Edwards v. Douglas County

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/26/2021 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259Julie Edwards, appellant, v. Douglas County,
a political subdivision of the State
of Nebraska, appellee.
___ N.W.2d ___
Filed January 29, 2021. No. S-19-1195.
1. Political Subdivisions Tort Claims Act. Whether the allegations made
by a plaintiff set forth claims which are precluded by exemptions under
the Political Subdivisions Tort Claims Act presents a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. 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.
4. Political Subdivisions Tort Claims Act: Immunity: Waiver. Through
the Political Subdivisions Tort Claims Act, the Legislature has allowed
a limited waiver of a political subdivision’s sovereign immunity with
respect to some, but not all, types of tort claims.
5. ____: ____: ____. Neb. Rev. Stat. § 13-910 (Reissue 2012) of the
Political Subdivisions Tort Claims Act expressly exempts certain types
of tort claims from the limited waiver of sovereign immunity. Stated
differently, the exemptions in § 13-910 describe the types of tort claims
for which a political subdivision has not consented to be sued.
6. Political Subdivisions Tort Claims Act: Dismissal and Nonsuit:
Immunity. When an exemption under the Political Subdivisions Tort
Claims Act applies, the political subdivision is immune from the
claim and the proper remedy is to dismiss it for lack of subject mat-
ter jurisdiction.
7. Political Subdivisions Tort Claims Act: Jurisdiction: Summary
Judgment. Because it is jurisdictional, courts should determine the
applicability of a statutory exemption under the Political Subdivisions
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259Tort Claims Act before considering nonjurisdictional grounds for sum-
mary judgment.
8. 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 words which are plain, direct, and
unambiguous.
9. Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
tion of sovereign immunity are strictly construed in favor of the sover-
eign and against the waiver.
10. Political Subdivisions Tort Claims Act: Immunity: Waiver. In order
to strictly construe the Political Subdivisions Tort Claims Act against a
waiver of sovereign immunity, courts apply a broad reading to any statu-
tory exemptions from a waiver of sovereign immunity.
11. Statutes: Immunity: Waiver. 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 reason-
able construction.
12. Political Subdivisions Tort Claims Act: Assault. No matter how a tort
claim against the government is framed, when it seeks to recover dam-
ages 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 Political Subdivisions Tort Claims Act.
13. Political Subdivisions Tort Claims Act: Pleadings: Assault. Plaintiffs
cannot circumvent the assault and battery exemption under the Political
Subdivisions Tort Claims Act through artful pleading.
14. Courts: Immunity: Waiver. No matter how compelling the facts of a
particular case may be, the judiciary does not have the power to waive
sovereign immunity.
15. Constitutional Law: Political Subdivisions Tort Claims Act: Courts:
Legislature. Neb. Const. art. II, § 1, precludes courts from exercis-
ing powers belonging to the Legislature, and decisions on whether
and how to limit the government’s potential tort liability belong to
the Legislature.
16. Courts: Legislature: Immunity. Courts must not, through judicial
construction, usurp the Legislature’s role in drawing the line between
governmental liability and immunity.
17. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort
Claims Act provides the exclusive means by which to maintain a tort
claim against a political subdivision or its employees.
18. Immunity: Waiver. The language of Neb. Rev. Stat. § 86-441 (Reissue
2014) is not a waiver of sovereign immunity.
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Gretchen L. McGill, Heather S. Voegele, and Brenda K.
Smith, of Dvorak Law Group, L.L.C., for appellant.
Jimmie L. Pinkham III and William E. Rooney III, Deputy
Douglas County Attorneys, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In 2016, Julie Edwards was held hostage and sexually
assaulted by a former boyfriend. In 2017, Edwards sued
Douglas County under the Political Subdivisions Tort Claims
Act (PSTCA) 1, alleging the county negligently handled a series
of 911 calls and, as a result, emergency personnel did not
arrive in time to prevent or stop the sexual assault. The district
court granted summary judgment in favor of Douglas County
and dismissed the action, finding the county owed no legal
duty to Edwards. We affirm the judgment of dismissal, but do
so on grounds of sovereign immunity.
BACKGROUND
Assault and 911 Calls
Edwards and Kenneth Clark were involved in a dating rela-
tionship and resided together in Omaha, Nebraska. Edwards
ended the relationship, and on February 12, 2016, she went to
Clark’s home to retrieve her belongings, accompanied by her
brothers John Edwards and Jason Edwards.
As Edwards and her brothers were leaving Clark’s home
with the final box, Clark fired several gunshots, striking both
John and Jason. Edwards tried to escape, but Clark dragged
her back into the home. Once inside, Edwards saw that Jason
1
Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259was on the floor bleeding and that John was moving toward
the basement. Edwards heard John saying he was hurt and
needed help. She later heard John’s cell phone ring from the
basement, and she could hear John speaking, but could not
make out his words.
Eventually Clark zip-tied Edwards’ hands and feet, con-
fiscated her cell phone, and held her hostage in the home.
Thereafter, Clark took Edwards to an upstairs bedroom where
he sexually assaulted her. Edwards estimates the sexual assault
began roughly 20 to 30 minutes after the shooting; the shooting
occurred shortly before 10 a.m.
It is undisputed that while Edwards was being held hos-
tage, John called the Douglas County 911 call center from
the basement of Clark’s home. The first call was placed at
approximately 10:12 a.m., and, over the course of several more
phone calls, John reported that he had been shot by his sister’s
­ex-boyfriend “Ken Clark” and needed help. John told 911
that he was inside Clark’s house, but was not able to provide
a street address. John reported that Clark was still inside the
house, that Clark had a gun, and that Edwards was being held
hostage in the house. The final call between John and the 911
call center was placed at approximately 10:33 a.m.
At approximately 10:54 a.m., law enforcement was dis-
patched to Clark’s residence. They arrived at approximately
10:58 a.m., after which Clark stopped assaulting Edwards
but continued to hold her hostage. Clark eventually released
Edwards sometime before 2 p.m. and then took his own
life. Both John and Jason died from injuries sustained in
the shooting.
Lawsuit
On October 2, 2017, after complying with the presuit notice
requirements under the PSTCA, Edwards filed a negligence
action against Douglas County, seeking to recover damages for
personal injury. Her complaint alleged that Douglas County
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259“had a duty to provide and maintain a 911 service system
utilizing reasonable care” and had breached that duty by mis-
handling the 911 calls with John. Edwards alleged that as a
result of the county’s negligence, emergency personnel did not
arrive at Clark’s home in a timely manner, which caused her to
“continu[e] to be held hostage and [to be] sexually assaulted
at gunpoint.”
In its operative amended answer, Douglas County specifi-
cally denied that it failed to use reasonable care in handling
the 911 calls. The county affirmatively alleged that Edwards’
complaint failed to state a claim of negligence against the
county, but it did not expressly allege that Douglas County was
immune from suit under the PSTCA.
Summary Judgment
After conducting discovery, both Douglas County and
Edwards moved for summary judgment. Douglas County
claimed it was entitled to summary judgment because, among
other things, it owed Edwards no legal duty to protect her from
the assault by Clark. Edwards argued she was entitled to partial
summary judgment in her favor on the issues of legal duty and
breach. A single hearing was held on the competing summary
judgment motions. Exhibits were offered by both parties and
received without objection.
