Pieper v. State, 060121 NECA, A-20-557

Docket NºA-20-557
Opinion JudgeRTLE, Chief Judge
Party NameJohn Pieper, appellant, v. State of Nebraska, appellee
AttorneyJoy Shiffermiller, of Shiffermiller Law Office, PC, L.L.O., for appellant. Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellee.
Judge PanelPiRTLE, Chief Judge, and Moore and Bishop, Judges. Bishop, Judge, concurring.
Case DateJune 01, 2021
CourtCourt of Appeals of Nebraska

29 Neb.App. 912

John Pieper, appellant,

v.

State of Nebraska, appellee

No. A-20-557

Court of Appeals of Nebraska

June 1, 2021

1.

Tort Claims Act: Appeal and Error. Whether the allegations made by a plaintiff constitute a cause of action under the State Tort Claims Act 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.

2. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception to the State's waiver of immunity under the State Tort Claims Act is an issue that the State may raise for the first time on appeal and that a court may consider sua sponte.

3. Tort Claims Act: Legislature: Immunity: Waiver. Through the State Tort Claims Act, the Legislature has waived the State's immunity with respect to certain, but not all, types of tort actions.

4. Tort Claims Act: Immunity: Waiver. The State Tort Claims Act 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.

5. Tort Claims Act: Immunity: Waiver: Appeal and Error. 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 under the State Tort Claims Act, the State's inherent immunity from suit is a jurisdictional issue that an appellate court cannot ignore.

6. Tort Claims Act: Assault: Words and Phrases. A broad definition of "arising out of an assault or battery" is consistent with the plain language of that phrase, which suggests that if a claim under the State Tort Claims Act would not exist without an assault or battery, it arises out of that assault or battery.

[29 Neb.App. 913] 7. Political Subdivisions Tort Claims Act: Tort Claims Act. Because the language of the intentional tort exception is nearly identical under both the Political Subdivisions Tort Claims Act and the State Tort Claims Act, the cases construing the exception under the Political Subdivisions Tort Claims Act are applicable to cases under the State Tort Claims Act and vice versa.

Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.

Joy Shiffermiller, of Shiffermiller Law Office, PC, L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellee.

PiRTLE, Chief Judge, and Moore and Bishop, Judges.

RTLE, Chief Judge

INTRODUCTION

John Pieper appeals from an order of the district court for Lancaster County which granted the State's motion for summary judgment on the basis that it lacked subject matter jurisdiction because Pieper's negligence claim was barred by the discretionary function exception to Nebraska's State Tort Claims Act (STCA), Neb. Rev. Stat. § 81-8, 209 et seq. (Reissue 2014). Based on the reasons that follow, we affirm the district court's order, albeit for a different reason.

BACKGROUND

Pieper is an inmate in the custody of the Nebraska Department of Correctional Services (the Department), an agency of the State of Nebraska. He was convicted of first degree assault and first degree imprisonment. Through most of his incarceration, Pieper has been housed at the Lincoln Correctional Center.

On September 22, 2016, Pieper was transferred to the Nebraska State Penitentiary in order to participate in a violence reduction program that had been recommended for him. [29 Neb.App. 914] The program was not offered at the Lincoln Correctional Center at that time. The day Pieper arrived at the penitentiary, two inmates assaulted him, causing injuries.

On August 24, 2018, Pieper filed a complaint for damages against the State pursuant to the STCA. Pieper generally alleged that the assault on him at the penitentiary was carried out by two inmates who were members of a gang to which Pieper once belonged. Pieper alleged that for some time prior to his transfer, he had received threats indicating that he would be assaulted by gang members if he were ever transferred to the penitentiary. Pieper generally alleged that he had made various Department personnel aware of the threats and the possibility of an assault if he were transferred and that the Department ordered the transfer despite knowing of the threats. Pieper set forth a claim of negligence on the part of the State, alleging that the State was negligent for failing to use the degree of care required to provide reasonably adequate protection for Pieper-who was an inmate in its institution-by failing to take action to protect Pieper, despite its knowledge of the substantial risk to Pieper's safety. Pieper sought damages for physical and mental injuries and emotional distress.

The State filed an answer generally denying Pieper's allegations. The State also raised various defenses, including that the State was entitled to sovereign immunity and that Pieper's claim was barred by § 81-8, 219(1) (claim based on performance of discretionary function) and § 81-8, 219(4) (claim arising out of assault).

On February 1, 2020, the State filed a motion for summary judgment, alleging that the court lacked subject matter jurisdiction because Pieper's negligence claim was barred by the discretionary function exception to the STCA.

Following a summary judgment hearing, the district court granted the State's motion for summary judgment and dismissed Pieper's complaint for lack of subject matter jurisdiction. The court determined that under relevant statutes and regulations, the decision to require Pieper to participate in the violence [29 Neb.App. 915] reduction program and to transfer him to the penitentiary to participate in the program were matters of choice for Department staff and were of the sort considered discretionary functions. Therefore, it concluded that the discretionary function exception to the STCA applied and barred Pieper's claim.

ASSIGNMENTS OF ERROR

Pieper assigns that the district court erred in (1) granting summary judgment in favor of the State and (2) finding that it lacked subject matter jurisdiction and that the case was barred by the discretionary function exception to the STCA.

STANDARD OF REVIEW

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. Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020).

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...

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