Edwards v. Douglas Cnty.
| Decision Date | 29 January 2021 |
| Docket Number | No. S-19-1195.,S-19-1195. |
| Parties | Julie EDWARDS, appellant, v. DOUGLAS COUNTY, a political subdivision of the State of Nebraska, appellee. |
| Court | Nebraska Supreme Court |
Gretchen L. McGill, Omaha, 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.
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.
Edwards and Kenneth Clark were involved in a dating relationship 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 was 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, confiscated 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 hostage, 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 dispatched 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.
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 "had a duty to provide and maintain a 911 service system utilizing reasonable care" and had breached that duty by mishandling 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 specifically 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.
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.
In 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.
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 summary judgment.
Whether the allegations made by a plaintiff set forth claims which are precluded by exemptions under the PSTCA presents a question of law.3
When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.4
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.5
Shortly before the scheduled oral argument in this appeal, Douglas County moved for summary dismissal or, in the alternative, summary affirmance, claiming we lack subject matter 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 argument, 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 subject 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 immunity from suit is a jurisdictional issue that an appellate court cannot ignore.10
The sovereign immunity of the State and its political subdivisions 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 constitutional 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 political subdivisions.
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 provided in the [PSTCA]."14 Through the PSTCA, 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.15
Section 13-910 of the PSTCA expressly exempts certain 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. When an exemption under the PSTCA 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 summary judgment.17
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 sometimes referred to this exemption broadly as the "intentional tort" exempti...
To continue reading
Request your trial
-
Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Rds.
...857 (2017) ; Thompson v. Heineman , 289 Neb. 798, 857 N.W.2d 731 (2015).23 See Knick, supra note 20.24 See Edwards v. Douglas County , 308 Neb. 259, 953 N.W.2d 744 (2021).25 Brief for appellee NDOT at 17.26 See U.S. Const. amends. V and XIV.27 See, e.g., In re Claim of Roberts for Attorney ......
-
Gardner v. Franklin
... ... Omaha bar that Gardner owned. A Douglas County, Nebraska ... grand jury indicted Gardner on several charges, including ... of their authority or for their own benefit. See ... Crutcher-Sanchez v. Cnty. of Dakota , 687 F.3d 979, 987 ... (8th Cir. 2012). And in the briefs, the plaintiffs' ... Dion , 311 Neb. at 540 (citing Edwards , 953 ... N.W.2d 744). The Court is to apply the "gravamen of the ... complaint test," ... ...
-
Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Roads
...857 (2017); Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015). 23. See Knick, supra note 20. 24. See Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021). 25. Brief for appellee NDOT at 17. 26. See U.S. Const. amends. V and XIV. 27. See, e.g., In re Claim of Roberts for At......
-
Gardner v. Franklin
... ... Omaha bar that Gardner owned. A Douglas County, Nebraska ... grand jury indicted Gardner on several charges, including ... of their authority or for their own benefit. See ... Crutcher-Sanchez v. Cnty. of Dakota , 687 F.3d 979, 987 ... (8th Cir. 2012). And in the briefs, the plaintiffs' ... Dion , 311 Neb. at 540 (citing Edwards , 953 ... N.W.2d 744). The Court is to apply the "gravamen of the ... complaint test," ... ...