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 told them "no" while knowing or having access to records indicating allegations and sexually acting-out behavior.
- K.D.M. was placed with the parents; about five months later K.D.M. sexually assaulted the parents’ child.
- The parents sued the State and DHHS under the Nebraska State Tort Claims Act for negligence (failure to warn/disclose and failure to supervise). The State pleaded the intentional-torts exception (misrepresentation/deceit) in § 81-8,219(4) as an affirmative defense.
- The district court denied summary judgment but after a bench trial found Gall intentionally misrepresented or concealed K.D.M.’s history, concluded the gravamen of the parents’ claims was misrepresentation, and dismissed the complaint as barred by sovereign immunity.
- On appeal the Nebraska Supreme Court affirmed, holding (1) the misrepresentation/deceit exception can bar claims involving physical injury (not limited to pecuniary loss), (2) the complaint’s core was misrepresentation so sovereign immunity was not waived, and (3) negligent supervision claims rooted in the misrepresentation were likewise barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case barred relitigation of immunity after denial of summary judgment | Parents: denial of summary judgment decided immunity did not apply | State: denial was interlocutory and left factual issues for trial | Denied — summary judgment denial was interlocutory; law-of-the-case not triggered |
| Whether State properly pleaded misrepresentation/deceit affirmative defense | Parents: answer failed to give fair notice and referenced intentional conduct despite negligence pleading | State: answer and pretrial order gave fair notice of misrepresentation defense | Held for State — pleading and pretrial order provided fair notice |
| Whether misrepresentation/deceit exception bars claims based on nondisclosure that resulted in physical injury | Parents: misrepresentation tort traditionally requires pecuniary loss; their harms are physical/emotional | State: misrepresentation exception covers negligent or intentional misstatements that the recipient relies on, regardless of commercial context | Held for State — exception can apply to noncommercial claims and physical injuries when gravamen is misrepresentation; strict construction favors immunity |
| Whether negligent supervision claim survives when tied to the misrepresentation | Parents: supervisor overwork/negligence caused failure to disclose | State: negligent supervision is inextricably linked to the misrepresentation and thus barred | Held for State — negligent supervision claims arising out of the intentional/misrepresentation tort are barred |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (misrepresentation exception covers negligent as well as intentional misstatements)
- Block v. Neal, 460 U.S. 289 (FTCA misrepresentation exception bars claims grounded in misinformation; distinguish operational duties)
- Stonacek v. City of Lincoln, 279 Neb. 869 (gravamen-of-the-complaint test: failure to communicate information is misrepresentation under tort-claims exception)
- Johnson v. State, 270 Neb. 316 (negligent supervision claims arising from intentional torts are barred by intentional-torts exception)
- Fuhrman v. State, 265 Neb. 176 (disapproved in part — previously suggested complete nondisclosure without inference of deliberate concealment falls outside misrepresentation exception)
- Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138 (statutory waivers of sovereign immunity are strictly construed)