899 N.W.2d 241 (Neb. 2017), S-15-778, Jill B. v. State

Docket Nº:S-15-778
Citation:899 N.W.2d 241, 297 Neb. 57
Opinion Judge:Cassel, J.
Party Name:JILL B. AND TRAVIS B., INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF B.B., A MINOR CHILD, APPELLANTS, v. STATE OF NEBRASKA AND THE NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, APPELLEES
Attorney:Ryan P. Watson and Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for appellants. Douglas J. Peterson, Attorney General, David A. Lopez, and Bijan Koohmaraie for appellees.
Judge Panel:HEAVICAN, C.J., WRIGHT, MILLER-LERMAN, CASSEL, STACY, KELCH, and FUNKE, JJ.
Case Date:June 30, 2017
Court:Supreme Court of Nebraska

Page 241

899 N.W.2d 241 (Neb. 2017)

297 Neb. 57

JILL B. AND TRAVIS B., INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF B.B., A MINOR CHILD, APPELLANTS,

v.

STATE OF NEBRASKA AND THE NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, APPELLEES

No. S-15-778

Supreme Court of Nebraska

June 30, 2017

Page 242

[Copyrighted Material Omitted]

Page 243

[Copyrighted Material Omitted]

Page 244

[Copyrighted Material Omitted]

Page 245

Appeal from the District Court for Gage County: PAUL W. KORSLUND, Judge.

AFFIRMED.

SYLLABUS

1. Tort Claims Act: Appeal and Error. In actions brought pursuant to the State Tort Claims Act, the factual findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the verdict, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

2. Statutes: Appeal and Error. The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.

3. Actions: Appeal and Error. The law-of-the-case doctrine reflects the principle that an issue that has been litigated and decided in one stage of a case should not be relitigated at a later stage.

4. Summary Judgment. The overruling of a motion for summary judgment does not decide any issue of fact or proposition of law affecting the subject matter of the litigation, but merely indicates that the court was not convinced by the record that there was not a genuine issue as to any material fact or that the party offering the motion was entitled to judgment as a matter of law.

5. Actions: Final Orders: Appeal and Error. The law-of-the-case doctrine requires a final order. A party is not bound by a court's findings in an order that it was not required to appeal.

6. Summary Judgment: Final Orders: Appeal and Error. A denial of a motion for summary judgment is an interlocutory order, not a final order, and therefore not appealable.

7. Tort Claims Act: Immunity: Waiver: Pleadings: Proof. The exceptions found in Neb. Rev. Stat. § 81-8,219 (Reissue 2014) to the general waiver of tort immunity are matters of defense which must be pled and proved by the State.

8. Pleadings: Notice. The key to determining the sufficiency of pleading an affirmative defense is whether it gives the plaintiff fair notice of the defense.

9.

Pretrial Procedure: Pleadings. The issues set out in a pretrial order supplant those raised in the pleadings.

10. 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.

11. Tort Claims Act: Immunity:

Waiver. Under the intentional torts exception, sovereign immunity is not waived for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

12. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and against the waiver. A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction.

13. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

14. Tort Claims Act: Immunity: Waiver. The misrepresentation exception to the waiver of sovereign immunity can apply to claims for personal injuries as well as economic injuries and to claims not involving business transactions.

15. Tort Claims Act: Immunity: Waiver. The misrepresentation exception to the waiver of sovereign immunity must be strictly construed in favor of the government.

16. Tort Claims Act: Immunity: Waiver: Case Disapproved. Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003), is disapproved to the extent it holds that a complete failure to convey critical information, without an inference that this was deliberately done, falls outside the misrepresentation exception to the waiver of sovereign immunity.

17. Tort Claims Act: Pleadings. A plaintiff cannot circumvent the misrepresentation exception simply through artful pleading of its claims.

Ryan P. Watson and Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for appellants.

Douglas J. Peterson, Attorney General, David A. Lopez, and Bijan Koohmaraie for appellees.

HEAVICAN, C.J., WRIGHT, MILLER-LERMAN, CASSEL, STACY, KELCH, and FUNKE, JJ.

OPINION

Page 246

[297 Neb. 59] Cassel, J.

I. INTRODUCTION

A state employee falsely told the parents of a child that K.D.M., a potential adoptee, had no sexual abuse history. Upon placement in their home, K.D.M. sexually assaulted the parents' child. They sued for money damages under the State Tort Claims Act.1 After a bench trial,[2] the district court found the State of Nebraska and the Nebraska Department of Health and Human Services (collectively the State) immune from suit under the exception for misrepresentation and deceit.3 The parents appeal, and we affirm. Because the employee consciously deceived the parents, the exception applies. Our decision is driven by the highly deferential standard used to review the district court's factual findings and the strict construction we must give to waivers of sovereign immunity.

II. BACKGROUND

Because the State prevailed at trial, we summarize the facts in the light most favorable to it.

[297 Neb. 60] 1. Events

In May 2010, the parents, Jill B. and Travis B., became interested in adopting K.D.M. On at least three occasions, Jill asked Jodene Gall, a children and family services specialist with the State, whether K.D.M.'s background had anything " sexually" in it and Gall responded " no." Gall told Jill only that there had been concerns about " inappropriate" contact between K.D.M. and his brother. K.D.M. was placed in the parents' home in July.

Gall, however, was aware of allegations that K.D.M. had been sexually abused. She learned this information by reviewing information contained in the computer database and the master case file, which is a paper file.

Approximately 5 months after K.D.M. was placed in the parents' home, the parents learned that K.D.M. had sexually abused their child.

2.

