Lopez v. Catholic Charities ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/15/2023 09:07 AM CST
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LOPEZ V. CATHOLIC CHARITIES
Cite as 315 Neb. 617Sandra Lopez, appellant, v. Catholic Charities
of the Archdiocese of Omaha, a Nebraska
nonprofit corporation, appellee.
___ N.W.2d ___
Filed December 15, 2023. No. S-23-301.
1. Motions to Dismiss: Rules of the Supreme Court: Workers’
Compensation. As an affirmative defense, workers’ compensation
exclusivity can be raised in a motion to dismiss for failure to state a
claim under Neb. Ct. R. of Pldg. § 6-1112(b)(6).
2. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal
and Error. A district court’s grant of a motion to dismiss for failure to
state a claim under Neb. Ct. R. of Pldg. § 6-1112(b)(6) is reviewed de
novo, accepting all the allegations in the complaint as true and drawing
all reasonable inferences in favor of the nonmoving party.
3. Motions to Dismiss: Torts: Workers’ Compensation: Proof. For an
employee to prevail against a motion to dismiss a tort action against
his or her employer, the employee must allege sufficient facts that, if
true, would demonstrate the Nebraska Workers’ Compensation Act does
not apply.
4. Torts: Workers’ Compensation: Statutes. Under the workers’ com-
pensation statutes, employees give up the complete compensation that
they might recover under tort law in exchange for no-fault ben-
efits that they quickly receive for most economic losses from work-
related injuries.
5. Statutes: Legislature: Public Policy. It is the function of the Legislature,
through the enactment of statutes, to declare what is the law and public
policy of this state.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
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LOPEZ V. CATHOLIC CHARITIES
Cite as 315 Neb. 617Thomas M. White, Amy S. Jorgensen, and Hannah
Schweitzer, Senior Certified Law Student, of White &
Jorgensen, for appellant.
Heather B. Veik and Jerald L. Rauterkus, of Erickson  |
Sederstrom, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
The Nebraska Workers’ Compensation Act has long been
understood to provide the exclusive remedy for at least some
injuries suffered by employees at work. When workers’ com-
pensation is an employee’s exclusive remedy, the employee
cannot assert tort theories of recovery against his or her
employer in district court. In this case, Sandra Lopez sued her
employer in district court, asserting claims of assault and inten-
tional infliction of emotional distress. Her complaint alleged
that agents of her employer planned and carried out a realistic
active shooter drill at its offices and that Lopez suffered physi-
cal and mental injuries as a result. The district court dismissed
the suit, concluding that workers’ compensation was Lopez’
exclusive remedy. Lopez appeals the dismissal and primarily
asks us to hold that an employee may pursue tort theories of
recovery against his or her employer for injuries suffered in
the scope of employment if it is shown that the employer acted
with a specific intent to injure the employee. We are unper-
suaded by Lopez’ arguments and therefore affirm.
BACKGROUND
Lopez’ Complaint.
In May 2022, Lopez was employed by Catholic Charities
of the Archdiocese of Omaha (Catholic Charities). Her allega-
tions in this case concern an active shooter drill carried out at
Catholic Charities’ offices at that time.
According to Lopez’ complaint, three individuals identi-
fied as the executive director, chief of operations, and chief
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LOPEZ V. CATHOLIC CHARITIES
Cite as 315 Neb. 617of community engagement for Catholic Charities planned and
carried out the active shooter drill one morning at the office at
which Lopez worked. Lopez had no advance notice that a drill
was taking place. Instead, Lopez claims that she reacted in fear
after hearing loud “bangs” on the door to her office suite and
being urged by the chief of community engagement to get out
of her office. When Lopez followed others toward the exits, the
executive director told her a shooting was taking place. Lopez
later heard gunshots and saw a fellow employee lying outside
on the ground, apparently dead or mortally wounded, and with
what appeared to be blood on her hand. Lopez ran away from
the building and toward a nearby shopping plaza. While run-
ning away from the building, Lopez jumped off a retaining
wall and “jarr[ed]” her back upon landing. Lopez alleged that
the chief of operations later told her son that “it was all play
acting and a safety drill” and that “‘[w]e wanted to see how
people reacted.’”
