Jill B. v. State

Decision Date30 June 2017
Docket NumberNo. S-15-778,S-15-778
Citation899 N.W.2d 241,297 Neb. 57
Parties 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.
CourtNebraska Supreme Court

Ryan P. Watson and Jeffrey A. Wagner, Omaha, of Schirber & Wagner, L.L.P., Papillion, 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.

Cassel, J.


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.


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


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.


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

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."


The district court entered judgment in favor of the State. Ultimately, the court reasoned that the State's liability "rises and falls on whether [K.D.M.' s] sexual abuse history was disclosed, not on whether or not the information was available to [Gall] and whether [Gall] was negligently trained and supervised." The court also stated that "the information was available to [Gall,] and she was not negligently trained and supervised."

The district court made numerous factual findings, and we quote the findings bearing on Gall's intent as follows:

8. [Gall] was actually aware that [K.D.M.'s] background included some instances of sexual abuse and inappropriate sexual contact with a sibling at the time of the [parents'] inquiries.
9. During the preliminary meetings and evaluations, [Gall] also represented to ... a licensed mental health counselor who was assisting with the placement process[ ] that [K.D.M.] had no sexual abuse history as either a victim or perpetrator.
10. [Gall] was not authorized with discretion to withhold relevant information concerning the sexual abuse history of [K.D.M.]
11. Even while [Gall] knew that [K.D.M.'s] background included allegations of sexual abuse and inappropriate sexual contact and acting out, and despite her awareness that the [parents] were very concerned about whether [K.D.M.] had any history that included sexual activity, [K.D.M.] was placed in the [parents'] home in 2010.

The district court concluded that the parents presented a case "rooted in and inextricably intertwined with multiple instances of misrepresentation" by Gall. Because the State Tort Claims Act "specifically excepts from its waiver of governmental immunity claims that are based on misrepresentation and deceit," the court dismissed the complaint.

The parents filed a timely appeal, and we granted their petition to bypass review by the Nebraska Court of Appeals.


The parents assign four errors, which we have restated and reordered. We first address their assignments that the district court erred in not applying the law-of-the-case doctrine and in finding the misrepresentation exception had been properly asserted as an affirmative defense. We then consider the heart of the appeal, where they attack the court's determination that the State was immune under the exception for misrepresentation or deceit. Finally, we discuss the assignment of error regarding the court's finding that Gall was not negligently trained and supervised.


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.4

The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.5


We briefly dispose of two procedural issues.


The parents argue that the district court erred in failing to apply the law-of-the-case doctrine. 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.6

The parents reason that in overruling the State's motion for summary judgment, the district court determined that immunity did not apply. We disagree for two reasons.

First, the parents' premise is wrong. 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.7 Here, the district court did not decide that immunity did not apply, it merely decided that there was a genuine issue of fact for trial.

Second, 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.8 But here, neither party was permitted, much less required, to appeal. A denial of a motion for summary judgment is an interlocutory order, not a final order, and therefore not appealable.9 Thus, the law-of-the-case doctrine did not preclude the district court from addressing immunity at trial.


The exceptions found in § 81-8,219 to the general waiver of tort immunity are matters of defense which must be pled and proved by the State.10 The parents contend that ...

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    ...resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.13 As we noted in Jill B. & Travis B. v. State:14 The principle of strict construction predated the [STCA] and has been consistently followed after its adoption. We had long said th......
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