Rutledge v. City of Kimball

• Decision Date: 06 December 2019
• Docket Number: No. S-18-924.,S-18-924.
• Citation: 304 Neb. 593,935 N.W.2d 746
• Parties: Amie L. RUTLEDGE, appellant, v. CITY OF KIMBALL, a political subdivision of the State of Nebraska, appellee.
• Court: Nebraska Supreme Court

304 Neb. 593

935 N.W.2d 746

Amie L. RUTLEDGE, appellant,

v.CITY OF KIMBALL, a political subdivision of the State of Nebraska, appellee.

No. S-18-924.

Supreme Court of Nebraska.

Filed December 6, 2019

INTRODUCTION

This case arose out of an alleged assault and battery perpetrated by David Ford, an employee of appellee, the City of Kimball, Nebraska (City). Appellant, Amie L. Rutledge, filed a complaint alleging the City was negligent for failing to supervise Ford and for failing to protect the general public and Rutledge from Ford when the City knew or should have known of Ford’s past violent behavior, violent propensities, and prior assaults. The district court granted the City’s motion to dismiss on the grounds that the claim was barred by the intentional torts exception to the Political Subdivisions Tort Claims Act (PSTCA). We affirm.

BACKGROUND

On July 26, 2013, Rutledge filed a claim with the City for damages incurred after its then employee, Ford, allegedly attacked and choked her in the Kimball City Building. On August 2, Rutledge also filed a complaint in the district court for Kimball County against Ford for assault and battery.

After her claim was denied by the City, Rutledge amended her complaint against Ford to add the City as an additional party. As noted above, Rutledge alleged the City was negligent for failing to take proper measures to supervise Ford and protect the general public and Rutledge when the City knew or should have known of Ford’s past violent behavior, violent propensities, and prior assaults.

The City filed a motion to dismiss, claiming Rutledge failed to state a claim upon which relief could be granted. On July 8, 2014, the district court granted the City’s motion after finding the allegations against the City arose out of Ford’s alleged assault and battery and, thus, were exempt from application of the PSTCA. On September 14, 2018, Rutledge filed a motion to dismiss her complaint against Ford with prejudice, which was granted by the district court the same day.

ASSIGNMENT OF ERROR

Rutledge’s sole assignment of error is that the trial court erred in granting the City’s motion to dismiss for failure to state a claim upon which relief may be granted.

STANDARD OF REVIEW

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

Whether the allegations made by a plaintiff present a claim that is precluded by exemptions set forth in the PSTCA is a question of law.² An appellate court has an obligation to reach its conclusion on whether a claim is precluded by exemptions set forth in the PSTCA independent from the conclusion reached by the trial court.³

ANALYSIS

Rutledge argues her claims are not barred by the intentional torts exception to the PSTCA, because they did not arise from Ford’s assault and battery, but from the City’s "independent duty to protect [her] from [Ford’s] foreseeable acts of violence."⁴ The City maintains that Rutledge’s claims are barred by the intentional torts exception because they arise from an assault and battery and that Rutledge "is simply re-framing an injury ... as negligence" in an attempt to avoid the City’s sovereign immunity.⁵

The PSTCA governs claims made against a political subdivision when the claim is based upon acts or omissions of an employee occurring within the scope of employment.⁶ The PSTCA allows a limited waiver of a political subdivision’s sovereign immunity with respect to certain, but not all, types of tort actions.⁷ Section 13-910 sets forth specific claims that are exempt from the waiver of sovereign immunity, including "[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."⁸ This is sometimes referred to as the " ‘intentional torts exception.’ "⁹