Lopez alleged that she went to counseling the day after the
drill and has continued to seek treatment to address fear and
depression caused by the above-described events. She also
alleged that she injured her back as a result of jumping off the
retaining wall and that she continues to receive treatment for
that injury as well.
Based on these allegations, Lopez asserted that Catholic
Charities was liable for assault and intentional infliction of
emotional distress. In support of her assault theory of recovery,
Lopez alleged that Catholic Charities had intentionally ter-
rorized her and caused her to fear for her life. Her complaint
sought, among other things, damages for both mental and
physical injuries, past and future medical expenses, perma-
nent disability, and the loss of earnings and the impairment of
future earning capacity.
Dismissal by District Court.
Catholic Charities moved to dismiss Lopez’ complaint pur-
suant to Neb. Ct. R. Pldg. § 6-1112(b)(6) (rule 12(b)(6)). It
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LOPEZ V. CATHOLIC CHARITIES
Cite as 315 Neb. 617asserted that because the Nebraska Workers’ Compensation
Act (the Act) provided the exclusive remedy for Lopez’ inju-
ries, her complaint failed to state a claim upon which relief
could be granted.
The district court granted Catholic Charities’ motion. In a
written order, it found that the Act was Lopez’ exclusive rem-
edy. It specifically rejected Lopez’ argument that she was enti-
tled to pursue tort theories of recovery in district court because
she had alleged intentional torts and that Catholic Charities
acted with specific intent to injure her.
Lopez filed a timely appeal, and we moved the case to
our docket.
ASSIGNMENT OF ERROR
Lopez assigns that the district court erred by granting
Catholic Charities’ motion to dismiss.
STANDARD OF REVIEW
The district court granted Catholic Charities’ rule 12(b)(6)
motion to dismiss for failure to state a claim. Although the
standard of review for such motions is well-established, we
conclude that this is not a case in which we can quickly recite
that standard and proceed to apply it. As we will explain,
there is some inconsistency in our case law as to whether a
motion to dismiss based on a contention that the Act pro-
vides the exclusive remedy is an affirmative defense and thus
properly raised via rule 12(b)(6) or a matter of subject matter
jurisdiction and thus properly raised via Neb. Ct. R. Pldg.
§ 6-1112(b)(2).
In one case, we specifically described the exclusivity of the
Act as an affirmative defense that is subject to waiver and that
the employer is obligated to prove. See Plock v. Crossroads
Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991), over-
ruled on other grounds, Hynes v. Hogan, 251 Neb. 404,
558 N.W.2d 35 (1997), and disapproved on other grounds,
Downey v. Western Comm. College Area, 282 Neb. 970, 808
N.W.2d 839 (2012). In another case decided just 2 years prior,
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LOPEZ V. CATHOLIC CHARITIES
Cite as 315 Neb. 617however, we stated that because the plaintiffs’ allegations fell
within the ambit of the Act, the district court was “without
subject matter jurisdiction in regard to those allegations”
and sustained the district court’s dismissal on subject matter
jurisdiction grounds. See Abbott v. Gould, Inc., 232 Neb. 907,
914, 443 N.W.2d 591, 596 (1989). This inconsistent treatment
appears to have continued in subsequent years. See Estate of
Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d
236 (2013) (finding that the Act provided exclusive remedy
and affirming dismissal for failure to state a claim); Ihm v.
Crawford & Co., 254 Neb. 818, 580 N.W.2d 115 (1998) (find-
ing that the Act provided exclusive remedy and affirming dis-
missal for lack of subject matter jurisdiction).
We conclude today that to the extent we have suggested that
the doctrine of workers’ compensation exclusivity operates as
a limitation on the subject matter jurisdiction of district courts
to hear common-law tort claims, our language was imprecise.