Before the district court, the parties primarily focused their
arguments on questions of legal duty. Douglas County argued
it had no duty to protect Edwards from the assault by Clark.
Edwards disagreed, arguing that a legal duty arose under
Nebraska’s Emergency Telephone Communications Systems
Act (ETCSA). 2 Edwards argued, summarized, that the ETCSA
authorized Douglas County to provide 911 services and
imposed a statutory duty of reasonable care in contracting for
and providing such services.
2
Neb. Rev. Stat. §§ 86-420 to 86-441.01 (Reissue 2014).
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259In an order entered November 21, 2019, the district court
rejected Edwards’ contention that the ETCSA imposed a
legal duty on the county. After analyzing and rejecting other
legal theories under which the county may have had a duty to
protect Edwards from the assault by Clark, the court sustained
the county’s motion for summary judgment and overruled
Edwards’ motion for partial summary judgment. Edwards filed
a timely notice of appeal, which we moved to our docket on
our own motion.
ASSIGNMENTS OF ERROR
Edwards assigns eight errors, which we consolidate and
restate into two: (1) The district court erred in granting Douglas
County’s motion for summary judgment on the ground the
county did not owe Edwards a legal duty, and (2) the district
court erred in overruling Edwards’ motion for partial sum-
mary judgment.
STANDARD OF REVIEW
[1] Whether the allegations made by a plaintiff set forth
claims which are precluded by exemptions under the PSTCA
presents a question of law. 3
[2] When reviewing questions of law, an appellate court has
an obligation to resolve the questions independently of the con-
clusion reached by the trial court. 4
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 5
3
See, Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020); Rutledge v. City
of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019).
4
See Moser, supra note 3.
5
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259ANALYSIS
Subject Matter Jurisdiction
Under PSTCA
Shortly before the scheduled oral argument in this appeal,
Douglas County moved for summary dismissal or, in the alter-
native, summary affirmance, claiming we lack subject mat-
ter jurisdiction over Edwards’ claim under the PSTCA. The
county contends, summarized, that Edwards’ claim is barred
by sovereign immunity because the PSTCA’s exemption for
claims “arising out of assault” 6 applies. In support of its argu-
ment, the county relies on this court’s recent opinion in Moser
v. State, 7 which was released after the initial briefing in this
case was complete. Edwards filed a brief in opposition to the
county’s motion, and we deferred ruling on the motion until
plenary submission.
Because the county’s motion presents a question of sub-
ject matter jurisdiction under the PSTCA, we address it as
a threshold matter. 8 No party raised the applicability of any
exemption under the PSTCA while this case was before the
district court, but whether an exemption applies presents a
jurisdictional issue which may be raised for the first time on
appeal. 9 Simply put, a political subdivision’s sovereign immu-
nity from suit is a jurisdictional issue that an appellate court
cannot ignore. 10
6
§ 13-910(7).
7
Moser, supra note 3.
8
See Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d
84 (2020) (explaining because question is jurisdictional, courts should
determine applicability of statutory exemptions under PSTCA before
considering nonjurisdictional grounds for summary judgment).
9
Moser, supra note 3. See, also, Amend v. Nebraska Pub. Serv. Comm., 298
Neb. 617, 905 N.W.2d 551 (2018).
10
See Moser, supra note 3. Accord Davis v. State, 297 Neb. 955, 902 N.W.2d
165 (2017).
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259The sovereign immunity of the State and its political subdi-
visions is not a matter of judicial fiat; it is constitutional. Neb.
Const. art. V, § 22, provides: “The state may sue and be sued,
and the Legislature shall provide by law in what manner and in
what courts suits shall be brought.” Earlier versions of our state
constitution did likewise. 11 We have long held that this consti-
tutional provision is not self-executing and that no suit may be
maintained against the State or its political subdivisions unless
the Legislature, by law, has so provided. 12 The Legislature
has enacted the PSTCA to govern tort claims against politi-
cal subdivisions.
[4] Under the PSTCA, a political subdivision has no liability
for the torts of its officers, agents, or employees, “except to
the extent, and only to the extent, provided by the [PSTCA].” 13
In suits brought under the PSTCA, a political subdivision is
“liable in the same manner and to the same extent as a private
individual under like circumstances,” except “as otherwise pro-
vided in the [PSTCA].” 14 Through the PSTCA, the Legislature
has allowed a limited waiver of a political subdivision’s sov-
ereign immunity with respect to some, but not all, types of
tort claims. 15
[5-7] Section 13-910 of the PSTCA expressly exempts cer-
tain tort claims from the limited waiver of sovereign immu-
nity. Stated differently, the exemptions in § 13-910 describe
the types of tort claims for which a political subdivision
has not consented to be sued. When an exemption under the
11
See State v. Mortensen, 69 Neb. 376, 95 N.W. 831 (1903).
12
See, e.g., Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304(2019); McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009),
abrogated in part, Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d
264 (2010), overruled, Davis, supra note 10.
13
§ 13-902. See Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508(2011).
14
§ 13-908.
15
See Rutledge, supra note 3.
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259PSTCA applies, the political subdivision is immune from the
claim and the proper remedy is to dismiss it for lack of subject
matter jurisdiction. 16 Because it is jurisdictional, courts should
determine the applicability of a statutory exemption under the
PSTCA before considering nonjurisdictional grounds for sum-
mary judgment. 17
Immunity for Claims Arising
Out of Assault
As pertinent here, § 13-910(7) of the PSTCA exempts from
the waiver of sovereign immunity “[a]ny claim arising out
of assault, battery, false arrest, false imprisonment, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.” We have some-
times referred to this exemption broadly as the “intentional
tort” exemption. 18 And because the language of the intentional
tort exemption is nearly identical under both § 13-910(7) of
the PSTCA and Neb. Rev. Stat. § 81-8,219(4) (Reissue 2014)
the State Tort Claims Act (STCA), 19 we have applied our cases
construing the exemption under the PSTCA to cases under the
STCA, and vice versa. 20
[8-11] When construing any statutory exemption under the
PSTCA or the STCA, courts apply settled propositions of
statutory construction. 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 words which
are plain, direct, and unambiguous. 21 Additionally, Nebraska
16
See Lambert, supra note 8.
17
Id.18
See, e.g., Moser, supra note 3; Rutledge, supra note 3; Britton, supra
note 13.
19
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).
20
See, Moser, supra note 3; Amend, supra note 9.
21
Moser, supra note 3.
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259courts have long followed the rule that statutes purporting to
waive the protection of sovereign immunity are to be strictly
construed in favor of the sovereign and against waiver. 22 As a
corollary to this canon of construction, and in order to strictly
construe the PSTCA against a waiver of sovereign immunity,
we apply a broad reading to statutory exemptions from a
waiver of sovereign immunity. 23 A waiver of sovereign immu-
nity 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. 24
Over the past 15 years, this court has issued five published
opinions addressing the meaning and scope of the phrase
“[a]ny claim arising out of assault” as used in the intentional
tort exemptions of the PSTCA and the STCA. 25 When analyz-
ing this language, most of our cases have given the phrase
its plain meaning and faithfully applied principles of strict
construction to avoid judicially expanding the Legislature’s
22
See, e.g., id.; Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020); Jill
B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017); Geddes v.
