Catania v. University of Nebraska, 42248
| Decision Date | 07 August 1979 |
| Docket Number | No. 42248,42248 |
| Citation | 204 Neb. 304,282 N.W.2d 27 |
| Parties | Marcia CATANIA, Appellee, v. The UNIVERSITY OF NEBRASKA, a corporate governmental body, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Board of Regents: Statutes: Torts. The Board of Regents of the University of Nebraska is a "state agency" within the meaning of section 81-8,209 et seq., R.R.S.1943, and tort claims against it must be brought under the authority of the Tort Claims Act.
2. Venue: Statutes: Torts. The requirements of section 81-8,214, R.R.S.1943, prescribe the venue for suits brought under the state Tort Claims Act without modification or liberalization occasioned by the general venue statutes.
3. Legislature: Statutes: Intent. Statutes in derogation of sovereignty should be strictly construed in favor of the state, and should not be permitted to divest the state or its government of any of its prerogatives, rights, or remedies, unless the intention of the Legislature to effect this object is clearly expressed.
4. Statutes. Where the statutes provide an exclusive remedy against the state and a particular forum for judicial trial, these requirements must be followed.
5. Torts: Governmental Subdivisions: Jurisdiction. In order to sue the State of Nebraska or one of its agencies under the Tort Claims Act, the petition must be filed in the District Court for the county in which the alleged wrongful act or omission took place, and in the absence of specific legislative authority, that jurisdictional requirement may not be waived.
6. Jurisdiction. Want of jurisdiction of the subject matter of an action requires the court to proceed by dismissal or other appropriate action.
John R. Douglas of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.
Martin A. Cannon of Matthews & Cannon, P. C., Omaha, for appellee.
Heard before BOSLAUGH, McCOWN, BRODKEY, and HASTINGS, JJ., and FAHRNBRUCH, District Judge.
This is an action brought by the plaintiff for personal injuries resulting from the alleged negligence of the defendant, The University of Nebraska, a corporate governmental body, more accurately described as the Board of Regents of the University of Nebraska. Plaintiff was a student at the University and suffered injury and permanent disability when struck in the right eye by a plastic practice golf ball during a physical education class session held on the Lincoln campus. The case was tried before a judge of the District Court for Douglas County, and resulted in a judgment in favor of the plaintiff in the amount of $60,000. The University has appealed, setting forth as errors improper venue, failure of the evidence to support the judgment, and excessive damages.
In her original petition filed on March 21, 1977, plaintiff alleged the facts of the accident as briefly outlined above, after claiming the action was brought pursuant to the Political Subdivisions Tort Claims Act, section 23-2401 et seq., R.R.S.1943, and that she had filed a claim with the secretary of the Board of Regents more than 6 months prior to the filing of the petition. The University filed an answer generally admitting the allegations of the petition except negligence on its part. Thereafter, the plaintiff apparently had second thoughts about having followed the proper procedure, so she filed a claim with the secretary of the State Claims Board under the provisions of the Tort Claims Act, section 81-8,209 et seq., R.R.S.1943. The University then filed a motion to dismiss the petition as premature and for improper venue, which was overruled. An amended answer, repeating the objections of the motion and denials of the first answer, was filed on October 11, 1977. Finally, on March 29, 1978, plaintiff filed an amended petition setting forth the filing of claims with the secretary of the Board of Regents on July 27, 1976, and with the State Claims Board on July 12, 1977, neither of which was acted upon. For its answer to the amended petition the University again denied the claim on its merits, but also objected to the jurisdiction of the court because the action should have been filed in Lancaster County. In the final analysis, plaintiff was attempting to proceed simultaneously under both the Political Subdivisions Tort Claims Act and the Tort Claims Act, so it is necessary to examine each of them in some detail.