Subject matter jurisdiction refers to the power of a tribunal
to hear and determine a case in the general class or category
to which the proceedings in question belong and to deal with
the general subject matter involved. See, e.g., Bleich v. Bleich,
312 Neb. 962, 981 N.W.2d 801 (2022). Article V, § 9, of the
Nebraska Constitution states that “[t]he district courts shall
have both chancery and common law jurisdiction, and such
other jurisdiction as the Legislature may provide . . . .” And
because a district court’s general jurisdiction is conferred by
the Nebraska Constitution, the Legislature is without power to
take that jurisdiction away. See Susan L. v. Steven L., 273 Neb.
24, 729 N.W.2d 35 (2007).
Given the foregoing, workers’ compensation exclusiv-
ity cannot function as a limit on the district court’s subject
matter jurisdiction over common-law tort claims. Article V,
§ 9, gives the district courts subject matter jurisdiction to
decide common-law tort claims. That authority cannot be
taken away via statute, and the doctrine of workers’ compensa-
tion exclusivity arises from statute. See, e.g., Bennett v. Saint
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LOPEZ V. CATHOLIC CHARITIES
Cite as 315 Neb. 617Elizabeth Health Sys., 273 Neb. 300, 729 N.W.2d 80 (2007)
(identifying statutory sources of workers’ compensation exclu-
sivity jurisprudence); Muller v. Tri-State Ins. Co., 252 Neb. 1,
560 N.W.2d 130 (1997) (same).
Although the Legislature lacks the authority to divest district
courts of their subject matter jurisdiction over common-law
tort claims, the Legislature can create an affirmative defense to
such tort claims. We understand workers’ compensation exclu-
sivity to be such an affirmative defense. Our conclusion that
workers’ compensation is an affirmative defense and not a limit
on the district court’s subject matter jurisdiction is consist­
ent with McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d
473 (Mo. 2009), a case in which the Missouri Supreme Court
resolved its own inconsistent precedent and concluded that
workers’ compensation exclusivity is an affirmative defense
and not a limit on the subject matter jurisdiction conferred on
circuit courts by the Missouri Constitution.
[1-3] As an affirmative defense, workers’ compensation
exclusivity can be raised in a motion to dismiss for failure
to state a claim under rule 12(b)(6). See Weeder v. Central
Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005) (hold-
ing that defendant can assert affirmative defense in rule
12(b)(6) motion when allegations that are subject of affirma-
tive defense appear on face of complaint). A district court’s
grant of a motion to dismiss for failure to state a claim under
rule 12(b)(6) is reviewed de novo, accepting all allegations
in the complaint as true and drawing all reasonable infer-
ences in favor of the nonmoving party. Benjamin M. v. Jeri
S., 307 Neb. 733, 950 N.W.2d 381 (2020). In Estate of Teague
v. Crossroads Co-op Assn., 286 Neb. 1, 6, 834 N.W.2d 236,
243 (2013), we stated that for an employee to withstand an
employer’s rule 12(b)(6) motion to dismiss based on workers’
compensation exclusivity, “the employee must allege suf-
ficient facts that, if true, would demonstrate the Act does
not apply.”
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Cite as 315 Neb. 617ANALYSIS
[4] On a number of occasions we have said that the Act
“provides the exclusive remedy by the employee against the
employer for any injury arising out of and in the course of the
employment.” See, e.g., Dutcher v. Nebraska Dept. of Corr.
Servs., 312 Neb. 405, 416, 979 N.W.2d 245, 253-54 (2022)
(internal quotation marks omitted) (emphasis in original). See,
also, Ihm v. Crawford & Co., 254 Neb. 818, 821, 580 N.W.2d
115, 118 (1998) (“when an employee sustains an injury that
arises out of and in the course of his or her employment and
such injury is covered by [the Act], then the employee sur-
renders his or her right to any other method, form, or amount
of compensation”). As noted above, the exclusivity of the
workers’ compensation remedy is derived from statute. We
have recognized that the principle of workers’ compensa-
tion exclusivity rests on an implicit bargain in which, under
the workers’ compensation statutes, employees give up the
complete compensation that they might recover under tort law
in exchange for no-fault benefits that they quickly receive
for most economic losses from work-related injuries. See
Dutcher, supra.Lopez does not dispute that, in general, the Act provides the
exclusive remedy for injuries arising out of and in the course
of employment and that an employee may not sue his or her
employer in tort for such injuries. She makes three arguments,
however, as to why her complaint should not have been dis-
missed. We address these arguments in the sections below.