York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Hoiengs v. County
of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994); Wiseman v. Keller, 218
Neb. 717, 358 N.W.2d 768 (1984); Gentry v. State, 174 Neb. 515, 118
N.W.2d 643 (1962); Rumbel v. Ress, 166 Neb. 839, 91 N.W.2d 36 (1958),
modified on denial of rehearing 167 Neb. 359, 92 N.W.2d 904; Frye v.
Sibbitt, 145 Neb. 600, 17 N.W.2d 617 (1945); Anstine v. State, 137 Neb.
148, 288 N.W. 525 (1939), overruled on other grounds, Beatrice Manor v.
Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).
23
See, Brown, supra note 22; Reiber v. County of Gage, 303 Neb. 325, 928
N.W.2d 916 (2019); Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d
561 (2015).
24
Moser, supra note 3; Jill B. & Travis B., supra note 22.
25
See, e.g., Moser, supra note 3; Rutledge, supra note 3; Britton, supra note
13; Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007),
overruled, Moser, supra note 3; Johnson v. State, 270 Neb. 316, 700
N.W.2d 620 (2005).
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259limited waiver of sovereign immunity. 26 Some of our cases
have considered U.S. Supreme Court opinions construing
the Federal Tort Claims Act (FTCA), which also excludes
certain intentional torts, including assault, from the federal
government’s waiver of sovereign immunity. 27 But we have
not always agreed with the reasoning of the U.S. Supreme
Court majority, 28 in part because that Court does not always
adhere to the same strict construction principles this court fol-
lows when construing statutes purporting to waive sovereign
immunity. 29 And of course, neither the reasoning nor the hold-
ings of federal cases construing the FTCA have any binding
precedential effect on this court’s construction of Nebraska’s
statutory language.
26
See, Moser, supra note 3 (applying strict construction principles to
determine scope of assault and battery exemption); Rutledge, supra note
3 (same); Britton, supra note 13 (same); Johnson, supra note 25 (same).
Compare Doe, supra note 25 (making no reference to strict construction
principles when determining scope of assault and battery exemption).
27
See 28 U.S.C. § 2680(h) (2018).
28
See, e.g. Moser, supra note 3 (rejecting reasoning of U.S. Supreme Court
majority and agreeing instead with reasoning of dissent in Sheridan v.
United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988));
Johnson, supra note 25 (agreeing with reasoning of Sheridan concurrence
rather than majority).
29
See, Moser, supra note 3 (observing U.S. Supreme Court does not
uniformly apply strict construction principles to waivers of sovereign
immunity under FTCA); Davis, supra note 10, 297 Neb. at 974, 902
N.W.2d at 183 (observing U.S. Supreme Court “has refused to hold that
the FTCA exceptions are subject to the general rule that a waiver of
sovereign immunity will be strictly construed in favor of the sovereign”).
See, also, 14 Charles Alan Wright et al., Federal Practice and Procedure
§ 3658.2 at 688 (4th ed. 2015) (observing that when interpreting scope
of exceptions to waivers of sovereign immunity under FTCA, the U.S.
Supreme Court has said rules of strict construction are not implicated
and “‘unhelpful’” to inquiry); Gregory C. Sisk, Twilight for the Strict
Construction of Waivers of Federal Sovereign Immunity, 92 N.C. L. Rev.
1245 (2014) (same).
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259Before addressing the arguments advanced by the parties
in this appeal, it is helpful to review our previous opin-
ions construing the scope and meaning of the intentional tort
exemption. In the 2005 case of Johnson v. State, 30 a prisoner
brought a tort action against the State, seeking to recover
damages for personal injury after being sexually assaulted
by a prison guard. The trial court found that her claim arose
out of an assault and was barred by sovereign immunity. On
appeal, the prisoner argued that her claim did not arise out of
assault, but instead arose from independent acts of governmen-
tal negligence that allowed the assault to occur, including the
State’s negligent hiring and supervision of the prison guard.
Applying principles of strict construction, Johnson held that
even though the claim had been framed as the negligent failure
to prevent an assault, it fell squarely within the intentional tort
exemption. Johnson agreed with Justice Kennedy’s concur-
rence in the U.S. Supreme Court case of Sheridan v. United
States, 31 quoting:
“If the allegation is that the Government was negli-
gent in the supervision or selection of the employee and
that the intentional tort occurred as a result, the inten-
tional tort exception . . . bars the claim. Otherwise, liti-
gants could avoid the substance of the exception because
it is likely that many, if not all, intentional torts of
Government employees plausibly could be ascribed to the
negligence of the tortfeasor’s supervisors. To allow such
claims would frustrate the purposes of the [intentional
tort] exception.” 32
Johnson also quoted the reasoning of four U.S. Supreme Court
justices in United States v. Shearer, 33 stating that a plaintiff
30
Johnson, supra note 25.
31
Sheridan, supra note 28 (Kennedy, J., concurring).
32
Johnson, supra note 25, 270 Neb. at 322, 700 N.W.2d at 625 (quoting
Sheridan, supra note 28 (Kennedy, J., concurring)).
33
United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38(1985).
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259“‘cannot avoid the reach of [the intentional tort exemption] by
framing her complaint in terms of negligent failure to prevent
the assault and battery.’” 34
Two years after deciding Johnson, we again considered the
scope and application of the intentional tort exemption. In Doe
v. Omaha Pub. Sch. Dist., 35 a student sued the school district
for personal injury after being sexually assaulted by a class-
mate on school grounds. The trial court found the claim arose
out of an assault and was barred by the PSTCA’s intentional
tort exemption. On appeal, the student argued the claim did not
arise out of assault, but instead arose from the school district’s
negligent failure to protect her from a foreseeable act of sexual
violence by a classmate. We identified the dispositive issue as
“determin[ing] the breadth of the phrase ‘[a]ny claim arising
out of assault’ as it is used in § 13-910(7).” 36 But in addressing
this issue, Doe neither referenced nor applied traditional prin-
ciples of strict construction.
Our opinion in Doe acknowledged that if the student had
been sexually assaulted by an employee of the school district,
her claim would be barred by sovereign immunity under the
holding and reasoning in Johnson. But because the student
had been sexually assaulted by a classmate, rather than a gov-
ernmental employee, Doe implied that different reasoning was
appropriate. While Johnson had rejected the reasoning of the
Sheridan majority in favor of the concurrence, Doe expressly
relied on the majority’s reasoning that “the negligence of other
Government employees who allowed a foreseeable assault and
battery to occur may furnish a basis for Government liabil-
ity that is entirely independent of [the assailant’s] employ-
ment status.” 37 Doe described this reasoning as persuasive
and held that the student’s claim was not barred by sovereign
34
Johnson, supra note 25, 270 Neb. at 320, 700 N.W.2d at 624.
35
Doe, supra note 25.
36
Id. at 86, 727 N.W.2d at 455.
37
See Sheridan, supra note 28, 487 U.S. at 401.
