Barber v. State

1

316 Neb. 398

RaySean Barber, appellant, v. State of Nebraska, appellee.

No. S-23-627

Supreme Court of Nebraska

April 19, 2024

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Tort Claims Act: Appeal and Error. Whether the allegations made by a plaintiff constitute a cause of action under the State Tort Claims Act, Neb. Rev. Stat §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum Supp. 2022), or whether the allegations set forth claims which are precluded by the exemptions set forth in the act is a question of law, for which an appellate court has a duty to reach its conclusions independent of the conclusions reached by the district court.

3. Tort Claims Act: Legislature: Immunity Waiver. Through the enactment of the State Tort Claims Act, the Legislature has waived sovereign immunity with respect to some, but not all, types of tort claims.

4. Tort Claims Act: Immunity: Waiver. The State Tort Claims Act contains exemptions to the limited waiver of sovereign immunity, and those exemptions describe the types of tort claims for which the State retains sovereign immunity.

5. Tort Claims Act: Immunity: Waiver: Jurisdiction Dismissal and Nonsuit. When a claim falls within an exemption under the State Tort Claims Act, sovereign immunity for the claim has not been waived and the proper remedy is to dismiss the claim for lack of subject matter jurisdiction.

6. Statutes: Waiver: Immunity. In order to strictly construe statutes against a waiver of sovereign immunity, courts must read statutory exemptions from a waiver of sovereign immunity broadly.

7. Tort Claims Act: Battery: Liability. When deciding whether conduct falls within the statutory exemption for any claim arising out of battery under the State Tort Claims Act, it is only necessary to determine whether the conduct arises out of a battery, and courts need not determine whether the actor ultimately could be held liable for any damage resulting from the battery, based on the presence or absence of affirmative defenses.

8. Battery: Malpractice: Physician and Patient. Although some medical malpractice claims involve batteries, not all do.

9. Torts: Battery: Words and Phrases. Battery is defined as the actual infliction of unconsented injury upon or unconsented contact with another.

10. Torts: Battery: Malpractice: Physician and Patient. Nebraska courts distinguish batteries committed by a physician from claims of medical malpractice. Battery actions in the medical context are limited to situations where the physician did not gain consent for his or her actions or greatly exceeded the scope of that consent, e.g., operating on the wrong limb.

11. Torts: Battery. Consent to a medical procedure defeats a battery claim.

12. Torts: Words and Phrases. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.

13. Torts: Battery. Consent for medical treatment need not be express in order to defeat a battery claim, and implied consent may be inferred from the patient's action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment.

14. Torts: Battery: Malpractice: Physician and Patient. Generally, when plaintiffs assert that a physician provided medical treatment without their express or implied consent, they present a claim of battery. And when plaintiffs assert that a physician acted beyond the scope of any express or implied consent when providing medical treatment, they present an issue of informed consent properly addressed as a medical malpractice claim.

15. Tort Claims Act: Immunity: Complaints. To determine whether a claim falls within the exemption for claims arising out of assault or battery, Nebraska courts apply the "gravamen" of the complaint test.

16. Complaints: Words and Phrases. The "gravamen" of a complaint is the substantial point or essence of a claim, grievance, or complaint, and it is found by examining and construing the substance of the allegations of the complaint as a whole without regard to the form or label adopted by the pleader or the relief demanded.

17. Tort Claims Act: Assault: Battery. A claim arises out of an assault or battery for purposes of Neb. Rev. Stat. § 81-8,219(4) (Cum. Supp. 2022) if the claim stems from, arises out of, is inextricably linked to, is essential to, or would not exist without the assault or battery.

18. ____: ____: ____. When a tort claim against the government seeks to recover damages for personal injury stemming from an assault or battery, the claim necessarily arises out of assault or battery and is barred by the intentional tort exemption under the State Tort Claims Act.

Appeal from the District Court for Douglas County: Tressa M. Alioth, Judge.

