Jill B. & Travis B. v. State
297 Neb. 57
Neb.2017Background
- In 2010 Jill and Travis B. sought to adopt K.D.M.; DHHS caseworker Jodene Gall told them on multiple occasions there was nothing sexual in K.D.M.’s background, though Gall had access to reports and intake records indicating allegations of sexual abuse and sexually acting-out behavior.
- K.D.M. was placed in the parents’ home; about five months later K.D.M. sexually assaulted the parents’ minor child.
- The parents sued the State of Nebraska and DHHS under the State Tort Claims Act alleging negligence (failure to disclose/warn and negligent supervision).
- The State pleaded the § 81-8,219(4) intentional-torts exception (misrepresentation/deceit) as an affirmative defense and argued Gall intentionally withheld material information.
- District court (bench) found Gall made intentional misrepresentations (or deliberately withheld information) and that the parents’ claims were rooted in misrepresentation; it dismissed the complaint as barred by the misrepresentation exception.
- Parents appealed; the Nebraska Supreme Court affirmed, holding the claim arises from misrepresentation and is barred by sovereign immunity under the statute as strictly construed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law‑of‑the‑case bound trial court after denial of summary judgment | Denial of summary judgment decided immunity did not apply | Overruling SJ is interlocutory and does not decide merits | Denial of SJ is interlocutory; law‑of‑the‑case did not apply |
| Whether State timely pleaded misrepresentation affirmative defense | Answer was deficient/unclear as to intent | Answer and pretrial order gave fair notice of misrepresentation defense | Pleading (and pretrial order) gave fair notice; defense was properly before court |
| Whether misrepresentation/deceit exception bars claims based on nondisclosure leading to physical injury | Misrep. exception limited to pecuniary/commercial losses; physical‑injury claims not barred | Exception applies to negligent or intentional misrepresentation generally; may cover noncommercial and physical‑harm contexts | Exception can apply to non‑economic/personal‑injury claims; gravamen test controls and parents’ claim arises from misrepresentation — barred |
| Whether negligent‑supervision claim survives given alleged operational duties | Supervision failure is independent operational duty | Supervision claim arises out of and is inextricably linked to misrepresentation | Negligent supervision claim is barred because it arises out of the misrepresentation |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (U.S. 1961) (FTCA misrepresentation exception covers negligent as well as intentional misrepresentation)
- Block v. Neal, 460 U.S. 289 (U.S. 1983) (essence of misrepresentation is communication of misinformation on which recipient relies; distinguishes operational‑duty claims)
- Stonacek v. City of Lincoln, 279 Neb. 869 (Neb. 2010) (failure to communicate critical information is barred by misrepresentation exception under state tort‑claims framework)
- Fuhrman v. State, 265 Neb. 176 (Neb. 2003) (disapproved insofar as it held a complete failure to convey critical information without inference of deliberate conduct lies outside misrepresentation exception)
- Johnson v. State, 270 Neb. 316 (Neb. 2005) (negligent supervision/hiring claims arising out of intentional torts are barred by intentional‑torts exception)