Moser v. State
| Citation | 948 N.W.2d 194,307 Neb. 18 |
| Decision Date | 04 September 2020 |
| Docket Number | No. S-19-726.,S-19-726. |
| Parties | Telena MOSER, Personal Representative of the Estate of Terry L. Berry, Jr., deceased, appellant, v. STATE of Nebraska, appellee. |
| Court | Supreme Court of Nebraska |
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.
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.
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 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 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.
On appeal, Moser assigns that the district court erred in (1) finding that the mandatory safety regulations designed to 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).
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.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
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
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 respect to certain, but not all, types of tort actions.5 As pertinent here, the STCA waives the State's sovereign immunity for tort claims against the State on account of personal injury caused by the negligent or wrongful act or omission of any employee of the State, while acting within the scope of his or her office or employment, under circumstances in which the State, if a private person, would be liable to the claimant for such injury.6
But there are exceptions to the State's waiver of immunity. As relevant to this appeal, § 81-8,219 provides that the STCA shall not apply to the following:
The State argues, for the first time in its brief on appeal, that Moser's lawsuit is barred, not just by § 81-8,219(1)—the grounds argued below which the district court relied upon—but also by the intentional tort exception found in § 81-8,219(4). The State notes that this court is bound to construe statutes waiving the State's immunity strictly and in favor of the State and against the waiver, and it argues that the plain language of the intentional tort exception applies to "[a]ny claim arising out of assault [or] battery." The State suggests that we should adopt the reasoning of the concurrence filed in our recent decision in Rutledge v. City of Kimball7 and overrule our earlier decision in Doe v. Omaha Pub. Sch. Dist .8
As an initial matter, we observe that this court may consider the State's contention that the exception set forth in § 81-8,219(4) is applicable.9 We have held that "when a plaintiff's complaint shows on its face that a claim is barred by one of the exceptions [to the State's waiver of immunity], the State's inherent immunity from suit is a jurisdictional issue that an appellate court cannot ignore."10
It is well settled that 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.11 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.12 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.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 that statutes authorizing suit against the State are to be strictly construed, since they are in derogation of the State's sovereignty. Following adoption of the [STCA], we emphasized that statutes in derogation of sovereignty should be strictly construed in favor of the State, so that its sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the State or its government of any of its prerogatives, rights, or remedies,...
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Edwards v. Douglas Cnty.
...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 ......
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Poole v. City of Lincoln
...of "arising 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 apprehension of imminent......
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Dion v. City of Omaha
...Miller-Lerman, I, concurring in part, and in part dissenting. As an initial matter, consistent with my dissenting views in Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020); Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021); and Williams v. State, 310 Neb. 588, 967 N.W.2d 677 ......
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Dion v. City of Omaha
...J., concurring in part, and in part dissenting.As an initial matter, consistent with my dissenting views in Moser v. State , 307 Neb. 18, 948 N.W.2d 194 (2020) ; Edwards v. Douglas County , 308 Neb. 259, 953 N.W.2d 744 (2021) ; and Williams v. State , 310 Neb. 588, 967 N.W.2d 677 (2021), I ......