In Johnson v. State ,¹⁰ this court analyzed the intentional torts exception contained in the State Tort Claims Act, which contains language identical to the PSTCA.¹¹ In that case, an inmate filed a negligence claim against the State of Nebraska, the Omaha Correctional Center, and the Nebraska Department of Correctional Services, alleging she was sexually assaulted by an employee of the Department of Correctional Services while the employee was acting within the scope of his employment. The plaintiff alleged the defendants were negligent in (1) violating Nebraska jail standards with respect to the housing of female inmates, (2) failing to properly supervise their 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. The district court dismissed the plaintiff’s petition after finding her claims were barred by the intentional torts exception because they arose out of an assault. This court affirmed the judgment of the district court. In doing so, we adopted Justice Kennedy’s concurrence in the U.S. Supreme Court case Sheridan v. United States .¹²

When addressing the intentional torts exception to the Federal Tort Claims Act, Justice Kennedy’s concurrence recognized that an injury could arise from more than one cause and stated:

"To determine whether a claim arises from an intentional assault or battery and is therefore barred by the exception, a court must ascertain whether the alleged negligence was the breach of a duty to select or supervise the employee-tortfeasor or the breach of some separate duty independent from the employment relation.... If the allegation is that the Government was negligent in the supervision or selection of the employee and that the intentional tort occurred as a result, the intentional tort exception ... bars the claim. Otherwise, litigants could avoid the substance of the exception because it is likely that many, if not all, intentional torts of Government employees plausibly could be ascribed to the negligence of the tortfeasor’s supervisors. To allow such claims would frustrate the purposes of the exception."¹³

To summarize, Johnson held that under the intentional torts exception, the State is immune from suit when the tort claim "is based on the mere fact of government employment (such as a respondeat superior claim) or on the employment relationship between the intentional tort-feasor and the government (such as a negligent supervision or negligent hiring claim)."¹⁴

Similarly, in Britton v. City of Crawford ,¹⁵ this court held that when conduct " ‘aris[es] out of’ a battery," it falls within the exception of § 13-910(7) and the political subdivision is not liable for damages resulting from the battery, even when the pleaded conduct is characterized or framed as negligence. In Britton , the personal representative of the estate of a deceased police shooting victim sued the City of Crawford under the PSTCA, alleging it was negligent in handling a standoff where the victim had barricaded himself. The City of Crawford filed a motion to dismiss the complaint on the grounds that it failed to state a cause of action upon which relief could be granted, and it argued the City of Crawford could not be held liable under the PSTCA, because the complaint alleged assault and battery. The district court granted the City of Crawford’s motion to dismiss. This court affirmed and held the claim was barred by the intentional torts exception because the alleged negligence was "inextricably linked" to a battery.¹⁶ We reasoned that "[w]hile other factors may have contributed to the situation which resulted in [the victim’s] death, but for the battery, there would have been no claim."¹⁷

Here, Rutledge’s claim clearly arises out of a battery. Rutledge alleges Ford attacked and strangled her, without her consent, intending to cause a harmful or offensive contact with her.¹⁸ She further alleges the City was negligent because it "knew or should have known that FORD had displayed past violent behavior and violent propensities, including prior assaults upon citizens[,] while on duty with [the] CITY" and "in failing to take proper measures to supervise FORD and protect the general public, specifically RUTLEDGE." In her brief, Rutledge asserts her claim is not barred by the intentional torts exception, because it is not based on "vicarious liability, or for negligent supervision or negligent hiring."¹⁹ She contends that "Ford’s employment status is immaterial," yet she argues the City "was uniquely positioned as his employer, with full knowledge of the facts and circumstances of that prior violent act and subsequent control over Ford, to protect [her]."²⁰ Rutledge further argues her negligence claim is "wholly independent" of Ford’s employment status, because it alleges the City was negligent for "failing to protect [her] and the public in general."²¹

We hold that Rutledge’s negligence claim is barred by the PSTCA because she cannot allege any potential source of duty other than Ford’s employment status. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.²² The threshold issue in any negligence action is whether the defendant owes a legal duty to the plaintiff.²³ This court has held that there is no duty to control the conduct of a third person so as to prevent him or her from causing physical harm to another, unless " ‘a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.’ "²⁴

When a special relationship exists, an actor in that relationship " ‘owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.’ "²⁵...