The Political Subdivisions Tort Claims Act declares that no political subdivision of the State of Nebraska shall be liable for any torts and no suit may be maintained except to the extent provided by that act. Section 23-2402, R.R.S.1943, requires that a political subdivision shall include "villages, cities of all classes, counties, school districts, public power districts, and all other units of local government." Claims "shall be filed with the clerk, secretary, or other official * * * of the political subdivision, * * *." s. 23-2404, R.R.S.1943. "No suit shall be permitted" until after final disposition of the claim by the governing body or the expiration of 6 months after filing. s. 23-2405, R.R.S.1943. "Jurisdiction, venue, procedure, and rights of appeal * * * shall be determined in the same manner as if the suits involved private individuals, * * *." s. 23-2406, R.R.S.1943. This would indicate that venue would be governed by the general venue statute as applied to suits against residents, section 25-409, R.R.S.1943, which permits a suit to "be brought in the county where the * * * plaintiff resides and the defendant * * * may be summoned." In this case, the plaintiff was a resident of Douglas County and apparently, there being no objection or showing to the contrary, the University was properly summoned. In addition, that statute provides: "(W)hen an action has been commenced in a county other than as specified herein, the court in which the action has been commenced shall have jurisdiction over such action, but upon timely motion by a defendant the court shall transfer the action to the proper court in the county in which the action should or might have been commenced as herein provided."
On the other hand, the Tort Claims Act, section 81-8,209 et seq., R.R.S.1943, prohibits suits against the state or any state agency except as provided in that act. Section 81-8,210, R.R.S.1943, requires that a state agency shall "include all departments, agencies, boards, bureaus, and commissions of the State of Nebraska, and corporations whose primary function is to act as, and while acting as, instrumentalities or agencies of the State of Nebraska * * * ." Claims under that act must be filed with the State Claims Board and no suit may be brought until final disposition or the expiration of 6 months after the clam is made. s. 81-8,213, R.R.S.1943. Suits shall be brought in the District Court of the county where the act or omission complained of occurred. s. 81-8,214, R.R.S.1943.
From a reading of the foregoing two acts it becomes readily apparent that it is essential in this case to decide whether the University is a political subdivision or a state agency. Article VII, section 10, Constitution of Nebraska, provides: "The general government of the University of Nebraska shall, Under the direction of the Legislature, be vested in a board * * * to be designated the Board of Regents of the University of Nebraska, * * *." (Emphasis supplied.) The implementing legislation, section 85-105, R.R.S.1943, provides: The University shares similar statutory language with the various cities and villages, counties, airport authorities, drainage districts, and the like. However, the common thread weaving the fabric of the latter together, which is absent in the University, is fixed geographic boundaries and the authority to levy taxes. "* * * political subdivision contemplates: geographical area and boundaries, public elections, * * * taxing power and a general public purpose or benefit." Bolen v. Board of Firemen, etc., 308 S.W.2d 904 (Tex.Civ.App., 1957). The University is statewide in its service, has no geographical limitations in the boundary sense of the word, and has no power to levy taxes. It is completely dependent, initially at least, on the appropriations made by the Legislature, as are all state agencies.
Additionally, state agencies are thought of as the alter egos of the state itself, viz., "departments, agencies, boards, bureaus, and commissions of the State of Nebraska, and corporations whose primary function is to act as, and while acting as, instrumentalities or agencies of the State of Nebraska * * *." § 81-8,210, R.R.S.1943. It is obvious from the constitutional provisions that the general government of the University shall be under the direction of the Legislature to provide means for the higher education of all the citizens of the entire state.
While the court, in Board of Regents of University of Nebraska v. Dawes, 370 F.Supp. 1190 (D.Neb., 1974), initially refers to "(t)he plaintiff, a political subdivision of Nebraska," it appears from the discussion that this was simply a rather loose use of language, and that it considered the Regents a state agency as the term is applied in the current matter. The Regents were seeking a declaratory judgment as to whether salaries of women employees violated the Fair Labor Standards Act, and the defendants counterclaimed for unpaid wages and liquidated damages. The Regents asserted the counterclaim was barred by the Eleventh Amendment of the United States Constitution. The court held that the Regents do not consent to a waiver of immunity from suit by counterclaim when they file a declaratory judgment action. "The Ford Motor Co. case (Ford Motor Co. v. Dept. of...
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