Specific Intent to Injure.
Lopez’ primary argument is that her complaint should not
have been dismissed because she has alleged that individu-
als in leadership positions at Catholic Charities acted with
specific intent to injure her. She contends that her complaint
is fairly read to allege that those individuals planned the drill
with the intention of placing Lopez and other employees in
fear and distress and that such facts establish a specific intent
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Cite as 315 Neb. 617to injure. She asks us to hold that an employee is not limited
to a workers’ compensation recovery if it is demonstrated that
the employer committed intentional torts and acted with a spe-
cific intent to injure the employee.
This court has previously declined invitations to recog-
nize an intentional tort exception to the doctrine of workers’
compensation exclusivity. In Abbott v. Gould, Inc., 232 Neb.
907, 443 N.W.2d 591 (1989), employees sought to sue their
employer in tort based on allegations that the employer inten-
tionally subjected the employees to toxins and concealed from
the employees the dangers of such exposure. We affirmed
the district court’s dismissal based on workers’ compensation
exclusivity. We reasoned that the purpose of the workers’ com-
pensation statute was to do away with common-law remedies
and defenses and to give compensation without regard to the
employer’s fault. We concluded that we would subvert the
purpose of the workers’ compensation statutes if we were to
permit employees to pursue intentional tort claims against their
employers outside the workers’ compensation system.
Over two decades later, in Estate of Teague v. Crossroads
Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013), we were
presented with another case in which a party sought to avoid
workers’ compensation exclusivity by alleging intentional
torts. In that case, an employee’s supervisor asked him to
enter a grain bin and the employee died of asphyxiation
after being engulfed in grain. The employee’s estate alleged
that the employer intentionally ignored safety regulations,
concealed known dangers, and knew that serious injury was
substantially certain to occur as a result. We again held that
workers’ compensation was the exclusive remedy. We first
observed that while the employee’s estate had alleged that
the employer knew its conduct was substantially certain to
result in injury, the estate had not alleged that the employer
acted with a specific intent to injure. We acknowledged that a
minority of jurisdictions had adopted an exception that allows
an employer to be sued in tort if the employer knew the
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Cite as 315 Neb. 617tortious conduct was substantially certain to result in injury,
but we declined to adopt such an exception. We explained that
such an exception has proven difficult to apply and would be
inconsistent with the purposes of the Act.
Perceiving that Estate of Teague, supra, did not address
cases in which the employer is alleged to have acted with a
specific intent to injure the employee, Lopez asks us to hold
that an employee may pursue and obtain a tort recovery if
he or she can plead and prove the employer acted with such
intent. Lopez contends that recognition of such a narrow
exception is not only left open by Estate of Teague, supra, but
also supported by the language of the Act. She points out that
the Act provides compensation to employees when injury is
caused “by accident.” See Neb. Rev. Stat. § 48-101 (Reissue
2021). She submits that when an employer acts with specific
intent to injure the employee, that cannot be characterized as
an accident. And, Lopez argues, because she has alleged that
Catholic Charities acted with specific intent to injure her, the
Act does not cover her claims and she is entitled to pursue
tort theories in district court.
We disagree with Lopez’ argument that if an employer
acts with specific intent to injure an employee, the resulting
injury cannot be accidental. The Act defines accident as “an
unexpected or unforeseen injury happening suddenly and vio-
lently, with or without human fault, and producing at the time
objective symptoms of an injury.” Neb. Rev. Stat. § 48-151(2)
(Reissue 2021). Lopez argues that she has not alleged an
accident under this definition because the fear and distress
she suffered because of the active shooter drill were not unex-
pected or unforeseen but, according to her complaint, deliber-
ately planned by agents of Catholic Charities. This argument,
however, improperly focuses on whether the injuries were
unexpected or unforeseen to the employer.
