Jill B. & Travis B. v. State
297 Neb. 57
| Neb. | 2017Background
- In 2010 Jill and Travis B. inquired of state worker Jodene Gall whether prospective adoptee K.D.M. had any sexual-abuse history; Gall answered “no.”
- Gall had access to and in some instances reviewed files and intake reports indicating allegations that K.D.M. had been sexually abused and exhibited sexually acting-out behavior.
- K.D.M. was placed in the B.s’ home; about 5 months later K.D.M. sexually assaulted the B.s’ child.
- The parents sued the State under the Nebraska State Tort Claims Act for negligence (failure to warn/disclose and negligent supervision); the State pleaded the misrepresentation/deceit exception to sovereign-immunity waiver.
- The district court (bench trial) found Gall intentionally concealed K.D.M.’s history and that the parents’ claims were rooted in misrepresentation, so the misrepresentation/deceit exception barred recovery; plaintiffs appealed.
- The Nebraska Supreme Court affirmed, holding the misrepresentation exception applied (including to noncommercial/physical-injury contexts) and that negligent-supervision claims arising from the same facts were likewise barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case barred relitigation of immunity after summary-judgment denial | District court’s denial of summary judgment resolved immunity against State | Denial of summary judgment is interlocutory and does not decide immunity | Denied: summary-judgment denial is interlocutory; law-of-the-case inapplicable |
| Whether State adequately pleaded misrepresentation affirmative defense | Plaintiffs: answer failed to fairly plead intentional-misrepresentation defense | State: answer and pretrial order gave fair notice and raised the intentional-torts exception (§81-8,219(4)) | Held for State: pleading and pretrial order provided fair notice; defense properly raised |
| Whether misrepresentation/deceit exception bars claims based on noncommercial conduct and physical injury | Plaintiffs: misrepresentation traditionally addresses pecuniary/commercial loss only; exception therefore inapplicable | State: misrepresentation covers negligent or willful misinformation on which plaintiffs rely, including physical-harm contexts | Held for State: exception can apply to personal injury/noncommercial claims; gravamen test controls—this case arises from misrepresentation |
| Whether negligent-supervision claim survives given misrepresentation core | Plaintiffs: supervision negligence is independent operational duty | State: negligent-supervision claim is inextricably linked to the misrepresentation and thus barred | Held for State: supervision claim arises out of misrepresentation and is barred under the intentional-torts exception |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (1961) (FTCA misrepresentation exception covers negligent and intentional misrepresentation; essence is communication of misinformation relied upon)
- Block v. Neal, 460 U.S. 289 (1983) (misrepresentation exception applies when claim’s essence is misinformation relied upon; distinguishes operational duties)
- Stonacek v. City of Lincoln, 279 Neb. 869 (2010) (under Nebraska law, failure to communicate critical information is within misrepresentation exception)
- Fuhrman v. State, 265 Neb. 176 (2003) (disapproved to extent it held complete nondisclosure without inference of deliberate concealment falls outside misrepresentation)
- Johnson v. State, 270 Neb. 316 (2005) (negligent failure to supervise/hire arising from an intentional-tort situation is barred by statutory exception)