. 2d 352 (1988).
For completeness, I note that I am aware of more nuanced
considerations where there is some question as to whether the
government-employed assailant was acting within the scope
of his or her duties at the time of the incident and other cases
where the government is being sued for preceding acts of
negligent hiring, retention, or supervision of a government-
employed assailant. See Rebecca L. Andrews, So the Army
Hired an Ax-Murderer: The Assault and Battery Exception to
the Federal Tort Claims Act Does Not Bar Suits for Negligent
Hiring, Retention and Supervision, 78 Wash. L. Rev. 161
(2003). But these issues are not implicated in the instant case.
Indeed, with respect to the former, Sheridan clarifies that in
permitting the negligence claim to go forward, the assailant’s
“employment status [at the moment of the incident] has [no]
bearing on the basis for petitioners’ [negligence] claim for
money damages, [and § 2680(h),] the intentional tort exception
to the FTCA[,] is not applicable in this case.” 487 U.S. at 403.
Here, the basis for appellant’s claim is the tort of negligence,
independent from the injury resulting from an intentional act
by an assailant who was not a governmental employee. That
should end the matter, but given the majority opinion, the
analysis must continue.
Sheridan Rejects the “But for the Assault”
Rationale Relied On by the
Majority in This Case
The majority finds that the assault need not be by a govern-
mental employee so long as there is an assault somewhere in
the picture. That is, the majority states that the State’s alleged
antecedent negligence arises only as a result of the subsequent
assault albeit by a nongovernmental actor. The majority rea-
sons that “but for” the assault, there can be no alleged neg-
ligence by the State. The “but for” rationale of the majority
- 42 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
here is reminiscent of the plurality view in United States v.
Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985),
but that view was later expressly rejected in the Sheridan
opinion. See Andrews, supra.
The “but for” rationale adopted by the majority suffers from
several defects, including confusing “claim” with “injury.”
Not only is it belied by the language of the statute discussed
above, but it ignores a basic precept of tort law that one injury
“can arise from more than one wrongful act[s]”—in this case,
a negligence “claim” which is distinct from an assault. See
Sheridan v. United States, 487 U.S. 392, 405, 108 S. Ct. 2449,
101 L. Ed. 2d 352 (1988) (Kennedy, J., concurring). See,
also, 1 Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 34 (2010). An event may have more
than one proximate cause. See 1 Restatement (Third), supra.
An intentional act intervening between a negligent act and
the result does not always vitiate liability for the negligence.
Id. A superseding cause of harm will not excuse an actor’s
negligence where the actor should have realized the likelihood
that such a situation might be created and the third person
might avail himself of the opportunity to commit such a tort or
crime. Id. As Justice Kennedy stated in Sheridan, the “but for”
approach adopted by the Sheridan dissent (and by this court’s
majority) implies that the “intentional act somehow obliterates
the legal significance of any negligence that precedes or fol-
lows it.” 487 U.S. at 406 (Kennedy, J., concurring).
Contrary to the majority, I read the complaint to allege neg-
ligence by the TSCI staff in a variety of ways, e.g., violating
duty of care for inmates, not following regulations regarding
the decision to double bunk, ignoring the known dangerous
propensity of Schroeder, et cetera, which acts are distinct and
predate the intentional assault by the nongovernmental assail-
ant. In Block v. Neal, 460 U.S. 289, 298, 103 S. Ct. 1089, 75
L. Ed. 2d 67 (1983), the U.S. Supreme Court explained that
given the language and history of the FTCA, even where a
governmental employee’s conduct makes certain claims not
- 43 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
actionable due to an exception in 28 U.S.C. § 2680(h), a claim-
ant is not barred by that statute from pursuing a distinct claim
“arising out of other aspects of the Government’s conduct.”
As stated in a concurrence to an opinion of the U.S. Court of
Appeals for the 11th Circuit: “So it is clear that any suggestion
that [the intentional tort exception,] § 2680(h)[,] bars all claims
for which the injuries arose directly out of an excepted tort is
overly broad, incorrect, and inconsistent with the governing
law of Sheridan.” Alvarez v. U.S., 862 F.3d 1297, 1314 (11th
Cir. 2017) (Rosenbaum, J., concurring).
Appellant’s Negligence Cause of Action
Against the State Did Not “Arise” From
the Nongovernmental Assailant’s
Intentional Assault
Appellant alleged a cause of action for negligence against
the State by virtue of certain governmental employees alleg-
edly having failed in their duty to protect and care for the
inmate Berry. Although another inmate, Schroeder, assaulted
Berry, the State’s alleged antecedent negligence is premised
on breach of a “different duty,” see Block, 460 U.S. at 297,
sometimes referred to as an “independent affirmative duty.”
See LaFrancis v. U.S., 66 F. Supp. 2d 335 (D. Conn. 1999)
(collecting cases under doctrine of independent affirmative
duty). The injury from the assault on Berry can be traced back
to more than one type of tortious conduct, and the two torts
at issue, negligence and an intentional tort, do not rely on the
same factual allegations.