This court long ago concluded that an injury is acci-
dental and thus compensable under workers’ compensation
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Cite as 315 Neb. 617statutes, if it is unexpected or unforeseen to the employee. In
Myszkowski v. Wilson and Company, Inc., 155 Neb. 714, 717,
53 N.W.2d 203, 206 (1952), this court, citing cases from other
jurisdictions and a workers’ compensation treatise of that era,
said that “an assault is an accident within the meaning of [the
Act] when from the point of view of the workman who suf-
fers from it[,] it is unexpected and without design on his part
although intentionally caused by another” (internal quotation
marks omitted) (emphasis supplied). See, also, Reserve Life
Insurance Company v. Hosey, 208 Va. 568, 571, 159 S.E.2d
633, 635 (1968) (noting acceptance of definition of accident
as event that is “unusual and not expected by the person to
whom it happens”) (internal quotation marks omitted); Klein
v. New York Times Co., 317 N.J. Super. 41, 721 A.2d 29(1998) (holding that employee who punched electrical box in
anger was not injured by accident because employee should
have expected injury). Consistent with that understanding,
in subsequent cases, we have analyzed whether injuries were
accidental and thus compensable for purposes of the Act by
determining whether they were unexpected or unforeseen to
the employee. See, e.g., Owen v. American Hydraulics, 258
Neb. 881, 606 N.W.2d 470 (2000).
Indeed, our decision in Estate of Teague, supra, makes
sense only if the question of whether the employee’s death
was unexpected or unforeseen is viewed from the perspective
of the employee. After all, the employee’s estate in Estate of
Teague alleged that the employer was substantially certain
that serious injury would befall the employee. If the employer
was substantially certain injury would occur, the injury could
not fairly be described as unexpected or unforeseen if viewed
from the employer’s perspective. And, yet, we affirmed the
district court’s determination that the death was a compen-
sable accident for purposes of the Act. For these reasons, we
disagree with Lopez that the accidental injury requirement in
the Act supports her argument that workers’ compensation
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Cite as 315 Neb. 617exclusivity should not apply when an employer acts with spe-
cific intent to injure an employee.
In addition to her argument based on the accidental injury
requirement, Lopez also asks us to follow the lead of other
jurisdictions that have recognized intentional tort exceptions to
workers’ compensation exclusivity provisions. Although Lopez
is correct that many jurisdictions recognize some form of
intentional tort exception to workers’ compensation exclusiv-
ity, many others do not. See 9 Arthur Larson et al., Larson’s
Workers’ Compensation Law § 103.01 (2017).
Those jurisdictions that have recognized intentional tort
exceptions have set forth different rationales for doing so.
Some states, like South Dakota, have specific legislative provi-
sions exempting intentional torts from their statutes that pro-
vide for workers’ compensation exclusivity. See, e.g., Jensen
v. Sport Bowl, Inc., 469 N.W.2d 370, 371 (S.D. 1991) (citing
“SDCL 62-3-2” as basis for intentional tort exception to work-
ers’ compensation exclusivity). Other states have recognized
an intentional tort exception without specific legislative lan-
guage. The Indiana Supreme Court, for example, in a decision
Lopez relies upon, held that its exclusivity provision did not
apply to intentional torts based on its conclusion that inten-
tional torts were not accidental and therefore not even covered
by workers’ compensation. See Baker v. Westinghouse Elec.
Corp., 637 N.E.2d 1271 (Ind. 1994). Other states have contin-
ued to hold that injuries inflicted intentionally are accidental
and thus compensable under workers’ compensation statutes
if unforeseen to the injured party, but have nonetheless rec-
ognized an intentional tort exception to exclusivity based on
a determination that the employer should not be able to assert
that the injury was accidental if he or she intended to cause
the injuries at issue. See, e.g., Meerbrey v. Marshall Field and
Co., Inc., 139 Ill. 2d 455, 564 N.E.2d 1222, 151 Ill. Dec. 560(1990). See, also, 9 Larson et al., supra, § 103.01.
