Jill B. & Travis B. v. State
297 Neb. 57
Neb.2017Background
- In 2010 Jill and Travis B. inquired whether a prospective adoptee, K.D.M., had any sexual-abuse history; State employee Jodene Gall repeatedly said "no" while knowing of forensic reports and allegations indicating 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’ child.
- The parents sued the State and the Nebraska Department of Health and Human Services under the State Tort Claims Act for negligence (failure to warn/disclose and negligent supervision).
- The State pleaded the intentional-torts exception (misrepresentation/deceit) in Neb. Rev. Stat. § 81-8,219(4) as an affirmative defense, asserting Gall intentionally withheld or misrepresented K.D.M.’s history.
- After a bench trial the district court found the gravamen of the parents’ claim was misrepresentation by Gall and dismissed the complaint as barred by the misrepresentation/deceit exception; the parents appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case barred relitigation of immunity after denial of summary judgment | Denial of summary judgment meant immunity didn’t apply | Denial was interlocutory; summary judgment denial does not decide the issue | Denial was interlocutory; law-of-the-case did not bind trial court; court rejected plaintiff’s argument |
| Whether State properly pleaded misrepresentation/deceit as affirmative defense | Answer referenced only intentional conduct and plaintiff alleged negligence; pleading insufficient | Answer and pretrial order gave fair notice and preserved defense | Pleading and pretrial order gave fair notice; defense properly asserted |
| Whether misrepresentation/deceit exception bars claims for physical (nonpecuniary) injury | Misrepresentation tort requires pecuniary loss; exception shouldn’t bar physical-injury claims | Exception covers negligent or intentional misrepresentation generally, not limited to economic loss | Misrepresentation exception can bar personal-injury claims where claim’s gravamen is communicating misinformation on which plaintiff relied |
| Whether negligent supervision/operational-duty claims avoid the misrepresentation exception | Supervision claim is independent operational duty and not subsumed by misrepresentation | Claims arise out of the same misrepresentation, so exception applies | Claims alleging injury dependent on erroneous information are barred; negligent-supervision claim barred |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (U.S. 1961) (FTCA misrepresentation exception covers negligent as well as intentional misrepresentation; essence is communication of misinformation relied upon)
- Block v. Neal, 460 U.S. 289 (U.S. 1983) (FTCA misrepresentation exception applies when claim’s essence is misrepresentation; distinguishes claims based on separate operational duties)
- United States v. Shearer, 473 U.S. 52 (U.S. 1985) (discusses Congress’ intent that government not be financially responsible for assaults and batteries of employees)
- Stonacek v. City of Lincoln, 279 Neb. 869 (Neb. 2010) (under state tort-claims framework, failure to communicate critical information is properly characterized as misrepresentation and falls within exception)
- Johnson v. State, 270 Neb. 316 (Neb. 2005) (negligence claims that arise out of intentional torts—framed as negligent supervision, hiring, or discipline—are barred by the intentional-torts exception)