RaySean Barber, pro se.

Michael T. Hilgers, Attorney General, Eric J. Hamilton, and Zachary B. Pohlman for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Harder, District Judge.

STACY J.

RaySean Barber appeals from an order dismissing his negligence action against the State of Nebraska. He sued the State under the State Tort Claims Act (STCA),^[1] alleging that medical staff with the Nebraska Department of Correctional Services (DCS) negligently determined he was mentally ill and dangerous and obtained an involuntary medication order (IMO) authorizing monthly injections of the antipsychotic medication Haldol against his will. The State moved to dismiss Barber's complaint for lack of subject matter jurisdiction pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1), arguing the claim was barred by the STCA's exemption for "[a]ny claim arising out of . . . battery."^[2] The district court agreed and dismissed the complaint, reasoning that "[n]o semantic recasting of the events can alter the fact that the unconsented and involuntary injection . . . is the cause of Barber's alleged injury-a battery." We agree that Barber's claim falls within the exemption and affirm.

BACKGROUND

The factual record in this appeal is limited to the allegations of Barber's complaint, which, at this stage of the proceedings, we accept as true.^[3] Those allegations, and the reasonable inferences therefrom, indicate that while Barber was an inmate in the custody of DCS, he was diagnosed with "schizoaffective disorder, bipolar type, multiple episodes, currently in acute episode." He refused treatment with antipsychotic medications, prompting DCS medical staff to apply for a series of IMOs pursuant to DCS administrative procedures. According to the complaint, those procedures required DCS staff to conduct a mental health evaluation before applying for an IMO and also required a showing that Barber was mentally ill and dangerous.

In November 2019, a hearing was held on the initial IMO application before a committee of three DCS psychiatric staff. A mental health practitioner employed by DCS was appointed to represent Barber at the hearing. The committee found that Barber met the criteria for issuance of the IMO. Barber appealed the committee's decision to the director of DCS, who upheld it. Thereafter, approximately every 6 months for the next 3 years, DCS medical staff followed a similar process to apply for and receive another IMO. As a result of the IMOs, Barber was injected with Haldol once a month for 3 years during his incarceration, against his will.

COMPLAINT

In March 2023, Barber filed what he describes as a medical malpractice action against the State under the STCA. His complaint alleged that DCS employees were negligent in "applying for, ordering the initiation and continuation of, and upholding" the IMOs and that DCS medical staff "failed to adhere to medical standards" when determining he was mentally ill and dangerous.

Barber alleges that as a "proximate result of the IMO," he suffered physical, mental, and emotional damages. The complaint also alleges the IMOs prevented him from participating in work release programs and required him to take other "potentially dangerous" medications to control "the side effects of the Haldol that he was injected with." Barber seeks monetary damages of $2.5 billion and "treble damages for the gross conduct of the officials."

Motion to Dismiss and District Court Order

The State moved to dismiss Barber's complaint pursuant to § 6-1112(b)(1), asserting the claim was barred by sovereign immunity because it fell within the exemption in § 81-8,219(4) for "[a]ny claim arising out of battery." After a hearing, the district court agreed and entered an order granting the State's motion and dismissing Barber's complaint with prejudice.

The court's order recited the rule that exemptions to the STCA must be read broadly to preserve the State's limited waiver of immunity^[4] and observed that in the context of tort claims, battery is defined as "an actual infliction of an uncon-sented injury upon or unconsented contact with another."^[5]The court also noted that in the medical context, a physician's failure to obtain the patient's consent for treatment is considered a battery.^[6] The court concluded that the involuntary administration of medication pursuant to an IMO is, "by its nature[,] . . . treatment without consent" and thus described the "essence" of Barber's claim to be a battery, reasoning that

DCS physicians' diagnoses led to an [IMO] which prevented Barber from exercising his right to direct his medical treatment. [DCS] healthcare providers then made physical contact with Barber by executing the IMO against his wishes and consent by injecting him

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