Shlien v. Board of Regents, S-00-451.
| Citation | 640 N.W.2d 643,263 Neb. 465 |
| Decision Date | 22 March 2002 |
| Docket Number | No. S-00-451.,S-00-451. |
| Parties | Rania K. SHLIEN, Appellant, v. The BOARD OF REGENTS of the UNIVERSITY OF NEBRASKA, Appellee. |
| Court | Supreme Court of Nebraska |
Vincent M. Powers, Lincoln, and Elizabeth A. Govaerts, of Vincent M. Powers & Associates, for appellant.
John C. Wiltse, Lincoln, for appellee.
Rania K. Shlien appeals from the order of the district court for Lancaster County which concluded that her negligence cause of action against the Board of Regents of the University of Nebraska (the University) was time barred, granted the University's motion for summary judgment, and dismissed her amended petition. Because there remain genuine issues as to material facts, we reverse the decision of the district court and remand the cause for further proceedings.
At the outset, we note as a procedural matter that Shlien's lawsuit named two defendants: the University and David Hibler, a former assistant professor at the University. The order which forms the basis of the instant appeal concerns only the University. The district court entered judgment in favor of the University and against Shlien pursuant to the then applicable Neb.Rev.Stat. § 25-705(6) (Supp. 1999), now found at Neb.Rev.Stat. § 25-1315(1) (Cum.Supp.2000). Accordingly, the parties to the instant appeal are limited to Shlien and the University.
In the early 1990's, Shlien was a student at the University of Nebraska-Lincoln. During the spring semester of 1991, she was enrolled in an English composition course taught by Hibler. As part of a class assignment, Shlien wrote and submitted two papers to Hibler entitled "Anacoluthon" and "Being There For You." Shlien alleged that the papers contained "intimate details of her private life."
In 1995, Hibler set up a Web site on the World Wide Web using the University's computer service. Part of the material Hibler posted to the Web site was a publication entitled the "Big Red Reader." At some time in 1995, Hibler uploaded the papers written by Shlien to his Web site as part of the Big Red Reader. Hibler's posting of Shlien's papers was done without Shlien's knowledge or consent. On the record before us, no party was able to specify the date in 1995 on which Hibler posted Shlien's papers to the Web site, but there was evidence that Hibler last posted material to the Big Red Reader on October 24, 1995. During the course of discovery, Shlien was deemed to have admitted that the papers had been posted sometime in 1995.
Shlien alleged that she first became aware of the presence of her papers on the Web site on or about June 19, 1997, at which time she demanded that they be removed. Shlien filed a tort claim with the State Tort Claims Board on February 17, 1998. The claim was denied on or about May 21, 1998.
Shlien filed the present action in district court on September 23, 1998, naming the University and Hibler as defendants. In the initial petition filed September 23, Shlien alleged two causes of action against each defendant. The first cause of action was for negligence, and the second cause of action was for invasion of privacy pursuant to Neb.Rev.Stat. § 20-201 et seq. (Reissue 1997).
In its answer, the University alleged that Shlien's causes of action against it were barred by the statute of limitations. The University filed a motion for summary judgment contending, inter alia, that both causes of action were time barred and that, in any event, the petition failed to state a cause of action for invasion of privacy.
The district court entered an order on February 17, 1999. The district court concluded that Shlien's right to privacy cause of action "d[id] not come within the Nebraska right to privacy statutes" and did not constitute an invasion of privacy under § 20-203. The district court further determined, as to the cause of action for negligence, that the claim accrued in 1995 when Shlien's papers were posted to the Web site and that Shlien's claim filed with the State Claims Board in 1998 did not come within 2 years thereafter as required under Neb.Rev.Stat. § 81-8,227(1) (Reissue 1996), thus the negligence cause of action against the University was time barred. However, the district court ruled that Shlien was entitled to amend her petition to allege an excuse tolling the operation and bar of the statute of limitations. The district court therefore sustained the University's motion for summary judgment as to the invasion of privacy cause of action and, evidently treating the University's motion as to the negligence cause of action as a demurrer, denied the motion and gave Shlien 21 days in which to file an amended petition.