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Cite as 308 Neb. 259immunity because it did “not arise from an assault, but, rather,
from an alleged negligent failure to protect a student from a
foreseeable act of violence.” 38
We next considered the scope of the intentional tort exemp-
tion in 2009, when deciding McKenna v. Julian. 39 There,
the plaintiff sued the city and a city police officer, seek-
ing to recover damages based on allegations that the officer
had assaulted him during an improper arrest. The trial court
dismissed the lawsuit, finding, among other things, that the
claims were barred by the PSTCA’s intentional tort exemp-
tion. On appeal, the plaintiff argued his claims did not arise
from assault, battery, or false arrest, but instead arose from
the officer’s negligent use of excessive force. We rejected this
argument. Applying strict construction principles and our rea-
soning in Johnson, we found that even when framed as a claim
of excessive force, the arrestee’s claim was barred as a matter
of law by the intentional tort exemption.
In the 2011 case of Britton v. City of Crawford, 40 police
officers shot and killed a 16-year-old burglary suspect dur-
ing a standoff. The personal representative for the suspect’s
estate brought a wrongful death and survival action against
the city under the PSTCA, alleging police were negligent
in the tactics used when confronting the suspect. The trial
court dismissed the action, finding the claims were barred
by the assault and battery exemption under § 13-910(7) of
the PSTCA. We affirmed, explaining that the intentional tort
exemption “‘“does not merely bar claims for assault or bat-
tery; in sweeping language it excludes any claim arising out
of assault or battery.”’” 41 Britton applied principles of strict
construction and held the language of the exemption includes
38
Doe, supra note 25, 273 Neb. at 86, 727 N.W.2d at 456.
39
McKenna, supra note 12.
40
Britton, supra note 13.
41
Id. at 384-85, 803 N.W.2d at 517 (emphasis in original).
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Cite as 308 Neb. 259claims that “‘“sound in negligence but stem from [an assault
or] battery,”’” 42 reasoning:
While other factors may have contributed to the situa­
tion which resulted in [the suspect’s] death, but for 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 suspect’s] death and, conse-
quently, the basis of [the personal representative’s] claim.
Even if it is possible that negligence [of the officers] was
a contributing factor to [the suspect’s] death, the alleged
negligence was inextricably linked to a battery [and the
claim] is thus barred by the PSTCA. 43
We again considered the scope of the intentional tort exemp-
tion in the 2019 case of Rutledge v. City of Kimball. 44 There,
the plaintiff alleged she had been attacked and choked by a
city employee while visiting a city building. She sued the
city under the PSTCA, alleging it negligently failed to super-
vise its employee and failed to protect the public from the
employee despite knowledge of his violent propensities. The
district court granted the city’s motion to dismiss, finding the
claim was barred by the PSTCA exemption for claims arising
out of assault. On appeal, the plaintiff relied on our opinion
in Doe to argue that her claim did not arise out of an assault,
but instead arose from the city’s breach of an independent
duty to protect her from foreseeable acts of violence by its
­employee. 45 We found Doe was inapplicable because, among
other things, the assailant in Doe was not a governmental
employee. We instead applied our reasoning from Johnson and
principles of strict construction to conclude that the plaintiff
could not avoid the intentional tort exemption by reframing
42
Id. at 385, 803 N.W.2d at 517.
43
Id. at 386, 803 N.W.2d at 518.
44
Rutledge, supra note 3.
45
See id. See, also, Doe, supra note 25.
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Cite as 308 Neb. 259her claim as the negligent failure to prevent a foreseeable
assault by a governmental employee. 46 We reasoned:
While [the plaintiff’s] claim is characterized as one of
negligence, no claim would exist but for [the employee’s]
alleged battery. At oral argument, [the plaintiff] conceded
that there never would have been a lawsuit had she not
been assaulted. Thus, regardless of how the claim is
pled, [the plaintiff’s] claim is inextricably linked to a
battery. Accordingly, the alleged negligence falls within
the [assault and battery] exception to the PSTCA and the
[c]ity has not waived its sovereign immunity. 47
The concurring opinion in Rutledge agreed that the plain-
tiff’s claim was barred by the intentional tort exemption, but
questioned whether Doe had been correctly decided, noting
that its reasoning was contrary to principles of strict con-
struction and its holding was inconsistent with the rest of
our cases construing the plain language of the intentional
tort exemption. 48
Our most recent opportunity to consider the scope of the
intentional tort exemption was the 2020 case of Moser. 49 In
Moser, we applied the intentional tort exemption to bar a neg-
ligence claim brought by the estate of a man who was fatally
assaulted by a cellmate while housed in a state prison facility.
The decedent’s estate alleged the State had negligently double-
bunked the two inmates and had failed to protect the decedent
from a foreseeable assault. The district court dismissed the
suit, finding the State was immune under the STCA’s discre-
tionary function exemption. 50 We affirmed the dismissal, but
46
See Rutledge, supra note 3. See, also, Johnson, supra note 25.
47
Rutledge, supra note 3, 304 Neb. at 602, 935 N.W.2d at 753.
48
See Rutledge, supra note 3 (Papik, J., concurring). See, also, Doe, supra
note 25.
49
Moser, supra note 3.
50
See § 81-8,219(1).
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Cite as 308 Neb. 259on different sovereign immunity grounds. Moser concluded
the negligence claim arose out of an assault and fell squarely
within the STCA’s exemption for “[a]ny claim arising out
of assault.” 51
Moser reexamined our reasoning in Doe and expressly over-
ruled it, describing Doe as an “outlier” 52 and concluding it was
inconsistent with the rest of our cases construing and applying
the intentional tort exemption. Moser correctly observed that
neither Doe, nor the majority opinion in Sheridan on which
it relied, purported to apply principles of strict construction
when determining the scope of the intentional tort exemption. 53
Because the reasoning in Doe could not be reconciled with
the rest of our cases and was contrary to the settled principle
that courts must apply a broad reading to statutory exemptions
in order to strictly construe waivers of sovereign immunity, 54
Moser concluded that Doe had been wrongly decided. The rea-
soning in Doe had been premised on the same semantic recast-
ing we had consistently rejected in cases where the assault was
committed by a governmental actor, 55 and Moser emphasized
that when the statutory text is given its plain meaning, there is
no principled reason why the scope and meaning of the phrase
“arising out of assault” should be construed differently depend-
ing on whether the assailant was a governmental or a nongov-
ernmental actor.
51
§ 81-8,219(4).
52
Moser, supra note 3, 307 Neb. at 28, 948 N.W.2d at 202. See, also, Doe,
supra note 25.
53
See Moser, supra note 3. See, also, Sheridan, supra note 28.
54
See, Moser, supra note 3; Brown, supra note 22; Jill B. & Travis B., supra
note 22; Geddes, supra note 22; Hoiengs, supra note 22; Wiseman, supra
note 22; Gentry, supra note 22; Rumbel, supra note 22; Frye, supra note
22; Anstine, supra note 22.
55
See, e.g. Moser, supra note 3; Rutledge, supra note 3; Britton, supra
note 13.
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Cite as 308 Neb. 259We pause here to note that in Moser, and again in this
case, our dissenting colleague suggests that the exemption in
§ 13-910(7) for “[a]ny claim arising out of assault” should
be construed to apply only to claims that arise out of assaults
“committed by governmental employees.” But the qualifying
language urged by the dissent appears nowhere in § 13-910(7).
