Pieper v. State ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/01/2021 09:09 AM CDT
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
PIEPER v. STATE
Cite as 29 Neb. App. 912John Pieper, appellant, v. State
of Nebraska, appellee.
___ N.W.2d ___
Filed June 1, 2021. No. A-20-557.
1. 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.
2. 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.
3. 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.
4. Tort Claims Act: Immunity: Waiver. The State Tort Claims Act 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.
5. Tort Claims Act: Immunity: Waiver: Appeal and Error. When a
plaintiff’s complaint shows on its face that a claim is barred by one of
the exceptions to the State’s waiver of immunity under the State Tort
Claims Act, the State’s inherent immunity from suit is a jurisdictional
issue that an appellate court cannot ignore.
6. Tort Claims Act: Assault: Words and Phrases. A broad definition of
“arising out of an assault or battery” is consistent with the plain lan-
guage of that phrase, which suggests that if a claim under the State Tort
Claims Act would not exist without an assault or battery, it arises out of
that assault or battery.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
PIEPER v. STATE
Cite as 29 Neb. App. 9127. Political Subdivisions Tort Claims Act: Tort Claims Act. Because the
language of the intentional tort exception is nearly identical under both
the Political Subdivisions Tort Claims Act and the State Tort Claims Act,
the cases construing the exception under the Political Subdivisions Tort
Claims Act are applicable to cases under the State Tort Claims Act and
vice versa.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellee.
Pirtle, Chief Judge, and Moore and Bishop, Judges.
Pirtle, Chief Judge.
INTRODUCTION
John Pieper appeals from an order of the district court
for Lancaster County which granted the State’s motion for
summary judgment on the basis that it lacked subject ­matter
jurisdiction because Pieper’s negligence claim was barred by
the discretionary function exception to Nebraska’s State Tort
Claims Act (STCA), Neb. Rev. Stat. § 81-8,209 et seq. (Reissue
2014). Based on the reasons that follow, we affirm the district
court’s order, albeit for a different reason.
BACKGROUND
Pieper is an inmate in the custody of the Nebraska Depart­
ment of Correctional Services (the Department), an agency
of the State of Nebraska. He was convicted of first degree
assault and first degree imprisonment. Through most of his
incarceration, Pieper has been housed at the Lincoln Cor­rec­
tional Center.
On September 22, 2016, Pieper was transferred to the
Nebraska State Penitentiary in order to participate in a vio-
lence reduction program that had been recommended for him.
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PIEPER v. STATE
Cite as 29 Neb. App. 912The program was not offered at the Lincoln Correctional
Center at that time. The day Pieper arrived at the penitentiary,
two inmates assaulted him, causing injuries.
On August 24, 2018, Pieper filed a complaint for dam-
ages against the State pursuant to the STCA. Pieper generally
alleged that the assault on him at the penitentiary was carried
out by two inmates who were members of a gang to which
Pieper once belonged. Pieper alleged that for some time prior
to his transfer, he had received threats indicating that he would
be assaulted by gang members if he were ever transferred to
the penitentiary. Pieper generally alleged that he had made
various Depart­ment personnel aware of the threats and the pos-
sibility of an assault if he were transferred and that the Depart­
ment ordered the transfer despite knowing of the threats. Pieper
set forth a claim of negligence on the part of the State, alleg-
ing that the State was negligent for failing to use the degree
of care required to provide reasonably adequate protection
for Pieper—who was an inmate in its institution—by failing
to take action to protect Pieper, despite its knowledge of the
substantial risk to Pieper’s safety. Pieper sought damages for
physical and mental injuries and emotional distress.
The State filed an answer generally denying Pieper’s allega-
tions. The State also raised various defenses, including that
the State was entitled to sovereign immunity and that Pieper’s
claim was barred by § 81-8,219(1) (claim based on perform­
ance of discretionary function) and § 81-8,219(4) (claim aris-
ing out of assault).
On February 1, 2020, the State filed a motion for summary
judgment, alleging that the court lacked subject matter juris-
diction because Pieper’s negligence claim was barred by the
discretionary function exception to the STCA.
Following a summary judgment hearing, the district court
granted the State’s motion for summary judgment and dismissed
Pieper’s complaint for lack of subject matter ­jurisdiction. The
court determined that under relevant statutes and regulations,
the decision to require Pieper to participate in the violence
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PIEPER v. STATE
Cite as 29 Neb. App. 912reduction program and to transfer him to the penitentiary to par-
ticipate in the program were matters of choice for Department
staff and were of the sort considered discretionary functions.
Therefore, it concluded that the discretionary function excep-
tion to the STCA applied and barred Pieper’s claim.
ASSIGNMENTS OF ERROR
Pieper assigns that the district court erred in (1) granting
summary judgment in favor of the State and (2) finding that it
lacked subject matter jurisdiction and that the case was barred
by the discretionary function exception to the STCA.