Lawsuit

The parents, individually and as parents and next friends of their minor child, brought a negligence claim against the State. They alleged failure to warn or disclose and failure to supervise. The State asserted the affirmative defense of immunity under § 81-8,219(4), claiming that the case constituted a claim arising out of misrepresentation or deceit, because the withholding of information by Gall was intentional.

The State filed a motion for summary judgment, which the district court overruled. The court stated that it was clear Gall intentionally concealed K.D.M.'s sexual history from the parents, but that there was evidence she did not read the reports which detailed the sexual history and was not aware of how serious it was. The court reasoned that it could not conclude Gall's intentional concealment of K.D.M.'s sexual history was the sole proximate cause of damages when there was evidence that the proximate cause was Gall's failure to be

Page 247

fully aware of the file and forensic reports. The matter proceeded to trial.

[297 Neb. 61] During the bench trial, Gall testified about her awareness of K.D.M.'s background. When she first spoke with Jill, Gall knew that K.D.M. " had some inappropriate contact" with a relative. Gall believed that she told the parents there had been " inappropriate contact," but she did not believe she elaborated. And Gall testified that she did not know the full extent of K.D.M.'s sexual abuse at that time.

But there was evidence from which the district court could conclude that from the beginning of her contacts with the parents, Gall knew the full extent of K.D.M.'s sexual history. Gall admitted that when K.D.M. was placed with the parents, she was aware of allegations that he had been sexually abused and that he had a history of sexually acting out. She admitted that she was assigned to K.D.M.'s case in 2007 or 2008. She admitted that in 2007, she drafted a " private narrative" section of an adoption form regarding K.D.M. She admitted that the first sentence of the private narrative stated, " '[K.D.M.] would best fit in a family with two parents, preferably no other children.'" She admitted that this opinion " could have been" based on her knowledge of K.D.M.'s sexual history. In an email from Gall to other personnel of the State, Gall recalled the allegations of a particular intake. She admitted at trial that in the email, she was referring to the intake received as exhibit 35. And she admitted that exhibit 35 was the source of her information or knowledge regarding K.D.M.'s sexual history. One of the State's child and family services supervisors explained that the information from this intake form was derived from forensic interviews conducted by a child advocacy center. The supervisor also testified that Gall said " she didn't feel like she would have to call [K.D.M.] a perp for the rest of his life."

3.

District Court's Judgment

The district court entered judgment in favor of the State. Ultimately, the court...

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15 practice notes
  • 301 F.Supp.3d 949 (D.Neb. 2018), 8:16-CV-116, Certain Underwriters at Lloyd’s v. Southern Pride Trucking, Inc.
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • January 30, 2018
    ...867, 872 (2016); see Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866, 874 (2003), disapproved on other grounds, Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241, 265 (2017); Goodenow v. Dept. of Corr. Serv., 259 Neb. 375, 610 N.W.2d 19, 22 (2000). So, Certain Underwriters’ m......
  • 301 F.Supp.3d 949 (D.Neb. 2018), 8:16-CV-116, Certain Underwriters at Lloyd’s v. Southern Pride Trucking, Inc.
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • January 30, 2018
    ...867, 872 (2016); see Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866, 874 (2003), disapproved on other grounds, Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241, 265 (2017); Goodenow v. Dept. of Corr. Serv., 259 Neb. 375, 610 N.W.2d 19, 22 (2000). So, Certain Underwriters’ m......
  • Edwards v. Douglas County, 012921 NESC, S-19-1195
    • United States
    • Nebraska Supreme Court of Nebraska
    • January 29, 2021
    ...supra note 3. [22] See, e.g., id.; Brown v. State, 305 Neb. Ill. 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, 5......
  • 948 N.W.2d 194 (Neb. 2020), S-19-726, Moser v. State
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 4, 2020
    ...of the State Tort Claims Act, § 81-8,219(4), which exception is derived from the FTCA. See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017). The U.S. Supreme Court has addressed the waiver of sovereign immunity and the "arising out of assaul......
  • Free signup to view additional results
15 cases
  • 301 F.Supp.3d 949 (D.Neb. 2018), 8:16-CV-116, Certain Underwriters at Lloyd’s v. Southern Pride Trucking, Inc.
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • January 30, 2018
    ...867, 872 (2016); see Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866, 874 (2003), disapproved on other grounds, Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241, 265 (2017); Goodenow v. Dept. of Corr. Serv., 259 Neb. 375, 610 N.W.2d 19, 22 (2000). So, Certain Underwriters’ m......
  • 301 F.Supp.3d 949 (D.Neb. 2018), 8:16-CV-116, Certain Underwriters at Lloyd’s v. Southern Pride Trucking, Inc.
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • January 30, 2018
    ...867, 872 (2016); see Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866, 874 (2003), disapproved on other grounds, Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241, 265 (2017); Goodenow v. Dept. of Corr. Serv., 259 Neb. 375, 610 N.W.2d 19, 22 (2000). So, Certain Underwriters’ m......
  • Edwards v. Douglas County, 012921 NESC, S-19-1195
    • United States
    • Nebraska Supreme Court of Nebraska
    • January 29, 2021
    ...supra note 3. [22] See, e.g., id.; Brown v. State, 305 Neb. Ill. 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, 5......
  • 948 N.W.2d 194 (Neb. 2020), S-19-726, Moser v. State
    • United States
    • Nebraska Supreme Court of Nebraska
    • September 4, 2020
    ...of the State Tort Claims Act, § 81-8,219(4), which exception is derived from the FTCA. See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017). The U.S. Supreme Court has addressed the waiver of sovereign immunity and the "arising out of assaul......
  • Free signup to view additional results