Johnson v. State
| Decision Date | 29 July 2005 |
| Docket Number | No. S-03-1362.,S-03-1362. |
| Citation | 270 Neb. 316,700 N.W.2d 620 |
| Parties | Connie JOHNSON, appellant, v. STATE of Nebraska, et al., appellees. |
| Court | Nebraska Supreme Court |
Vincent M. Powers, of Vincent M. Powers & Associates, Lincoln, for appellant.
Jon Bruning, Attorney General, and Jennifer M. Tomka, for appellees.
Connie Johnson filed this action against the State of Nebraska, "the State of Nebraska d/b/a the Omaha Correctional Center and the State of Nebraska d/b/a the Department of Corrections" (collectively the defendants) under the State Tort Claims Act (Tort Claims Act), Neb.Rev.Stat. §§ 81-8,209 to 81-8,235 (Reissue 1996 & Cum.Supp.1998). The issue presented is whether the defendants are immune from liability under § 81-8,219(4), which excludes from the Tort Claims Act any claim "arising out of assault."
On June 6, 2001, Johnson filed her petition against the defendants. She alleged that on or about June 8, 1999, she was sexually assaulted by an employee of the Nebraska Department of Correctional Services assigned to work at the Omaha Correctional Center, where Johnson was incarcerated. She further alleged that the employee was acting in the scope and course of his employment at all relevant times.
For Johnson's first theory of recovery, she alleged that the defendants were negligent in (1) violating the "Nebraska Jail Standards" with respect to the housing of female inmates, (2) failing to properly supervise its employees, (3) failing to properly hire employees, (4) failing to properly maintain the Omaha Correctional Center, and (5) failing to discipline the employee who allegedly perpetrated the sexual assault. Johnson alleged that the defendants' negligence proximately caused her damages.
For Johnson's second theory of recovery, she alleged:
[T]the actions of the employee of the Defendant was [sic] so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community. Said actions were in reckless disregard of the fear and emotional suffering that he was inflicting upon [Johnson].
Johnson alleged that "the above described conduct" caused her emotional distress.
In the defendants' answer, they denied the material allegations of Johnson's petition. They also affirmatively alleged, among other things, that they were immune from suit under § 81-8,219(4).
On June 20, 2003, the defendants filed a motion for judgment on the pleadings. . The defendants' motion asserted that the district court lacked jurisdiction and that under § 81-8,219(4), Johnson failed to state a claim upon which relief could be granted. The district court granted the defendants' motion in an October 29, 2003, order, finding that Johnson's claims were barred by § 81-8,219(4) because they arose out of an assault. The court dismissed Johnson's petition with prejudice after concluding that an opportunity to amend the petition would not remedy the deficiency. Johnson appealed, and we moved the case to our docket.
Johnson assigns, consolidated and rephrased, that the district court erred in concluding that § 81-8,219(4) barred her action against the defendants and in not allowing her to amend her petition.
A motion for judgment on the pleadings is properly granted when it appears from the pleadings that only questions of law are presented. Guenzel-Handlos v. County of Lancaster, 265 Neb. 125, 655 N.W.2d 384 (2003). In connection with questions of law and statutory interpretation, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Id.
A motion for judgment on the pleadings admits the truth of all well-pled facts in the opposing party's pleadings, together with all reasonable inferences to be drawn therefrom, and the moving party admits, for the purpose of the motion, the untruth of the movant's allegations insofar as they have been controverted. Id.
The Tort Claims Act waives the State's sovereign immunity with respect to certain, but not all, types of tort actions. See First Nat. Bank of Omaha v. State, 241 Neb. 267, 488 N.W.2d 343 (1992). The State's sovereign immunity remains intact with respect to those types of claims listed in § 81-8,219, to which the Tort Claims Act does not apply. Among them are claims "arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." § 81-8,219(4). The defendants argue that they are immune from suit in this case because Johnson's claim arises out of an assault.
Our analysis begins with standard statutory construction principles to determine the meaning of the phrase "arising out of assault." 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 its waiver. Butler Cty. Sch. Dist. No. 502 v. Meysenburg, 268 Neb. 347, 683 N.W.2d 367 (2004). 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. Id.