On March 10, 1999, Shlien filed an amended petition, which is the controlling petition in this case. On March 18, the University filed an answer to the amended petition, in which it again asserted that the remaining negligence cause of action was barred by the statute of limitations. The University also filed a motion for summary judgment in which it sought entry of judgment in its favor. In its motion for summary judgment, the University asserted that there were no genuine issues of material fact concerning, inter alia, the accrual of the claim in 1995, the filing of Shlien's claim with the State Claims Board on February 17, 1998, and the filing of this action in the district court on September 23, 1998.
The district court ruled on the University's motion for summary judgment in an order entered May 17, 1999. In its ruling, the district court noted that Shlien generally argued that each time the Web site was accessed, it constituted a separate actionable "`publication,'" that her parents accessed the Web site in June 1997, and that therefore, the papers were "`published' " to them on that date. In contrast, the University generally argued that the claim accrued under § 81-8,227(1); that the statute of limitations began to run upon the initial "publication," which occurred when Hibler uploaded the papers to the Web site in 1995; and that, therefore, Shlien's claim filed with the State Claims Board on February 17, 1998, was filed greater than 2 years after the claim accrued. The district court specifically noted that although Shlien alleged in her amended petition that she was not aware of the date the papers were originally made available on the Web site, she had admitted that such event occurred in 1995.
In its order in favor of the University, the district court agreed with the University that "publication" occurred on the date the material was first uploaded in 1995 and made available to be accessed by other users. The district court concluded that the 2 year filing requirement of § 81-8,227(1) began to run in 1995 when the papers were first published on the Web site. The district court stated that even if the initial publication occurred on the last day of 1995, Shlien's claim, filed on February 17, 1998, was filed outside the 2-year period. The district court ordered that the University's motion for summary judgment be sustained and that the amended petition be dismissed as to the University.
Shlien appealed the May 17, 1999, order sustaining the University's motion for summary judgment. On March 13, 2000, a mandate was issued by this court dismissing the appeal due to the lack of a final order. See Shlien v. Board of Regents, 258 Neb. xxii (case No. S-99-882, Feb. 24, 2000). The parties subsequently requested that the district court enter an order stating that the May 17, 1999, order was a final, appealable order under § 25-705(6). In an order dated March 30, 2000, the district court stated that it expressly determined that there was no just reason for delay in entry of final judgment for the University and expressly directed the entry of final judgment in favor of the University only. Shlien filed the instant appeal.
Shlien asserts generally that the district court erred in concluding that the statute of limitations barred her negligence cause of action against the University and asserts specifically that the district court erred in finding that (1) "the Single Publication Rule applied to the Internet" and (2) "the Discovery Rule does not apply to Internet Publications."
In reviewing an order granting a motion for summary judgment, the question is not how a factual issue is to be decided, but, instead, whether any real issue of material fact exists. Bates v. Design of the Times, Inc., 261 Neb. 332, 622 N.W.2d 684 (2001).
We note that in her original petition, Shlien alleged two causes of action against the University: one for negligence and one for invasion of privacy. In the course of the proceedings recited above, Shlien filed an amended petition in which the allegations against the University were limited to negligence. Shlien abandoned her right to privacy cause of action against the University. The district court's conclusions regarding the statute of limitations from which this appeal was taken apply only to the negligence cause of action, and therefore, the only issue before this court on appeal is whether on this record the district court erred in concluding that the statute of limitations barred Shlien's negligence cause of action against the University.
The University and its Board of Regents are agencies of the state, and tort claims against the University must be brought in accordance with the provisions of the State Tort Claims Act, Neb.Rev. Stat. § 81-8,209 et seq. (Reissue 1996 & Cum.Supp.2000). See Hullinger v. Board of Regents, 249 Neb. 868, 546 N.W.2d 779 (1996). Section 81-8,227(1) of the act provides:
Every tort claim permitted under the State Tort Claims Act shall be forever barred unless within two years after such claim accrued the claim is made in writing to the State Claims Board in the manner provided by such act. The time to begin...
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