Jill B. & Travis B. v. State
297 Neb. 57
| Neb. | 2017Background
- In 2010 Jill and Travis B. inquired of DHHS caseworker Jodene Gall whether a prospective adoptee, K.D.M., had any sexual-abuse history; Gall responded “no” while knowing there were allegations and forensic reports indicating sexual abuse/acting-out.
- K.D.M. was placed with the parents; about 5 months later K.D.M. sexually assaulted the parents’ minor child.
- The parents sued the State and DHHS under the Nebraska State Tort Claims Act for negligence (failure to warn/disclose; negligent supervision).
- The State pleaded the § 81-8,219(4) intentional-torts exception (misrepresentation/deceit) as an affirmative defense and argued Gall intentionally withheld or misrepresented K.D.M.’s history.
- The district court found facts supporting that Gall knew of allegations yet represented otherwise, concluded the gravamen of the parents’ claim was misrepresentation, and dismissed under the misrepresentation exception; the parents appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case barred relitigation after denial of summary judgment | Denial of SJ meant immunity inapplicable | Denial of SJ is interlocutory and does not decide the issue | Court: SJ denial is interlocutory; law-of-the-case inapplicable |
| Whether State properly pleaded misrepresentation affirmative defense | Answer referenced negligence, not intentional misrepresentation | Answer and pretrial order gave fair notice of misrepresentation defense | Court: Pleading and pretrial order provided fair notice; defense properly asserted |
| Whether misrepresentation/deceit exception bars claims involving physical (nonpecuniary) injury | Parents: misrepresentation tort is for pecuniary/business loss only; therefore exception shouldn't apply | State: exception covers negligent or intentional misrepresentation where claim’s gravamen is misinformation relied on | Court: Exception can cover noncommercial and physical-injury cases; gravamen test applies; claim barred |
| Whether negligent supervision claim escapes exception | Parents: supervision is an independent operational duty separate from misrepresentation | State: negligent supervision arises from and is inextricable from the misrepresentation and thus barred | Court: Claim arises out of misrepresentation and is barred; negligent supervision cannot evade exception |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (U.S. 1961) (FTCA misrepresentation exception covers negligent and intentional misrepresentation)
- Block v. Neal, 460 U.S. 289 (U.S. 1983) (essence of misrepresentation is communication of misinformation on which recipient relies)
- Stonacek v. City of Lincoln, 279 Neb. 869 (Neb. 2010) (failure to communicate critical information falls within misrepresentation exception)
- Johnson v. State, 270 Neb. 316 (Neb. 2005) (negligence claims that stem from intentional torts are barred under the exception)
- Fuhrman v. State, 265 Neb. 176 (Neb. 2003) (disapproved in part here regarding distinction between nondisclosure and misrepresentation)
- Indian Towing Co. v. United States, 350 U.S. 61 (U.S. 1955) (operational negligence distinguished from misrepresentation)