Jill B. & Travis B. v. State
297 Neb. 57
| Neb. | 2017Background
- In 2010 Jill and Travis B. sought to adopt K.D.M.; State employee Jodene Gall told them on multiple occasions there was no sexual history for K.D.M., while in fact Gall had access to reports and file entries indicating allegations of sexual abuse and sexually acting-out behavior.
- K.D.M. was placed in the B family home in July 2010 and about five months later sexually assaulted the B’s child.
- The parents sued the State and the Nebraska Department of Health and Human Services 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’s waiver of sovereign immunity as an affirmative defense; the district court denied summary judgment but after a bench trial found the State immune because the claim arose from misrepresentation/deceit and dismissed the complaint.
- On appeal the Nebraska Supreme Court reviewed de novo the statutory issues and defers to the trial court’s factual findings unless clearly wrong, applying strict construction of sovereign-immunity waivers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law‑of‑the‑case barred relitigation of immunity after summary judgment denial | Overruling summary judgment decided immunity issue; court should follow prior ruling | Denial of summary judgment is interlocutory and does not decide the issue | Denial of summary judgment is interlocutory; law‑of‑the‑case inapplicable |
| Whether State properly pleaded misrepresentation/deceit affirmative defense | State’s answer was defective and did not fairly plead intentional misrepresentation | Answer and pretrial order gave fair notice of misrepresentation/deceit defense | Defense was adequately pleaded and pretrial order cured any deficiency |
| Whether the misrepresentation/deceit exception bars plaintiffs’ claims (including physical‑injury damages) | Misrepresentation tort traditionally protects pecuniary interests; exception should not bar non‑commercial physical‑injury claims | Misrepresentation exception covers negligent or intentional misstatements and can bar claims grounded in misinformation regardless of economic vs. physical harm | Misrepresentation/deceit exception applies to claims based on misinformation even when injury is physical; plaintiffs’ claims arise from misrepresentation and are barred |
| Whether negligent‑supervision claim avoids the exception | Supervision claim alleges an independent operational duty and thus is separate from misrepresentation | Supervision allegations are inextricably linked to the misrepresentation and arise from it | Negligent‑supervision claim is barred because it arises out of the same misrepresentation |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (recognizes negligent misrepresentation falls within FTCA misrepresentation exception)
- Block v. Neal, 460 U.S. 289 (misrepresentation exception concerns the communication of misinformation on which the recipient relies)
- Stonacek v. City of Lincoln, 279 Neb. 869 (failure to communicate governmental information held to be misrepresentation under analogous statute)
- Johnson v. State, 270 Neb. 316 (negligent failure to supervise framed as arising from intentional torts exception)
- Fuhrman v. State, 265 Neb. 176 (disapproved to extent it held non‑deliberate complete failures to convey fall outside misrepresentation exception)