And given that other PSTCA exemptions expressly refer-
ence claims based on the acts “of an employee” 56 or “by an
employee,” 57 the omission of such qualifying language from
§ 13-910(7) cannot be ignored. Nor do we find persuasive the
dissent’s suggestion that the PSTCA’s definitions of a “[t]ort
claim” 58 or “[e]mployee” 59 make it necessary to read into the
plain language of § 13-910(7) the qualifying phrase “commit-
ted by governmental employees.” It is not within the province
of the courts to read a meaning into a statute that is not there
or to read anything direct and plain out of a statute. 60 The
language used by the Legislature in § 13-910(7) is strikingly
broad; without qualification or limitation, it exempts from
the waiver of sovereign immunity “[a]ny claim arising out of
56
§ 13-910(1) (referring to “[a]ny claim based upon an act or omission of an
employee of a political subdivision”). See, also, § 13-901(2) (referring to
“[a]ny claim based upon the exercise or performance of . . . a discretionary
function or duty on the part of the political subdivision or an employee of
the political subdivision”).
57
§ 13-910(4) (“[n]othing in this subdivision shall be construed to limit a
political subdivision’s liability for any claim based upon the negligent
execution by an employee of the political subdivision in the issuance of
a certificate of title”). See, also, § 13-910(8) (referring to “[a]ny claim
by an employee of the political subdivision which is covered by the
Nebraska Workers’ Compensation Act”); § 13-910(10) (“[n]othing in this
subdivision shall be construed to limit a political subdivision’s liability for
any claim arising out of the operation of a motor vehicle by an employee
of the political subdivision”).
58
See § 13-903(4).
59
See § 13-903(3).
60
State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231(2020).
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Cite as 308 Neb. 259assault.” We respectfully disagree with the dissent’s sugges-
tion that this language can reasonably be construed to exempt
only claims arising out of assaults committed by governmental
employees. And even if we could find plausible textual support
for the alternative construction urged by the dissent, it would
not satisfy our long-established rule that a waiver of sovereign
immunity is to be 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. 61
There is no basis in the plain text of § 13-910(7), or in our
binding precedent construing that statute, for the alternate
interpretation urged by the dissent.
[12] Instead, with the exception of Doe, our cases have
construed the intentional tort exemption to give it the full
breadth demanded by its plain text and our canons of con-
struction. We have said the exemption applies whenever an
assault “is essential to the claim,” 62 and it bars claims against
the government which “sound in negligence but stem from
[an assault or] battery.” 63 We have also said the exemption
encompasses claims that “would not exist without an assault
or battery,” 64 and claims which are “‘inextricably linked to [an
assault or] battery.’” 65 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
61
See, e.g., Moser, supra note 3; Jill B. & Travis B., supra note 22; Lamb v.
Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 876 N.W.2d 388(2016); Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb.
48, 825 N.W.2d 204 (2013); Britton, supra note 13; King v. State, 260
Neb. 14, 614 N.W.2d 341 (2000); Logan v. Department of Corr. Servs.,
254 Neb. 646, 578 N.W.2d 44 (1998); Wiseman, supra note 22.
62
Moser, supra note 3, 307 Neb. at 29, 948 N.W.2d at 202.
63
Britton, supra note 13, 282 Neb. at 385, 803 N.W.2d at 517.
64
Moser, supra note 3, 307 Neb. at 29, 948 N.W.2d at 202.
65
Id. at 27, 948 N.W.2d at 201 (quoting Britton, supra note 13).
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Cite as 308 Neb. 259is barred by the intentional tort exemption under the PSTCA.
The plain language of the exemption and our principles of
strict construction require this result no matter how the tort
claim has been framed 66 and regardless of the assailant’s
employment status. 67
Edwards’ Claim Arises
Out of Assault
On appeal, Douglas County contends that no matter how
Edwards frames her negligence claim against the county, it
“aris[es] out of assault” 68 and thus falls squarely within the
PSTCA’s intentional tort exemption. Edwards concedes that
her damages stem from the assault by Clark, but she argues
that her claim does not arise out of the assault, and instead is
based on “a completely independent incident . . . the delay of
law enforcement arriving to the scene of the emergency caused
by Douglas County’s failure to exercise reasonable care in han-
dling [John’s 911 calls].” 69
For the same reasons we concluded the negligence claims in
Johnson, McKenna, Britton, Rutledge, and Moser arose out of
assault and were barred by sovereign immunity, we must like-
wise conclude that Edwards’ negligence claim against Douglas
County arises out of an assault and is barred by § 13-910(7).
Edwards alleges that the county negligently mishandled the
911 calls with John and that, as a result, emergency personnel
did not arrive in a timely manner and Edwards “continue[d]
to be held hostage [and was] sexually assaulted at gunpoint”
66
See Moser, supra note 3; Rutledge, supra note 3; Britton, supra note 13.
67
See Moser, supra note 3. Accord Sheridan, supra note 28, 487 U.S. at 411(O’Connor, J. dissenting; Rehnquist, C.J., and Scalia, J., join) (observing
that plain language of FTCA intentional tort exception applies “whether
the person committing the intentional tort is a Government employee,
a nonemployee, or a Government employee acting outside the scope of
his office”).
68
See § 13-910(7).
69
Memorandum brief for appellant in opposition to appellee’s motion for
summary dismissal or affirmance at 3.
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Cite as 308 Neb. 259by Clark. At oral argument before this court, Edwards’ coun-
sel conceded that all of Edwards’ claimed damages stemmed
from the assault by Clark. This presents a classic example of
a claim which sounds in negligence but which stems from,
and is inextricably linked to, an assault or battery. Edwards is
alleging that, because of the government’s negligent handling
of the 911 calls, she was injured by an intentional assault. And
while it is conceivable there could be circumstances where the
claim is so attenuated from an assault that it cannot fairly be
characterized as arising out of the assault, we do not have such
a claim before us today.
[13] We understand Edwards’ briefing to suggest that her
negligence claim is factually different from those considered
in Johnson, McKenna, Britton, Rutledge, and Moser, because
those plaintiffs alleged the government was negligent in failing
to protect against a foreseeable assault, and Edwards is alleg-
ing the government’s negligence delayed its response to an
assault in progress. This argument relies on the sort of seman-
tic recasting of events this court has consistently rejected. 70
Plaintiffs cannot circumvent the assault and battery exemp-
tion through “artful pleading.” 71 Because the Legislature has
broadly exempted from the PSTCA “[a]ny claim arising out
of assault,” 72 it is immaterial whether Edwards has alleged the
assault occurred because the government negligently failed to
prevent it or because the government negligently delayed in
responding to it. No matter how it is framed, Edwards’ claim of
governmental negligence arises out of assault and is barred by
sovereign immunity under § 13-910(7) of the PSTCA.
Nothing in this opinion should be understood to dimin-
ish the seriousness of the assault experienced by Edwards
or to excuse any mishandling of the 911 calls for help.
But the Legislature has expressly preserved the government’s
sovereign immunity for negligence claims that arise out of
70
See, Moser, supra note 3; Britton, supra note 13.
71
Jill B. & Travis B., supra note 22, 297 Neb. at 93, 899 N.W.2d at 265.
72
§ 13-910(7).