Having surveyed intentional tort exceptions recognized by
other jurisdictions, we are not persuaded to adopt a similar
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Cite as 315 Neb. 617exception here. Unlike South Dakota’s workers’ compensation
statute, the Act does not contain an explicit provision exempt-
ing intentional torts from workers’ compensation exclusivity.
And we are not convinced that the rationales for recognizing
intentional tort exceptions in states without specific statutory
language are consistent with the Act and our precedent. As
we have discussed, under our precedent, an injury occurs by
accident and is therefore compensable under the Act if it is
unexpected or unforeseen to the person suffering the injury.
Furthermore, the Act provides that employees covered by the
Act “surrender . . . their rights to any other method, form, or
amount of compensation or determination thereof.” Neb. Rev.
Stat. § 48-111 (Reissue 2021). See, also, Ihm v. Crawford &
Co., 254 Neb. 818, 580 N.W.2d 115 (1998). We see no lan-
guage in the Act that would support a rule whereby injuries
occurring as a result of an employer’s specific intent to injure
an employee are exempted from the employee’s surrender of
rights to other forms of compensation but all other injuries
are not.
For these reasons, we find that Lopez’ allegations that
agents of Catholic Charities acted with specific intent to injure
her did not save her complaint from dismissal on workers’
compensation exclusivity grounds.
Article I, § 13, of Nebraska Constitution.
Lopez next argues that she should be permitted to pursue
her tort claims in district court because she will be denied any
recovery under the Act. Lopez contends that this complete
denial of any recovery violates article I, § 13, of the Nebraska
Constitution, specifically its language providing that “[a]ll
courts shall be open, and every person, for any injury done him
or her in his or her lands, goods, person, or reputation, shall
have a remedy by due course of law . . . .”
In support of her position that she will not be able to obtain
any recovery for her injuries under the Act, Lopez relies
on Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d
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Cite as 315 Neb. 617206 (2007). In that case, a state trooper died as a result of
a self-inflicted gunshot wound and his surviving spouse and
children sought workers’ compensation benefits. Their theory
was that the trooper suffered a compensable accident when his
learning of the consequences of a work-related error caused
changes in his brain that prompted his suicide. We held that
the petition did not state a claim for accidental injury. We
stated that “an injury caused by a mental stimulus does not
meet the requirement in § 48-151(4) that a compensable
accidental injury involve ‘violence to the physical structure
of the body.’” Zach, supra, 273 Neb. at 8-9, 727 N.W.2d at
212. But, see, Neb. Rev. Stat. § 48-101.01(2) (Reissue 2021)
(adopted after Zach and providing circumstances under which
“[p]ersonal injury includes mental injuries and mental illness
unaccompanied by physical injury for an employee who is a
first responder” or similar). Lopez argues that under Zach,
supra, the injuries to her back are not compensable under the
Act because they were caused by a mental stimulus.
It is not clear to us that Lopez is correct that the rule
recognized in Zach, supra, stands in the way of her receiv-
ing compensation under the Act. But we find it unnecessary
to resolve that question in this appeal. Even assuming that
Lopez is correct that she will not be able to obtain compensa-
tion under the Act, we find that Lopez has not complied with
the procedural requirements for us to consider her constitu-
tional argument.
We understand Lopez to contend that the Act is uncon-
stitutional to the extent it precludes her from suing in tort
yet provides no compensation under the rule announced in
Zach, supra. This is a challenge to the constitutionality of the
Act and thus implicates Neb. Ct. R. App. P. § 2-109(E) (rev.
