948 N.W.2d 194 (Neb. 2020), S-19-726, Moser v. State

Docket NºS-19-726.
Citation948 N.W.2d 194, 307 Neb. 18
Opinion JudgeHeavican, C.J.
Party NameTelena MOSER, Personal Representative of the Estate of Terry L. Berry, Jr., deceased, appellant, v. STATE of Nebraska, appellee.
AttorneyThomas J. Monaghan and Rodney C. Dahlquist, Jr., of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., Omaha, for appellant. Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellee.
Judge PanelHeavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Freudenberg, J., not participating. Miller-Lerman, J., dissenting.
Case DateSeptember 04, 2020
CourtSupreme Court of Nebraska

Page 194

948 N.W.2d 194 (Neb. 2020)

307 Neb. 18

Telena MOSER, Personal Representative of the Estate of Terry L. Berry, Jr., deceased, appellant,

v.

STATE of Nebraska, appellee.

No. S-19-726.

Supreme Court of Nebraska.

September 4, 2020.

Page 195

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1. Motions to Dismiss: Pleadings: Appeal and Error. A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

3. Tort Claims Act: Appeal and Error. Whether the allegations made by a plaintiff constitute a cause of action under the State Tort Claims Act or whether the allegations set forth claims which are precluded by the exemptions set forth in the act is a question of law, for which an appellate court has a duty to reach its conclusions independent of the conclusions reached by the district court.

4. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception to the State's waiver of immunity under the State Tort Claims Act is an issue that the State may raise for the first time on appeal and that a court may consider sua sponte.

5. Tort Claims Act: Legislature: Immunity: Waiver. Through the State Tort Claims Act, the Legislature has waived the State's immunity with respect to certain, but not all, types of tort actions.

6. Statutes: Immunity: Waiver. Statutes that purport to waive the 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 [307 Neb. 19] language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction.

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

8. Assault: Political Subdivisions Tort Claims Act: Tort Claims Act. Because the assault and battery exceptions of the State Tort Claims Act and the Political Subdivisions Tort Claims Act are nearly identical, cases construing the Political Subdivisions Tort Claims Act are applicable to cases under the State Tort Claims Act and vice versa.

9. Public Policy. While the doctrine of stare decisis is entitled to great weight, it is grounded in the public policy that the law should be stable, fostering both equality and predictability of treatment.

10. Appeal and Error. Remaining true to an intrinsically sounder doctrine better serves the values of stare decisis than following a more recently decided case inconsistent with the decisions that came before it.

Appeal from the District Court for Johnson County: Ricky A. Schreiner, Judge.

Thomas J. Monaghan and Rodney C. Dahlquist, Jr., of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., Omaha, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Heavican, C.J.

INTRODUCTION

Terry L. Berry, Jr., was incarcerated at the Tecumseh State Correctional Institution (TSCI), an institution under the control of the Nebraska Department of Correctional Services (DCS). On April 10, 2017, Berry was moved into a cell with Patrick W. Schroeder, another inmate at TSCI. Five days later, Schroeder strangled Berry, who died of his injuries on April 19.

[307 Neb. 20] Telena Moser, the personal representative of Berry's estate, filed a claim with the State of Nebraska under the State Tort Claims Act (STCA). After the statutory time for the State to respond to her claim had passed, Moser filed this suit on behalf of Berry's estate. The suit alleges negligence and wrongful death on the part of DCS. The district court dismissed Moser's complaint. Moser appeals.

We granted the State's motion to bypass the Nebraska Court of Appeals due to the public interest involved in this case and, as asserted in the State's petition to bypass, to address an apparent "inconsistency in this Court's opinions in applying the strict construction legal principles of the STCA exceptions to sovereign immunity as those legal principles have been explained and applied by this Court's more recent decisions," specifically in the context of the intentional tort exception.

We find that the State has immunity under the intentional tort exception to the STCA, and accordingly, we affirm the order dismissing Moser's suit, albeit under different grounds for immunity than those relied upon by the district court.

BACKGROUND

In this case, the district court granted the State's motion to dismiss; therefore, the operative facts are those set forth in Moser's complaint. According to that complaint, Berry was incarcerated with DCS on November 20, 2015, after being convicted of second degree forgery and assault by a confined person. He was sentenced to 3 to 4 years' imprisonment.

Schroeder was convicted of first degree murder, use of a weapon to commit a felony, and six counts of second degree forgery. He was sentenced to life imprisonment and was committed to DCS on August 31, 2006. Schroeder had been committed to TSCI since 2007, and according to the complaint, he was known for "having a bad temper." Berry was also known for having behavioral issues and had been identified as "needing anger management programming."

