Moser v. State
307 Neb. 18
| Neb. | 2020Background:
- Terry L. Berry Jr., a DCS inmate, was double-bunked on April 10, 2017 with Patrick W. Schroeder, a life‑sentenced inmate known for a bad temper; Schroeder strangled Berry five days later, and Berry died.
- Berry’s personal representative, Telena Moser, filed an administrative claim under the State Tort Claims Act (STCA); after six months without action she sued alleging negligence, negligence per se (violation of DCS Admin. Reg. 210.01), and wrongful death.
- The State moved to dismiss asserting STCA immunity under the discretionary‑function exception; the district court granted dismissal on that ground.
- On appeal the State additionally argued the STCA’s intentional‑tort exception (§ 81‑8,219(4)) barred suit; the Nebraska Supreme Court considered that argument and whether to revisit Doe v. Omaha Pub. Sch. Dist.
- The Supreme Court overruled Doe, held the STCA intentional‑tort exception applies where the claim “arises out of” an assault or battery, and affirmed dismissal on that basis; Justice Miller‑Lerman dissented, arguing Sheridan and related federal precedent permit negligence claims based on independent government duties.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 81‑8,219(4) (intentional‑tort exception) bar Moser’s negligence/wrongful‑death claims? | Moser: her negligence claims are based on antecedent, independent breaches of duty (failure to follow regs/ protect inmate) and do not "arise out of" the assault. | State: the complaint admits Berry was assaulted; under a broad reading of "arising out of," the claims flow from the assault and are barred. | Held: § 81‑8,219(4) bars the suit—claims that would not exist but for the assault "arise out of" the assault and are exempt from waiver. |
| Can Doe v. Omaha Pub. Sch. Dist. (allowing negligence claims despite a nongovernmental assailant) control? | Moser: Doe controls; it follows Sheridan and permits independent negligence claims against government for failing to prevent foreseeable violence by non‑employees. | State: Doe is inconsistent with the court’s broader precedent and strict‑construction rule; it should be overruled. | Held: Doe overruled as inconsistent; court returns to broader "arising out of" construction favoring immunity. |
| Were the STCA’s waivers/exceptions to be strictly construed in favor of the State? | Moser: strict construction should not defeat meritorious negligence claims grounded in independent duties and regulatory violations. | State: waivers are in derogation of sovereignty and must be strictly construed; exceptions read broadly. | Held: Statutory waivers strictly construed for the State; exceptions construed broadly—supports immunity here. |
| Was the discretionary‑function exception separately dispositive? | Moser: alleged mandatory regulations and operational decisions defeat discretionary‑function immunity. | State: discretionary‑function was argued below and found by the district court. | Held: Majority affirmed dismissal on intentional‑tort grounds and did not decide discretionary‑function arguments. |
Key Cases Cited
- Sheridan v. United States, 487 U.S. 392 (1988) (FTCA holding that negligence claims based on independent governmental duties may survive the FTCA intentional‑tort bar)
- Johnson v. State, 270 Neb. 316 (2005) (STCA intentional‑tort exception applied where government employee committed assault)
- Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79 (2007) (previously allowed negligence claim against political subdivision for failure to prevent foreseeable student assault; overruled)
- Britton v. City of Crawford, 282 Neb. 374 (2011) (broad "arising out of" reading barred claim tied inextricably to an officer’s battery)
- Jill B. & Travis B. v. State, 297 Neb. 57 (2017) (strict construction of STCA waivers; exceptions interpreted broadly)
- Rutledge v. City of Kimball, 304 Neb. 593 (2019) (applied intentional‑tort exception where assailant was a governmental employee)