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Cite as 308 Neb. 259assaults, and Edwards has brought such a claim. The provi-
sions of § 13-910(7) are plain and unambiguous, and this
court must apply those provisions as written. 73 The sweeping
language of the exemption simply allows no other reasonable
construction. 74
[14] The dissent asks important public policy questions
about the impact of immunizing the government from a claim
that it failed to respond quickly enough to stop a violent assault
against an innocent victim. Important public policy questions
are also presented by calls to waive immunity and expand the
types of claims that can result in money judgments against a
political subdivision and impact the public fisc. But balanc-
ing these public policy concerns is not a matter the Nebraska
Constitution leaves to the courts. 75 No matter how compelling
the facts of a particular case may be, the judiciary does not
have the power to waive sovereign immunity. 76
[15,16] Neb. Const. art. II, § 1, precludes us from exer-
cising powers belonging to the Legislature, and decisions
on whether and how to limit the government’s potential tort
liability belong to the Legislature. 77 Courts must not, through
judicial construction, usurp the Legislature’s role in draw-
ing the line between governmental liability and immunity. 78
Prior courts have strayed from this foundational principle. 79
This court will not.
73
See Glasson v. Board of Equal. of City of Omaha, 302 Neb. 869, 925
N.W.2d 672 (2019).
74
See, Moser, supra note 3; Jill B. & Travis B., supra note 22.
75
See Neb. Const. art. V, § 22.
76
See id. See, also, McKenna, supra note 12.
77
See Neb. Const. art. V, § 22.
78
See Jill B. & Travis B., supra note 22.
79
See Brown v. City of Omaha, 183 Neb. 430, 434, 160 N.W.2d 805, 808
(1968) (plurality holds that while Legislature might have “the ultimate
word,” courts also have power to abrogate sovereign immunity from tort
liability arising out of ownership, use, and operation of motor vehicles).
See, also, Doe, supra note 25.
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Cite as 308 Neb. 259We therefore leave to the Legislature, after careful study
and full debate of the social and economic consequences, the
public policy decision of whether to expand the government’s
tort liability for claims arising out of assault. For the sake of
completeness, we note that because Edwards’ claim against
the county is plainly barred by the intentional tort exemption,
we express no opinion on whether it is otherwise the type of
claim for which a private person would be liable in tort under
Nebraska law. 80
No Waiver of Sovereign Immunity
Under § 86-441
In opposing the county’s motion for summary affirmance on
grounds of sovereign immunity, Edwards argues that even if
her claim is barred by the PSTCA’s intentional tort exemption,
we should consider whether the ETCSA operates as a waiver of
sovereign immunity “separate and apart from that provided for
in [the PSTCA].” 81 Edwards refers this court to § 86-441 of the
ETCSA, which provides:
In contracting for such 911 service and in providing such
911 service, except for failure to use reasonable care or
for intentional acts, each governing body, public safety
agency, and service supplier and their employees and
agents shall be immune from liability or the payment for
any damages in the performance of installing, maintain-
ing, or providing 911 service.
80
See § 13-903(4) (“[t]ort claim shall mean any claim against a political
subdivision for money only on account of . . . personal injury or death,
caused by the negligent or wrongful act or omission of any employee of
the political subdivision . . . under circumstances in which the political
subdivision, if a private person, would be liable to the claimant for such
damage”); § 13-908 (“in all suits brought under [the PSTCA] the political
subdivision shall be liable in the same manner and to the same extent as a
private individual under like circumstances”).
81
Memorandum brief for appellant in opposition to appellee’s motion for
summary dismissal or affirmance at 4.
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Cite as 308 Neb. 259Before the district court, Edwards argued this statutory provi-
sion established Douglas County’s legal duty. But on appeal,
we understand Edwards to contend that § 86-441 should
be construed as a waiver of sovereign immunity for claims
alleging negligence against any provider of 911 services.
We disagree.
The Legislature has declared:
[N]o political subdivision of the State of Nebraska shall
be liable for the torts of its officers, agents, or employees,
and that no suit shall be maintained against such political
subdivision or its officers, agents, or employees on any
tort claim except to the extent, and only to the extent,
provided by the [PSTCA]. 82
[17] As such, the PSTCA provides “‘the exclusive means’” 83
by which to maintain a tort claim against a political subdivi-
sion and its employees. The PSTCA does expressly reference
and incorporate some statutes outside the PSTCA, 84 but the
PSTCA makes no reference to § 86-441 or to any other statute
contained in the ETCSA. Similarly, the ETCSA makes no ref-
erence whatsoever to the PSTCA. 85
[18] Moreover, we see nothing in the express language of
§ 86-441 which indicates the Legislature intended to waive sov-
ereign immunity for claims against political subdivisions. The
82
§ 13-902.
83
Connelly v. City of Omaha, 284 Neb. 131, 151, 816 N.W.2d 742, 760
(2012). Accord Geddes, supra note 22.
84
See, e.g., §§ 13-903 to 13-907; § 13-909; § 13-910; §§ 13-912 to 13-915;
§ 13-917; § 13-918; §§ 13-923 to 13-925; § 13-928.
85
Compare, e.g., Neb. Rev. Stat. § 13-2520 (Reissue 2012) (joint public
agency may be sued subject to PSTCA); Neb. Rev. Stat. § 47-1005 (Supp.
2019) (tort claims for violation of Healthy Pregnancies for Incarcerated
Women Act governed by PSTCA); Neb. Rev. Stat. § 71-15,168(1) (Reissue
2018) (tort claims against housing agency governed by PSTCA); Neb.
Rev. Stat. § 76-2328 (Reissue 2018) (claims under One-Call Notification
System Act subject to PSTCA).
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Cite as 308 Neb. 259plain text of the statute provides “immun[ity] from liability” 86
to governing bodies, public safety agencies, and service sup-
pliers and their employees and agents, “except for failure to
use reasonable care or for intentional acts.” 87 This language
appears to except both negligent and intentional acts, and it is
thus unclear what sort of immunity the Legislature intended
to confer. But we express no opinion in that regard, because
whatever the proper interpretation may be of the language in
§ 86-441, it is not a waiver of sovereign immunity.
As stated, statutes purporting to waive the protection of
sovereign immunity are strictly construed in favor of the sov-
ereign and against the waiver. 88 A waiver of sovereign immu-
nity 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. 89 If there
is any doubt as to whether immunity has been waived, the
sovereign must prevail. 90 Applying these settled principles,
we do not construe § 86-441 as an express waiver of sover-
eign immunity.
CONCLUSION
The Legislature has broadly exempted from the PSTCA
“[a]ny claim arising out of assault,” 91 and Edwards’ negli-
gence claim against Douglas County falls squarely within this
exemption. When an exemption under the PSTCA applies,
the political subdivision is immune from suit, and the proper
remedy is to dismiss the action for lack of subject matter
jurisdiction. 92
86
§ 86-441.
87
Id.
88
Moser, supra note 3.
89
Id.90
See Jill B. & Travis B., supra note 22.
91
§ 13-910(7).
92
Lambert, supra note 8.
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Cite as 308 Neb. 259Although the district court entered a judgment of dismissal
on different grounds, we affirm that dismissal on grounds
of sovereign immunity. 93 The county’s motion for summary
affirm­ance or dismissal is overruled as moot.