On April 10, 2017, Schroeder was notified that he would need to move out of his cell and into a different unit and [307 Neb. 21] that he would be "double bunked." Schroeder told staff that he would not accept being double bunked. Fifteen minutes before he was due to be moved, Schroeder was told that his

Page 198

new cellmate would be Berry. Schroeder objected, because "he knew Berry to have enemies [and be] talkative" and because Berry was "believed to be dirty." On that same day, Berry was notified that he was being moved and that "if he refused the move, [he] would be double bunked with another inmate."

On April 15, 2017, Schroeder physically attacked Berry, who was subsequently transported to a local hospital and then to a hospital in Lincoln, Nebraska. Berry was declared brain dead on April 17 and was removed from life support on April 19. An autopsy showed that Berry's cause of death was asphyxia due to strangulation.

On September 15, 2017, Moser filed an administrative claim under the STCA. No action was taken within 6 months. Moser filed this action on November 26, 2018. In it, she asserted three causes of action: (1) the State's negligence in breaching its duty to protect Berry from harms against which he was unable to prevent himself, (2) its negligence per se in failing to comply with "the requirements of [DCS] Administrative Regulation 210.01," and (3) wrongful death under Neb. Rev. Stat. § 30-809 et seq. (Reissue 2016).

The State filed a motion to dismiss for lack of subject matter jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1), specifically arguing that the discretionary function exception of Neb. Rev. Stat. § 81-8,219(1) (Reissue 2014) to the STCA gave the State immunity from suit. The State also argued that Moser failed to state a claim under § 6-1112(b)(6). The district court granted that motion, concluding that the State was immune from suit under § 81-8,219(1).

Moser appeals.

ASSIGNMENTS OF ERROR

On appeal, Moser assigns that the district court erred in (1) finding that the mandatory safety regulations designed to [307 Neb. 22] prevent inmate assaults were discretionary rather than mandatory, (2) finding that the decision by TSCI staff to "double bunk" Berry and Schroeder was a policy decision rather than an operational decision, (3) finding that the discretionary function exception applied to the decision to double bunk Berry with Schroeder and to maintain such housing despite warnings regarding Berry's safety, (4) finding that the State acted with due care when it placed Berry with Schroeder and when it maintained this housing despite warnings regarding Berry's safety, and (5) granting the State's motion to dismiss under § 81-2,219(1).

STANDARD OF REVIEW

A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the non-moving party.1 Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.2 Whether the 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.3

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An exception to the State's waiver of immunity under the STCA is an issue that the State may raise for the first time on appeal and that a court may consider sua sponte.4

[307 Neb. 23] ANALYSIS

On appeal, Moser argues that the district court erred in granting the State's motion to dismiss. Her assignments of error center on the district court's finding that § 81-8,219(4) barred her claim.

Through the STCA, the Legislature has waived the State's immunity with...

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3 practice notes
  • Poole v. City of Lincoln, 071321 NEDC, 4:21CV3030
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court of Nebraska
    • 13 Julio 2021
    ...out of” an assault and battery covers any case in which an assault or battery is essential to the claim. Moser v. State, 948 N.W.2d 194 (Neb. 2020). Assault is defined as the “threat or use of force on another that causes that person to have a reasonable apprehensio......
  • In re A.A., 032621 NESC, S-20-009
    • United States
    • Nebraska Supreme Court of Nebraska
    • 26 Marzo 2021
    ...al., 251 Neb. 320, 557 N.W.2d 26 (1996). [4] Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988). [5] Id. [6] Id. [7] Moser v. State, 307 Neb. 18, 948 N.W.2d 194 [8] Id. [9] Id. [10] Commissioner, INS v. Jean, 496 U.S. 154, 161-62, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) ......
  • Pieper v. State, 060121 NECA, A-20-557
    • United States
    • Nebraska Court of Appeals of Nebraska
    • 1 Junio 2021
    ...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 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 ap......
3 cases
  • Poole v. City of Lincoln, 071321 NEDC, 4:21CV3030
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court of Nebraska
    • 13 Julio 2021
    ...out of” an assault and battery covers any case in which an assault or battery is essential to the claim. Moser v. State, 948 N.W.2d 194 (Neb. 2020). Assault is defined as the “threat or use of force on another that causes that person to have a reasonable apprehensio......
  • In re A.A., 032621 NESC, S-20-009
    • United States
    • Nebraska Supreme Court of Nebraska
    • 26 Marzo 2021
    ...al., 251 Neb. 320, 557 N.W.2d 26 (1996). [4] Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988). [5] Id. [6] Id. [7] Moser v. State, 307 Neb. 18, 948 N.W.2d 194 [8] Id. [9] Id. [10] Commissioner, INS v. Jean, 496 U.S. 154, 161-62, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) ......
  • Pieper v. State, 060121 NECA, A-20-557
    • United States
    • Nebraska Court of Appeals of Nebraska
    • 1 Junio 2021
    ...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 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 ap......

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