Sheridan, supra, has been described as carving out an
“exception to an exception to an exception to a general rule.”
CNA v. United States, 535 F.3d 132, 148 (3d Cir. 2008). The
general rule is sovereign immunity, the first exception is the
FTCA’s limited waiver of the government’s immunity, the sec-
ond exception is the intentional tort exception that reinstates
the government’s immunity, and the third exception is the
narrow category of cases, identified in Sheridan, which may
- 44 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
proceed against the sovereign. As noted, the third category
reflects the independent affirmative duty doctrine.
The Sheridan Court held that “in at least some situations[,]
the fact that an injury was directly caused by an assault or
battery will not preclude liability against the Government for
negligently allowing the assault to occur.” 487 U.S. at 398.
Contrary to the majority’s view to the effect that the State’s
alleged negligence arises from the assault, the roots of the
assault lie in the State’s own alleged negligence. So it would
be contrary to the language of the State Tort Claims Act and
unsound to afford immunity to an alleged breach of duty by
a governmental entity because an intervening event, the very
anticipation of which made that governmental entity’s con-
duct negligent, has brought about the expected harm. Doe v.
Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986).
The U.S. Court of Appeals for the 10th Circuit, relying on
U.S. Supreme Court precedent, summarized the key inquiry
in cases of two torts as “can an FTCA plaintiff escape the bar
of § 2680(h) by arguing that the battery was the natural con-
sequence of prior governmental negligence . . . ?” Franklin v.
U.S., 992 F.2d 1492, 1498 (10th Cir. 1993). If the answer to this
question is in the affirmative, the complaint survives. The com-
plaint in this case does make this argument, and in my view,
should not be dismissed at this stage of the proceedings.
In Sheridan v. United States, 487 U.S. 392, 108 S. Ct.
2449, 101 L. Ed. 2d 352 (1988), where liability against the
government was not precluded, the Court relied on two cases
which involved assaults by inmates rather than by govern-
mental employees. Both cases alleged negligence by federal
employees by failing to prevent the assault that caused injury:
United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L.
Ed. 2d 805 (1963) (allowing 12 inmates to gather to beat up
one inmate, the plaintiff), and Panella v. United States, 216
F.2d 622 (2d Cir. 1954). The Sheridan Court agreed with
Judge (later Justice) Harlan’s reasoning in Panella based on
statutory interpretation to the effect that the intentional tort
- 45 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
exception only applied to claims already authorized by the
waiver of sovereign immunity, that is, to claims involving
torts committed by governmental employees. In Nebraska,
that concept is found in § 81-8,210(4), which provides that
the claims to which sovereign immunity is waived are “the
negligent or wrongful act or omission of any employees of the
[S]tate.” Contrary to § 81-8,210(4), the majority’s reasoning
assumes that the waiver of the State’s immunity includes a
claim against the State under the State Tort Claims Act based
solely on an inmate’s assault of another inmate. But there is no
such cognizable claim under the State Tort Claims Act, so one
cannot logically apply an exception to a nonexistent claim. See
Sheridan, supra.
An assault by a nongovernmental employee could not pro-
vide the basis for a claim under the FTCA, and the U.S.
Supreme Court held that the assault exception “only applies in
cases arising out of assaults by federal employees.” Sheridan,
487 U.S. at 400. This conclusion is based on federal statutory
language comparable to that of Nebraska’s State Tort Claims
Act. In view of the foregoing, the Sheridan Court found it
unnecessary to rely on the temporal reasoning in Muniz to the
effect that the plaintiff’s claim did not “‘arise out of’” the
assault by the inmates that caused the injuries, but instead the
focus is on
the Government’s negligent act or omission [in failing
to prevent the assault that caused injury]; the intentional
commission is simply considered as part of the causal link
leading to the injury. Under this view, the assailant’s indi-
vidual involvement would not give rise to Government
liability, but antecedent negligence by Government agents
could . . . .
Sheridan, 487 U.S. at 399. In both Muniz and Panella, upon
which Sheridan relied, just as in the instant case, recovery was
sought based on the negligence of the governmental entity, and
given the fact that the assaults were committed by inmates, the
intentional tort exception was not applicable.
- 46 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
MOSER v. STATE
Cite as 307 Neb. 18
CONCLUSION
Given the foregoing analysis, in my view, this complaint
should not be dismissed under the intentional torts assault
exception to the waiver of sovereign immunity because the
complaint adequately alleges negligence by the State in vio-
lation of its own regulations for the act of “double bunk-
ing” a “talkative,” soon-to-be-released inmate with a “bad
temper[ed]” inmate serving a life sentence, the latter of whom
within 5 days of sharing a cell “wrapped his arm around the
[former’s] neck and squeezed for five minutes” until “he felt
certain [the former] was dead.”