Moser v. State
948 N.W.2d 194
Neb.2020Background
- Terry L. Berry Jr., a DCS inmate, was double-bunked on April 10, 2017 with Patrick Schroeder, a life‑sentence inmate known for a bad temper; staff were warned and Schroeder objected to the assignment.
- Five days later Schroeder strangled Berry; Berry died from asphyxia due to strangulation.
- Berry’s estate (through personal representative Telena Moser) filed an administrative claim under the State Tort Claims Act (STCA); no action was taken within six months, and Moser sued for negligence, negligence per se (violation of DCS Administrative Regulation 210.01), and wrongful death.
- The district court dismissed the complaint, concluding the discretionary‑function exception provided immunity; on appeal the State argued, and the Supreme Court considered, the intentional‑tort exception to the STCA (§ 81‑8,219(4)).
- The Nebraska Supreme Court overruled Doe v. Omaha Pub. Sch. Dist., held the intentional‑tort exception barred Moser’s claims (because the claims "arose out of" an assault), and affirmed dismissal; Justice Miller‑Lerman dissented, relying on Sheridan and related FTCA precedent to argue the negligence claim was independent and survives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 81‑8,219(4) (intentional‑tort exception) bars the suit | Moser: claims allege independent negligence (failure to follow mandatory regs; negligent decision to double‑bunk) distinct from the inmate assault | State: STCA excepts “any claim arising out of assault” so claims that flow from an assault are barred | Court: Exception applies; claims arise out of the assault and are barred; Doe overruled |
| Whether negligence claims premised on antecedent governmental acts survive the exception | Moser: antecedent negligence (failure to follow AR 210.01, known risks) creates an independent cause of action | State: but‑for the assault there is no claim; the claims are inextricably linked to an assault | Court: rejects independent‑duty framing here; negligence flows from the assault and is barred |
| Scope of "arising out of" language and standard of construction | Moser: invoke Sheridan and FTCA line allowing negligence claims independent of assaults by nongovernmental actors | State: statutes waiving sovereign immunity are strictly construed; exceptions read broadly in favor of immunity | Court: gives plain meaning to "arising out of," reads exceptions broadly, enforces immunity; emphasizes strict construction in favor of the State |
| Whether prior precedent (Doe) controls | Moser: Doe permits suit where negligence is independent from assailant’s act | State: urges consistency with other Nebraska cases interpreting "arising out of" broadly | Court: overrules Doe as inconsistent with earlier line of cases (Johnson, Britton, Jill B.) and affirms immunity |
Key Cases Cited
- Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005) (held intentional‑tort exception bars claims tied to assaults by government employees)
- Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007) (held negligent‑failure‑to‑protect claim could proceed despite student assault; overruled)
- Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011) (application of "arising out of" language where battery was immediate cause; immunity found)
- Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017) (strict construction of STCA waivers; broad reading of exceptions)
- Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019) (applied intentional‑tort exception where assailant was a governmental employee)
- Sheridan v. United States, 487 U.S. 392 (1988) (FTCA precedent allowing negligence claims for government's antecedent negligence despite intervening assault)
- Muniz v. United States, 374 U.S. 150 (1963) (FTCA context: government negligence allowing inmate assaults)
- Panella v. United States, 216 F.2d 622 (2d Cir. 1954) (FTCA legislative history construing assault exception as addressing government employees)