This court has not yet had an opportunity to interpret the scope of § 81-8,219(4), sometimes called the intentional torts exception. Because Nebraska law is limited, we can look to federal law for additional guidance. The Federal Tort Claims Act contains an intentional torts exception virtually identical to § 81-8,219(4). See 28 U.S.C. § 2680(h) (2000). We have recognized that Nebraska's Tort Claims Act is patterned after the Federal Tort Claims Act. Northland Ins. Co. v. State, 242 Neb. 10, 492 N.W.2d 866 (1992); Security Inv. Co. v. State, 231 Neb. 536, 437 N.W.2d 439 (1989).
In United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), the plaintiff, the mother of a murdered soldier, brought an action against the United States under the Federal Tort Claims Act. The plaintiff alleged that the U.S. Army negligently failed to exert sufficient control over a soldier known to be dangerous and who had murdered her son. The U.S. Supreme Court held that the plaintiff could not recover against the government for negligently failing to prevent another serviceman's assault and battery. A majority of the Court based its holding on a doctrine of law specific to military personnel; however, four of the eight participating justices also concluded that the plaintiff's suit was barred by the intentional torts exception in 28 U.S.C. § 2680(h). Those four justices relied in large part upon § 2680's legislative history to say:
(Emphasis in original.) United States v. Shearer, 473 U.S. at 55, 105 S.Ct. 3039. In the years following Shearer, several circuit courts adopted the same position. See, Thigpen v. United States, 800 F.2d 393 (4th Cir.1986); Garcia v. United States, 776 F.2d 116 (5th Cir.1985); Franklin v. United States, 992 F.2d 1492 (10th Cir.1993); Guccione v. U.S., 847 F.2d 1031 (2d Cir.1988). See, also, Westcott v. City of Omaha, 901 F.2d 1486 (8th Cir. 1990) ().
United States v. Shearer, supra,
however, was not the U.S. Supreme Court's final word on the subject. Three years after Shearer, the Court decided Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In Sheridan, an intoxicated off-duty serviceman was found by several naval corpsmen at Bethesda Naval Hospital. They attempted to take the serviceman to the emergency room, but abandoned their efforts when the serviceman brandished a rifle. Later that night, the serviceman fired shots into a vehicle, injuring the occupants. Those occupants brought an action against the federal government, alleging that their injuries were caused by the government's negligence in allowing the serviceman to leave the hospital with a loaded rifle in his possession. The district court dismissed the action, and the court of appeals affirmed, concluding that the action was barred by 28 U.S.C. § 2680(h) because it arose out of an assault.
The U.S. Supreme Court began its analysis by stating that "it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur." Sheridan...
To continue reading
Request your trial
-
Moser v. State
...State, but not where the actor was a nongovernmental actor.This court was presented with the intentional tort exception to the STCA in Johnson v. State.16 In Johnson , an inmate with DCS filed a claim under the STCA, alleging that she was sexually assaulted by a DCS employee. We noted that ......
-
John Doe v. Bd. Of Regents Of The Univ. Of Neb. .
...60See Duffy v. Riveland, 98 F.3d 447 (9th Cir.1996). 61See §§ 81-8,209 through 81-8,235. 62See § 81-8,219. 63See Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005). 64Security Inv. Co. v. State, 231 Neb. 536, 550, 437 N.W.2d 439, 448 (1989). See, also, 37 Am.Jur.2d Fraud and Deceit § 1 (......
-
Edwards v. Douglas Cnty.
...it is helpful to review our previous opinions construing the scope and meaning of the intentional tort exemption. In the 2005 case of Johnson v. State ,30 a prisoner brought a tort action against the State, seeking to recover damages for personal injury after being sexually assaulted by a p......
-
Jill B. v. State
...was responsible for Gall's workload.Recasting an excepted tort claim as a negligence claim does not avoid the bar of immunity. In Johnson v. State ,127 we determined that a negligence claim asserting failure to supervise, hire, and discipline was barred because it arose out of assault and b......