Jill B. & Travis B. v. State
297 Neb. 57
| Neb. | 2017Background
- In 2010 Jill and Travis B. inquired whether a potential adoptee, K.D.M., had any sexual-abuse history; state employee Jodene Gall answered "no."
- Gall had access to intake reports and a master case file indicating allegations that K.D.M. had been sexually abused and had a history of sexually acting out.
- K.D.M. was placed in the parents’ home; about 5 months later K.D.M. sexually assaulted the parents’ child.
- The parents sued the State and Nebraska Department of Health and Human Services under the State Tort Claims Act for negligence (failure to warn/disclose and failure to supervise).
- The State pled the intentional-torts exception (misrepresentation/deceit) in § 81-8,219(4) as an affirmative defense; the district court, after bench trial, found the gravamen of the parents’ claim was misrepresentation by Gall and dismissed the case as barred by sovereign immunity.
- The parents appealed, arguing (inter alia) law-of-the-case, insufficient pleading of the defense, that misrepresentation cannot bar claims for physical injury, and that negligent supervision liability should survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the law-of-the-case doctrine barred re-litigation of immunity after denial of summary judgment | Denial of summary judgment precluded relitigation of immunity at trial | Denial of summary judgment is interlocutory and raises factual issues for trial | Denial of summary judgment is interlocutory; law-of-the-case inapplicable |
| Whether State fairly pleaded the misrepresentation affirmative defense | Plaintiffs: answer was imperfect and referenced intentional conduct inconsistent with complaint | State: answer and pretrial order gave fair notice of misrepresentation defense | Pleading and pretrial order gave fair notice; defense was properly asserted |
| Whether the misrepresentation/deceit exception bars claims based on non‑commercial, physical injury (failure-to-disclose causing sexual assault) | Plaintiffs: misrepresentation tort traditionally requires pecuniary/commercial loss and should not bar personal-injury claims | State: misrepresentation exception covers negligent or intentional misrepresentation where the gravamen is misinformation relied upon | The exception can apply to negligent or willful misrepresentation causing physical injury; the gravamen here is misrepresentation, so claim is barred |
| Whether negligent supervision claim survives despite misrepresentation exception | Plaintiffs: negligent supervision is an independent operational duty | State: negligent supervision claim is inextricably linked to the misrepresentation and arises from the same conduct | Claims of negligent supervision that arise out of the same misrepresentation are barred by the intentional‑tort exception |
Key Cases Cited
- United States v. Neustadt, 366 U.S. 696 (1961) (FTCA misrepresentation exception covers negligent as well as intentional misrepresentation)
- Block v. Neal, 460 U.S. 289 (1983) (misrepresentation exception applies when claim’s essence is misinformation on which plaintiff relied)
- United States v. Shearer, 473 U.S. 52 (1985) (discussion of Congress’s intent that government not be financially responsible for assaults and batteries)
- Stonacek v. City of Lincoln, 279 Neb. 869 (2010) (under similar Political Subdivisions Tort Claims Act language, failure to communicate relevant information is a misrepresentation barred by immunity)
- Fuhrman v. State, 265 Neb. 176 (2003) (distinguished and disapproved in part by the court here for suggesting complete nondisclosure without deliberate inference falls outside misrepresentation exception)
- Johnson v. State, 270 Neb. 316 (2005) (negligence claims that arise from intentional torts are barred where the claim stems from the intentional act)