Affirmed.
93
See Davis, supra note 10 (providing that appellate court may affirm lower
court’s ruling that reaches correct result, albeit on different reasoning).
Miller-Lerman, J., dissenting.
For all the reasons explained in my dissent in Moser v. State,
307 Neb. 18, 948 N.W.2d 194 (2020), I again respectfully
disagree with the majority’s conclusion that, based on sover-
eign immunity, the governmental entity cannot be sued for its
alleged antecedent negligence if there is an assault by anyone
anywhere in the picture.
In this case, Julie Edwards’ brother John Edwards called
the 911 emergency dispatch service at 10:12:17 a.m., after
being shot by Kenneth Clark. As John lay dying in the base-
ment, he informed the 911 operator that he had been shot in
the stomach. Thereafter, in a series of seven calls, the 911
operator variously asked John to move around and to provide
an exact address for the house, and when John repeated that
he had been shot, the 911 operator said in a call at 10:33:58,
“[y]eah, I heard that.” At this point John dialed 911 a long
time ago. As 911 dawdled, Clark took Edwards upstairs and
­sex­ually assaulted her at gunpoint. Eventually, law enforce-
ment were dispatched at 10:54:06 a.m. and arrived at approxi-
mately 10:58:41 a.m.
In her complaint, Edwards alleged that Douglas County
(County) had been negligent by virtue of the actions of its
911 operator, who failed to use reasonable care in handling
the emergency calls such that the emergency personnel did
not arrive at the house in a timely manner. Edwards specifi-
cally alleged that “[w]hile waiting for emergency personnel
to arrive, [she] was sexually assaulted at gunpoint.” Edward’s
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Cite as 308 Neb. 259claim was that the 911 operator was dilatory; she did not claim
that the 911 operator assaulted her.
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 in
Moser, supra, and again today, the majority refuses to follow
U.S. Supreme Court precedent. Moser overruled Doe based
on the dubious notion that the U.S. Supreme Court and the
Nebraska Supreme Court interpret the same statutory language
so differently that adhering to U.S. Supreme Court precedent
would offend Nebraska. As I explained in my Moser dissent,
there is no meaningful difference between statutory interpre-
tation habits of the Nebraska Supreme Court and the U.S.
Supreme Court in this regard and reading the text of Neb. Rev.
Stat. § 13-910(7) (Reissue 2012) in the context of the Political
Subdivisions Tort Claims Act (PSTCA) provisions of which it
is a part, including the definition of “claim” in Neb. Rev. Stat.
§ 13-903(4) (Reissue 2012), I conclude that the intentional tort
assault exception to the waiver of sovereign immunity does not
apply; hence, the County is subject to suit in this case.
New Theory by the Government
on Appeal—Again.
As an aside, I mention that this is one of a number of recent
cases in which the governmental party introduced a new theory
for the first time on appeal—in this instance, in a motion for
summary dismissal or affirmance on the eve of oral argument.
See Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020)
(Miller-Lerman, J., dissenting) (noting that theory raised for
first time in appellate brief); Candyland, LLC v. Nebraska
Liquor Control Comm., 306 Neb. 169, 944 N.W.2d 740 (2020)
(Miller-Lerman, J., concurring) (noting that theory raised for
first time at oral argument); State v. Vann, 306 Neb. 91, 944
N.W.2d 503 (2020) (Miller-Lerman, J., concurring) (noting
that theory raised for first time at oral argument resulting in
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Cite as 308 Neb. 259opportunistic and novel use of “plain error” review to overrule
precedent). Unlike the County’s approach in the trial court,
where the County asserted that it owed no duty to Edwards,
about which I make no comment, the County jumped on the
Moser bandwagon for the first time late in the appeal and now
contends that the complaint should be dismissed based on the
intentional tort assault exception to the waiver of sovereign
immunity. Although Edwards may have a burden in being able
to prove negligence by the County, in my view, the case should
not be dismissed based on sovereign immunity, and further, the
record showed sufficient facts to survive a motion for sum-
mary judgment.
The Nebraska Statute and the
Federal Statute Should Be
Read the Same Way.
As in Moser, supra, a case involving inmate assault, the
majority reasons that the government’s earlier negligence arose
out of the subsequent assault by a nongovernmental assailant.
The majority believes that Nebraska abides by a unique stat­
utory interpretation scheme, so it cannot follow the interpreta-
tion of the same language as found in Sheridan, supra. But, as
I explained in my dissent in Moser, the interpretation scheme
is the same, i.e., read the waiver of immunity strictly and the
exceptions thereto broadly, and therefore, one should expect
the same result. The majority, however, has chosen to ignore
the wisdom of the U.S. Supreme Court precedent and insists
that Nebraska should read the same language differently and
that this reading is what the Nebraska Legislature intended. I
respectfully disagree.
As I explained in my Moser dissent and continue to believe,
the majority has got it wrong. In that dissent, I stated:
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
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Cite as 308 Neb. 259be 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 jus-
tice 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 [Federal Tort
Claims Act] 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) . . . .
The U.S. Supreme Court has warned, however, that
“‘unduly generous interpretations of the exceptions run
the risk of defeating 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 temptation 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 exception
“so broadly” that it “would judicially expand” exception).
Applying U.S. Supreme Court precedent and according a
broad reading to the exception provisions of the FTCA to
a fact pattern 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)
and 13-910(7)], [the section] may not bar mixed claims
of negligence and intentional conduct in the relatively
uncommon case” where the negligence claim is indepen-
dent of the intentional tort. Guccione v. U.S., 847 F.2d
1031, 1037 (2d Cir. 1988). So even applying a broad
reading to the intentional tort exception, cases like the
instant matter are not barred where there is independent
negligence by the government.
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Cite as 308 Neb. 259Given the above, the Nebraska Supreme Court and
the U.S. Supreme Court clearly share the same approach
to the statutory language at issue. Nevertheless, with-
out making an apt comparison, the majority insists the
Nebraska approach to statutory interpretation is so dif-
ferent that reading the same language requires a result in
Nebraska different from that of the U.S. Supreme Court’s
controlling authority.
Moser v. State, 307 Neb. 18, 35-36, 948 N.W.2d 194, 206
(2020) (Miller-Lerman, J., dissenting).
In my view, the majority’s act of broadening the assault
exception through unnecessary interpretation is a judicial
expansion beyond the statute’s text and is a usurpation of the
legislative power.
The Intentional Tort Assault Exception Applies to
Claims Alleging Intentional Torts Committed
by Governmental Employees But Not
to Intentional Torts Committed by
Nongovernmental Assailants.
The majority states that there is no basis for applying the
exception “differently depending on whether the assailant was
a governmental or a nongovernmental actor.” To the contrary,
the difference is in the very text of the PSTCA statute, which
the majority avoids quoting in its intentional tort exception
analysis. The statutory language shows that the language of the
intentional tort exception (sometimes referred to as “exemp-
tion”) applies to intentional torts committed by governmental
employees but not to intentional torts committed by nongov-
ernmental actors.
