Jill B. & Travis B. v. State, 297 Neb. 57

In 2010 Jill and Travis B. inquired of Jodene Gall, a Nebraska DHHS children and family services specialist, whether prospective adoptee K.D.M. had any sexual history; Gall responded no while records available to her (database, intake/forensic reports, and a private narrative) reflected allegations of sexual abuse and sexual acting out.
K.D.M. was placed in the parents’ home; about 5 months later K.D.M. sexually assaulted the parents’ child.
The parents sued the State of Nebraska and DHHS under the State Tort Claims Act for negligent failure to warn/disclose and negligent supervision; the State pleaded the misrepresentation/deceit exception to the Act as an affirmative defense.
The district court (bench trial) found Gall knew of allegations and intentionally misrepresented/withheld K.D.M.’s sexual history; it concluded the parents’ claims were rooted in misrepresentation and dismissed the complaint under the § 81-8,219(4) intentional-torts exception.
On appeal, the Nebraska Supreme Court affirmed, holding the misrepresentation exception bars the claims (including negligence framed claims) because their gravamen was misrepresentation; it also rejected the parents’ procedural challenges and declined to extend Fuhrman where it conflicted with later precedent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether law-of-the-case barred relitigation after denial of summary judgment	District court’s summary judgment denial decided immunity did not apply	Denial was interlocutory; genuine issues remained for trial	Denial not final; law-of-the-case inapplicable
Whether State properly pled misrepresentation/deceit affirmative defense	State’s answer was imperfect; plaintiffs lacked fair notice	Answer and pretrial order provided fair notice of misrepresentation defense	Defense sufficiently pleaded and preserved by pretrial order
Whether misrepresentation/deceit exception bars claims involving physical (nonpecuniary) injury	Misrepresentation tort requires pecuniary/commercial loss; exception limited to economic claims	Exception covers misrepresentation broadly, including personal-injury contexts when gravamen is misrepresentation	Exception applies to noncommercial/physical-injury claims when claim’s essence is misleading communication
Whether negligent supervision/operational-duty claims avoid the misrepresentation exception	Plaintiffs: independent operational duties (supervision/training) create liability separate from misrepresentation	State: plaintiffs’ negligence theories are inextricably linked to misrepresentation and therefore barred	Negligent-supervision claim barred if it arises out of the misrepresentation; no independent duty alleged

United States v. Neustadt, 366 U.S. 696 (1961) (FTCA misrepresentation exception covers negligent as well as intentional misrepresentations)
Block v. Neal, 460 U.S. 289 (1983) (misrepresentation exception applies where claim’s essence is misinformation on which plaintiff relied; distinguishes claims based on separate operational duties)
Stonacek v. City of Lincoln, 279 Neb. 869 (2010) (Nebraska applies Neustadt/Block reasoning; failure to communicate critical information is a misrepresentation for sovereign-immunity purposes)
Johnson v. State, 270 Neb. 316 (2005) (negligent supervision/selection claims arising out of an intentional tort are barred by the intentional-torts exception)
Fuhrman v. State, 265 Neb. 176 (2003) (disapproved insofar as it held that a mere nondisclosure without inference of deliberateness falls outside the misrepresentation exception)
United States v. Shearer, 473 U.S. 52 (1985) (plurality explaining Congressional intent that government not be financially responsible for employees’ assaults and batteries)