STANDARD OF REVIEW
[1] Whether the allegations 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 question of law, for which an appellate court has
a duty to reach its conclusions independent of the conclusions
reached by the district court. Moser v. State, 307 Neb. 18, 948
N.W.2d 194 (2020).
[2] 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. Id.ANALYSIS
Pieper assigns that the district court erred when it deter-
mined that his claim was barred by the discretionary function
exception to the STCA and granted the State’s motion for sum-
mary judgment.
The State argues that the district court’s dismissal should
be affirmed based on the discretionary function exception, but
can also be affirmed on an alternate basis. It contends that
because Pieper was assaulted by other inmates, the intentional
torts exception to the waiver of sovereign immunity applies.
See § 81-8,219(4).
[3,4] Through the STCA, the Legislature has waived the
State’s immunity with respect to certain, but not all, types
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PIEPER v. STATE
Cite as 29 Neb. App. 912of tort actions. Moser v. State, supra. 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 pri-
vate person, would be liable to the claimant for such injury. Id.See § 81-8,210(4).
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, misrepresentation, deceit, or
interference with contract rights.
The State argues that Pieper’s lawsuit is barred, not just by
§ 81-8,219(1), but also by the intentional tort exception found
in § 81-8,219(4). The State raised § 81-8,219(4) as a defense in
its answer, but did not argue that ground in regard to its motion
for summary judgment.
[5] We first note that we may consider the State’s conten-
tion that the exception set forth in § 81-8,219(4) is applicable.
The Nebraska Supreme Court has 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.’” Moser v. State, 307
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Nebraska Court of Appeals Advance Sheets
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PIEPER v. STATE
Cite as 29 Neb. App. 912Neb. 18, 24, 948 N.W.2d 194, 199 (2020), quoting Davis v.
State, 297 Neb. 955, 902 N.W.2d 165 (2017). 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. Moser v. State, supra.
In support of its argument that the intentional tort exception
applies in this case, the State relies on Moser v. State, supra. In
Moser, the Supreme Court applied the intentional tort excep-
tion to bar a negligence claim brought by the estate of a man
who was fatally assaulted by a cellmate while housed in a state
prison facility. The estate alleged the State had negligently
“double bunked” the two inmates and had failed to protect the
decedent from a foreseeable assault. Id. at 21, 948 N.W.2d at
197. The district court dismissed the suit, finding the State was
immune under the STCA’s discretionary function exception.
On appeal, the Supreme Court affirmed the dismissal, but on
different sovereign immunity grounds. It concluded the negli-
gence claim arose out of an assault and fell squarely within the
STCA’s exception for “[a]ny claim arising out of assault [or]
battery . . . .” See § 81-8,219(4).
[6] In its analysis, the Moser court discussed previous cases
where it had addressed the meaning and scope of the inten-
tional tort exception to the STCA, as well as of the Political
Subdivisions Tort Claims Act (PSTCA), and concluded that
a broad definition of “arising out of an assault or battery” is
consistent with the plain language of that phrase, which sug-
gests that if a claim under the STCA would not exist without
an assault or battery, it arises out of that assault or battery.
The Supreme Court stated that although the estate’s complaint
plainly alleged a negligence cause of action, the estate alleged
in the complaint that decedent was assaulted by his cellmate.
The Supreme Court concluded: “A reading of the complaint
makes it clear that all of [the estate’s] allegations, includ-
ing [the] claims of negligence in the decision to double bunk
[decedent and the other inmate], flow from this assault.” Moser
v. State, 307 Neb. at 31, 948 N.W.2d at 203-04. Accordingly,
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PIEPER v. STATE
Cite as 29 Neb. App. 912it held that the allegations arose out of an intentional tort for
purposes of the STCA and that the State had immunity from
suit on that basis.
[7] The Supreme Court recently decided a case similar to
Moser involving the intentional tort exception of the PSTCA.
See Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d
744 (2021). Because the language of the intentional tort excep-
tion is nearly identical under both the PSTCA and the STCA,
the cases construing the exception under the PSTCA are appli-
cable to cases under the STCA and vice versa. See Edwards v.
Douglas County, supra.In Edwards, the plaintiff sued Douglas County under the
PSTCA, alleging that the county negligently handled a series
of 911 emergency dispatch calls and that as a result, emer-
gency personnel did not arrive in time to prevent or stop
the plaintiff’s former boyfriend from sexually assaulting her.
The district court granted summary judgment in favor of the
county on the ground that the county did not owe the plaintiff
a legal duty.