The majority relies on the § 13-910(7) exception, but fails
to explain—“exception to what?” The answer is that the excep-
tion is applicable only to a “claim” that a governmental
employee—not a nongovernmental person—committed the
very tort sought to be excepted. That is, the tort allegedly com-
mitted by the governmental employee must be the same tort
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259for which the exception is applicable. So, if the governmental
employee commits an assault, the governmental entity can
receive immunity based on the assault exception to the waiver
of sovereign immunity. But if the governmental employee
commits a nonassault act of negligence, the governmental
entity cannot receive immunity based on the assault exception
where the assault was committed by a random individual who
is not a governmental employee.
The PSTCA’s general waiver of immunity applies only
to “tort claims” of its employees. Neb. Rev. Stat. § 13-902(Reissue 2012). The type of claims covered by the PSTCA
waiver of immunity are defined in Neb. Rev. Stat. § 13-903(4)
(Reissue 2012), where “claim” is defined as:
Tort claim shall mean any claim against a political sub-
division for money only on account of damage to or loss
of property or on account of personal injury or death,
caused by the negligent or wrongful act or omission of
any employee of the political subdivision, while acting
within the scope of his or her office or employment,
under circumstances in which the political subdivision, if
a private person, would be liable to the claimant for such
damage, loss, injury, or death but shall not include any
claim accruing before January 1, 1970.
Thus, under § 13-903(4), a “claim” is an “act or omission”
of an “employee” of the political subdivision. An “employee”
under § 13-903(3) is defined as “[e]mployee of a political sub-
division shall mean any one or more officers or employees of
the political subdivision . . . .”
The exception on which the majority relies in its resort to
statutory interpretation is found in § 13-910, which provides:
The [PSTCA] shall not apply to:
....
(7) Any claim [defined as a negligent or wrongful act
or omission by a governmental employee in § 13-903(4),]
arising out of assault, battery, false arrest, false impris-
onment, malicious prosecution, abuse of process, libel,
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259slander, misrepresentation, deceit, or interference with
contract rights.
Construing the same language, the U.S. Supreme Court
has explained:
The 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 the FTCA
[or the [PSTCA], the [intentional tort] exception could
not apply to such an assault; rather, the exception only
applies in cases arising out of assaults by federal [or
governmental subdivision] employees.
Sheridan v. United States, 487 U.S. 392, 400, 108 S. Ct. 2449,
101 L. Ed. 2d 352 (1988) (emphasis supplied).
The definitional statute, § 13-903(4), which is omitted from
the majority’s analysis, states “claim” “shall mean . . . neg-
ligent or wrongful act or omission of any employee of the
political subdivision.” (Emphasis supplied.) Under the PSTCA,
sovereign immunity is waived for certain acts, and such acts
give rise to “claims” which form the basis of viable lawsuits
unless such claims are excepted. “Claim” is a statutory word
of art. So the exception for “[a]ny claim arising out of assault”
in § 13-910(7) by definition plainly means that a “negligent or
wrongful act or omission of an employee of the political subdi-
vision” of the kind described will be excepted. See § 13-903(4)
(emphasis supplied).
These statutory words defining “claim” are plain, direct, and
unambiguous. We have repeatedly said:
When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory lan-
guage, understood in context. Rogers v. Jack’s Supper
Club, 304 Neb. 605, 935 N.W.2d 754 (2019). 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
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259plain, direct, and unambiguous. Id. It is not within the
province of the courts to read meaning into a statute that
is not there or to read anything direct and plain out of a
statute. Id.Parks v. Hy-Vee, 307 Neb. 927, 944-45, 951 N.W.2d 504, 518
(2020). Instead of accepting that the text of these statutes is
plain, the majority opinion takes a lengthy excursion in stat­
utory interpretation, and in so doing, it ignores the controlling
statutory text defining “claim” and this context to which excep-
tions are applied.
So in the instant case, we ask: What is the alleged wrong-
ful act of the governmental employee which forms the basis
for the “claim”? Edwards’ “claim” against the County is based
on its alleged negligent handling of the 911 calls. The claim
is based on what the County’s employees did in the course of
their employment, and no one is claiming in this case that a
County employee assaulted Edwards. The claim does not arise
out of the assault; the assault is an independent intentional tort.
Nevertheless, the majority persists in misconstruing the statute.
As in Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020),
the plaintiff alleges that negligence was committed by a gov-
ernmental entity and that the assault is the subsequent injury
or event. In my view, the majority gets it backward; it reasons
that the later “assault,” which is a listed act in § 13-910(7), led
to the earlier negligence claim.
What if Clark stole money out of Edwards’ purse during
the period of the delay? Stealing is not listed as an excepted
act in § 13-910(7). Would the majority reason that the claim
of negligently delayed 911 handling arose from the subse-
quent theft and, because theft is not on the list of § 13-910(7),
that the County is not immune and remains subject to suit?
That is, in the majority view, the Legislature, in enacting
§ 13-910(7), believed that whether a political subdivision can
be sued for its earlier negligence depends on the fortuitous
nature of the crime committed later by the nongovernmental
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Cite as 308 Neb. 259employee. The majority’s reasoning is neither warranted by
statutory text nor sensible.
Referring to the language and purpose of the statute, I ask:
Should a government’s liability for its earlier negligent act
depend on the type of crime a third party later commits? Does
that make the government’s act nontortious? What is the incen-
tive for good 911 hygiene if 911 negligence can be obliterated
by the later criminal act of a third party? Is the reading of the
statute by the majority what the Legislature intended?
We recently stated that “[i]t is a court’s duty to discover,
if possible, the legislative intent from the statute itself.” In re
Guardianship & Conservatorship of J.F., 307 Neb. 452, 458,
949 N.W.2d 496, 502 (2020). And we have long held that it
is presumed that the Legislature intended a sensible, rather
than an absurd, result. Hoiengs v. County of Adams, 254 Neb.
64, 574 N.W.2d 498 (1998). We have specifically applied the
preference for a sensible reading to the PSTCA. E.g., Stick v.
City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015). With
the foregoing in mind, I respectfully believe that the interpre-
tation of the majority of the intentional tort exception in the
PSTCA is neither supported by the text of the statute, sensible,
nor intended by the Legislature. Instead, it is an unwarranted
judicial expansion of a statutory exception.
The Court Invites the
Legislature to Act.
The majority reading strays from the text of the statute,
strays from the principles of statutory construction in general
and in the sovereign immunity jurisprudence in particular,
strays from the reading of the same language by the U.S.
Supreme Court, strays from a sensible reading of § 13-910,
and strays from the fact the Legislature has long acquiesced in
this court’s reading of the assault exception in Doe v. Omaha
Pub. Sch. Dist., 273 Neb 79, 727 N.W.2d 447 (2007), and
in my view, the majority inappropriately comments on fiscal
considerations in its legal analysis. After having judicially
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EDWARDS v. DOUGLAS COUNTY
Cite as 308 Neb. 259expanded the statutory intentional tort exception, the major-
ity finds itself in the awkward position of entreating the
Legislature to consider restoration of the intentional tort assault
exception to the status quo ante Moser. I welcome restoration
by the Legislature.
The majority view developed in Moser has broad conse-
quences. This case involves a woman seeking to avoid vio-
lence. What if 911 dawdled while your daughter was being
sexually assaulted at gunpoint?