Jill B. & Travis B. v. State
297 Neb. 57
Neb.2017Background
- In 2010 Jill and Travis B. inquired of DHHS caseworker Jodene Gall whether prospective adoptee K.D.M. had any sexual history; Gall replied “no” though she had access to records showing allegations of sexual abuse and sexualized acting out. K.D.M. was placed in their home and later sexually assaulted the parents’ child.
- The parents sued the State and DHHS under the Nebraska State Tort Claims Act for failure to warn/disclose and negligent supervision; the State pleaded the misrepresentation/deceit exception to sovereign-immunity waiver (§ 81-8,219(4)).
- The district court denied the State’s summary-judgment motion, tried the case to the bench, found Gall intentionally concealed the sexual-history information, and concluded the parents’ claims arose from misrepresentation/deceit, so sovereign immunity barred recovery.
- The parents appealed, arguing (1) the law-of-the-case required the court to treat immunity as rejected after summary judgment, (2) the State did not properly plead the misrepresentation defense, (3) the misrepresentation exception should not bar noncommercial claims for physical injury, and (4) the State was liable for negligent supervision.
- The Nebraska Supreme Court reviewed statutory interpretation de novo but applied a clearly-erroneous standard to the court’s factual findings and emphasized strict construction of any waiver of sovereign immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Law-of-the-case from denial of summary judgment | Denial of SJ resolved immunity against State | Denial was interlocutory; left factual issues for trial | Denial of SJ is interlocutory; law-of-the-case not triggered |
| Sufficiency of pleading misrepresentation defense | Answer failed to give fair notice (referenced intentional conduct only) | Answer and pretrial order gave fair notice of misrepresentation/deceit defense | Pleading and pretrial order provided fair notice; defense properly raised |
| Whether misrepresentation exception bars claims for physical injury (noncommercial) | Misrep. tort limited to pecuniary/commercial losses; exception shouldn’t bar physical-injury claims | Exception covers misrepresentation/deceit broadly; misstatements that induced reliance fall within exception | Exception can bar personal-injury claims arising from misrepresentation; apply strict construction in favor of sovereign |
| Negligent supervision claim | Supervisory negligence was independent operational duty and not barred | Supervision claim is inextricably linked to misrepresentation and thus barred by exception | Negligent-supervision claim arises from misrepresentation and is barred |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (discusses negligent misrepresentation under FTCA and scope of misrepresentation exception)
- Block v. Neal, 460 U.S. 289 (clarifies "essence" of misrepresentation is communication of misinformation on which recipient relies)
- Stonacek v. City of Lincoln, 279 Neb. 869 (Nebraska application: failure to communicate government information is a misrepresentation-based claim)
- Johnson v. State, 270 Neb. 316 (holds claims arising from intentional torts, even framed as negligence in supervision, are barred)
- Fuhrman v. State, 265 Neb. 176 (disapproved to extent it held pure nondisclosure without inference of deliberate action falls outside misrepresentation exception)