On appeal, the county argued that the plaintiff’s claim was
barred by sovereign immunity because the PSTCA’s exemp-
tion for claims “arising out of assault” applied. The Supreme
Court noted:
We have said the [intentional tort] exemption applies
whenever an assault “is essential to the claim,” and it
bars claims against the government which “sound in neg-
ligence but stem from [an assault or] battery.” We have
also said the exemption encompasses claims that “would
not exist without an assault or battery,” and claims which
are “‘inextricably linked to [an assault or] battery.’” All
of these articulations speak to the same point: when a tort
claim against the government seeks to recover damages
for personal injury or death stemming from an assault,
the claim necessarily “arises out of assault” and is barred
by the intentional tort exemption under the PSTCA. The
plain language of the exemption and our principles of
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Nebraska Court of Appeals Advance Sheets
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PIEPER v. STATE
Cite as 29 Neb. App. 912strict construction require this result no matter how the
tort claim has been framed and regardless of the assail-
ant’s employment status.
Edwards v. Douglas County, 308 Neb. at 277-78, 953 N.W.2d
at 756. The Supreme Court concluded that the case presented
a classic example of a claim which sounds in negligence but
which stems from, and is inextricably linked to, an assault or
battery. It held, therefore, that the plaintiff’s negligence claim
against the county was barred by sovereign immunity under the
intentional tort exemption of the PSTCA.
In the instant case, Pieper set forth a claim of negligence
against the State, alleging the State was negligent in moving
him to the penitentiary for a violence reduction program know-
ing that threats had been made against him if he were trans-
ferred, thereby allowing him to be assaulted. Pieper’s claim
clearly arises out of an assault, no matter how he frames his
negligence claim against the State. The assault is essential to
Pieper’s claim; his claim would not exist without the assault.
Accordingly, Pieper’s claim falls within the STCA’s intentional
tort exception and is barred by sovereign immunity.
Because we conclude that the State had immunity from suit
under the intentional tort exception to the STCA, as set forth
in § 81-8,219(4), we need not address Pieper’s assignments of
error on appeal relating to immunity under the discretionary
function exception.
CONCLUSION
We conclude that the State has immunity from suit under the
intentional tort exception to the STCA. Accordingly, the dis-
trict court did not err in granting summary judgment in favor of
the State and dismissing Pieper’s complaint. The order of the
district court is affirmed.
Affirmed.
Bishop, Judge, concurring.
I concur with the majority that the district court’s deci-
sion should be affirmed. However, I would have affirmed by
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
PIEPER v. STATE
Cite as 29 Neb. App. 912addressing how the district court correctly concluded that the
discretionary function exception to the STCA barred Pieper’s
claim rather than affirming on a basis not raised before the
district court, namely, the intentional tort exception to the
waiver of sovereign immunity. Relying on Moser v. State,
307 Neb. 18, 948 N.W.2d 194 (2020), the majority considered
this alternative exception to the State’s waiver of immunity
even though it was not raised at the trial court level and is
raised for the first time on appeal. Further guided by Moser,
the majority concluded that “Pieper’s claim clearly arises out
of an assault, no matter how he frames his negligence claim
against the State,” the “assault is essential to Pieper’s claim,”
and “his claim would not exist without the assault.” Applying
this “but for” analysis, the majority concluded that “Pieper’s
claim falls within the STCA’s intentional tort exception and
is barred by sovereign immunity.” Given the precedent estab-
lished by the Nebraska Supreme Court in Moser, I cannot
fault the majority for taking this alternative path to reach
this conclusion.
However, because we could have affirmed the district court’s
decision on the only exception it considered, the discretionary
function exception, my preference would have been to affirm
on that basis rather than by applying the intentional tort excep-
tion to the facts of this case. My preference is driven by per-
suasive points made by Justice Miller-Lerman in her dissent
in Moser, as well as the Moser majority’s acknowledgment
that the assault in that case “was horrific” and that “[t]he
Legislature may wish to revisit the State’s sovereign immunity
in cases such as the one presented by this appeal,” since it is
the province of the Legislature to make such policy judgments.
307 Neb. at 31, 948 N.W.2d at 204.
It is difficult to imagine that the Legislature intended to
shield governmental actions which knowingly or negligently
place a person in harm’s way. While negligence may be hard to
prove in such circumstances, there should nevertheless be some
requirement of accountability. As the Moser dissent noted,
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PIEPER v. STATE
Cite as 29 Neb. App. 912“The U.S. Supreme Court has warned . . . that ‘unduly gener-
ous interpretations of the exceptions run the risk of defeat-
ing the central purpose of the statute,’ . . . which ‘waives the
Government’s immunity from suit . . . .’” 307 Neb. at 35, 948
N.W.2d at 206 (Miller-Lerman, J., dissenting). Further, “the ‘but
for’” approach adopted by the Moser majority “implies that the
‘intentional act somehow obliterates the legal significance of
any negligence that precedes or follows it.’” 307 Neb. at 42,
948 N.W.2d at 210 (Miller-Lerman, J., dissenting).
Accordingly, since there is room for disagreement regard-
ing the interpretation of the STCA’s intentional tort exception,
my preference would have been to limit our affirmance of the
district court’s decision to the discretionary function exception
that the district court actually considered.