2022). See State v. Denton, 307 Neb. 400, 949 N.W.2d 344(2020). Section 2-109(E) requires parties presenting a case
involving the federal or state constitutionality of a statute to
file and serve notice thereof by separate written notice or in a
petition to bypass and to provide the Attorney General with a
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Cite as 315 Neb. 617copy of its brief if the Attorney General is not already a party
to the case. See State v. Catlin, 308 Neb. 294, 953 N.W.2d
563 (2021). As we have explained, § 2-109(E), among other
things, ensures that the Attorney General can carry out the
duty to defend duly adopted statutory enactments that are not
unconstitutional. See Denton, supra. Without strict compli-
ance with § 2-109(E), this court will not address a constitu-
tional challenge to a statute. Denton, supra.Our record contains no indication that Lopez complied with
§ 2-109(E) in this case. We thus cannot consider her argument
that dismissal of her complaint pursuant to the Act violated
article I, § 13.
Public Policy.
Finally, Lopez argues that the dismissal of her complaint
violates public policy. Lopez asserts that dismissal of com-
plaints like hers on workers’ compensation exclusivity grounds
allows employers to intentionally frighten and cause injuries
to their employees and escape liability. This, Lopez contends,
violates public policy.
[5] Again, it is not clear to us that Lopez is precluded from
obtaining any recovery in this case. In any event, we need not
answer that question to address her argument. As we often rec-
ognize, it is the function of the Legislature, through the enact-
ment of statutes, to declare what is the law and public policy
of this state. Rogers v. Jack’s Supper Club, 304 Neb. 605, 935
N.W.2d 754 (2019). Lopez has not, however, identified any
particular statute or other source of recognized legal authority
that precludes dismissal in this case. Instead, she appears to
ask us to reverse the district court’s dismissal based on a deter-
mination that this outcome is unfair or creates bad incentives
for employers.
In response to this argument, we find guidance from the
Iowa Supreme Court. That court has said that public policy “is
not determined by this court’s generalized concepts of fairness
and justice or our determination of what might be most just
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Cite as 315 Neb. 617in a particular case.” Claude v. Guaranty Nat. Ins. Co., 679
N.W.2d 659, 663 (Iowa 2004) (internal quotation marks omit-
ted). Because Lopez has not identified any particular statute or
other source of recognized legal authority that precludes dis-
missal here, we find her public policy argument lacks merit.
Nonphysical Injuries.
For the reasons set forth above, we find that each of Lopez’
arguments as to why the district court erred by dismissing
her complaint lacks merit. Prior to concluding, we note that
we are aware that a number of courts around the country
have held that when an employee sues his or her employer
and asserts solely nonphysical injuries, workers’ compensa-
tion is not the exclusive remedy. See 9 Arthur Larson et al.,
Larson’s Workers’ Compensation Law § 104.01 (2017); 1 John
P. Ludington et al., Modern Workers Compensation § 102:4
at 8 (Matthew J. Canavan & Donna T. Rogers eds., 2016)
(“[e]xclusivity applies only to personal injury or death liability,
not to other types of tort liability”). We are further aware that
in cases where an employee seeks recovery of both nonphysi-
cal and physical injuries, a number of courts have followed
the suggestion of a leading commentator and have found that
workers’ compensation is the exclusive remedy in such cases
only when the “essence of the tort” is physical. See 9 Larson et
al., supra, § 104.05[1] at 104-21.
In this case, although Lopez clearly alleged that she had
suffered some nonphysical injuries, she made no argument
that she should be allowed to pursue her tort claims in district
court because she asserted only nonphysical injuries. Such an
argument was presumably unavailable to her as her complaint
also alleged injuries to her back. Neither did Lopez argue
that she should be allowed to pursue her tort claims because,
although she claimed both physical and nonphysical injuries,
the essence of her claims were nonphysical. Instead, she made
only the arguments we have addressed and rejected above.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
LOPEZ V. CATHOLIC CHARITIES
Cite as 315 Neb. 617Because Lopez did not attempt to avoid dismissal based on
the principles set forth above, our decision today should not
be read to address whether and how the doctrine of workers’
compensation exclusivity applies to nonphysical injury torts.
CONCLUSION
Because we are not persuaded by Lopez’ arguments that the
district court erred in dismissing her complaint on workers’
compensation exclusivity grounds, we affirm.
Affirmed.