Doe v. Omaha Public School Dist.

727 N.W.2d 447

273 Neb. 79

John DOE, as father and next friend of Jane Doe, a minor child, appellant, v. OMAHA PUBLIC SCHOOL DISTRICT, a political subdivision, appellee.

No. S-05-794.

Supreme Court of Nebraska.

February 16, 2007.

Maren Lynn Chaloupka, Scottsbluff, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, and K.C. Engdahl, of Ballew, Schneider, Covalt, Gaines & Engdahl, for appellant.

Kirk S. Blecha and Lindsay K. Lundholm, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, L.L.P., Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

John Doe, as father and next friend of Jane Doe, brought this action against the Omaha Public School District (OPS) under the Political Subdivisions Tort Claims Act (PSTCA), Neb.Rev.Stat. §§ 13-901 to 13-926 (Reissue 1997 & Cum.Supp.2002). OPS moved to dismiss, claiming immunity under § 13-910. The district court granted the motion and dismissed the complaint with prejudice. Doe perfected this timely appeal. We conclude the district court erred in dismissing the action and therefore reverse, and remand for further proceedings.

I. BACKGROUND

Doe alleged in his complaint that on February 26, 2004, a student identified as J.D. sexually assaulted his daughter Jane during school hours at the OPS high school they both attended. Doe alleged on information and belief that OPS "had actual knowledge that J.D. had a history of physical and/or sexual misconduct toward other students" before the purported assault but "took no steps to restrict or restrain" J.D.'s activities in order to protect other students. Doe alleged that OPS was negligent in, among other things, (1) failing to provide adequate protection to Jane from the foreseeable acts of J.D., (2) failing to follow State Department of Education rules on student safety, (3) failing to supervise school employees, (4) failing to investigate prior complaints about J.D., (5) failing to take appropriate actions with regard to J.D., and (6) maintaining an unsafe premises which enhanced the threat of and enabled criminal activity without detection on school grounds and during school hours. Doe claimed that these acts or omissions by OPS caused Jane physical injury and emotional distress, for which he sought damages on her behalf.

OPS moved to dismiss under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev.2003), claiming that Doe's complaint failed to state a claim upon which relief could be granted. In its motion, OPS asserted that as a political subdivision of the State of Nebraska, it retained immunity from suit under § 13-910 based on the fact that Doe's claims arose out of (1) an assault; (2) OPS' exercise of due care in the execution of officially adopted resolutions, regulations, and rules; and (3) OPS' exercise of discretionary functions. OPS also asserted in its motion that Doe's complaint failed to allege facts sufficient to show the negligence elements of duty, breach, and causation.

At a hearing on the motion to dismiss, both parties offered evidence which was received without objection. In a written order, the district court determined that OPS was immune from the negligence claims alleged in Doe's complaint based on the exceptions found in the PSTCA, and it therefore granted the motion to dismiss with prejudice. Doe perfected this timely appeal, and we granted his petition to bypass the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(2) (Reissue 1995).

II. ASSIGNMENT OF ERROR

Doe assigns that the district court erred in concluding that his complaint failed to state a claim upon which relief could be granted.

III. STANDARD OF REVIEW

We begin by addressing a procedural issue affecting the nature and scope of our review. Because a rule 12(b)(6) motion tests the legal sufficiency of the complaint, not the claim's substantive merits, a court may typically look only at the face of the complaint to decide a motion to dismiss. Ferer v. Erickson, Sederstrom, 272 Neb. 113, 718 N.W.2d 501 (2006). Dismissal under rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Johnson v. Johnson, 272 Neb. 263, 720 N.W.2d 20 (2006); Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005). An appellate court reviews de novo a lower court's dismissal of a complaint for failure to state a claim. Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006); Johnston v. Nebraska Dept. of Corr. Servs., 270 Neb. 987, 709 N.W.2d 321 (2006). When analyzing a lower court's dismissal of a complaint for failure to state a claim, an appellate court accepts the complaint's factual allegations as true and construes them in the light most favorable to the plaintiff. Id.

However, rule 12(b) provides that when matters outside of the pleadings are presented by the parties and accepted by the trial court with respect to a motion to dismiss under rule 12(b)(6), the motion "shall be treated" as a motion for summary judgment as provided in Neb.Rev. Stat. §§ 25-1330 to 25-1336 (Reissue 1995 & Cum.Supp.2006) and the parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute. See, Crouse v. Pioneer Irr. Dist., 272 Neb. 276, 719 N.W.2d 722 (2006); Wise v. Omaha Public Schools, 271 Neb. 635, 714 N.W.2d 19 (2006). Our review of an order granting a motion for summary judgment is not restricted to the allegations of the complaint, but instead requires that we determine whether the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. See, Ferer v. Erickson, Sederstrom, supra; Wise v. Omaha Public Schools, supra.

As a threshold matter, we must determine whether we are reviewing a ruling on a motion to dismiss or a ruling on a motion for summary judgment. Because Nebraska's current notice pleading rules are modeled after the Federal Rules of Civil Procedure, we look to federal decisions for guidance. See Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574 (2005). Federal courts have recognized that when receiving evidence which converts a motion to dismiss into a motion for summary judgment, it is important for the trial court to "give the parties notice of the changed status of the motion and a `reasonable opportunity to present all material made pertinent to such a motion'" by the rules governing summary judgment. 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 at 188 (3d ed.2004). See, e.g., Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d 1001 (8th Cir. 2000). We agree with and adopt this principle.

In this case, the trial court did not indicate that its receipt of evidence converted the motion to one for summary judgment, and neither party contends that a conversion occurred. We have recently held that a court may take judicial notice of matters of public record without converting a rule 12(b)(6) motion to dismiss into a motion for summary judgment. In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007); Ferer v. Erickson, Sederstrom, 272 Neb. 113, 718 N.W.2d 501 (2006). The exhibit offered by OPS and received by the district court without objection purports to include copies of public records, including the "Omaha Public Schools Nondiscrimination Policy" and the "Omaha Public Schools, 2003-2004 Student Code of Conduct." The exhibits offered by Doe and received without objection consist of copies of motions purportedly filed by OPS in an action brought by Doe in the U.S. District Court for the District of Nebraska and copies of discovery requests which Doe served on OPS in this action. Although the district court did not specifically take judicial notice of these exhibits in receiving them, we assume without deciding that it could have done so.

In any event, the evidence offered by OPS did not directly address the factual allegations of Doe's complaint and therefore did not establish the absence of a genuine issue of material fact. On the record before us, OPS would be entitled to prevail only if the district court correctly concluded that the complaint failed to state a claim upon which relief could be granted. Accordingly, we apply the standard of review applicable to orders granting motions to dismiss, as set forth above. See, Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006); Johnston v. Nebraska Dept. of Corr. Servs., 270 Neb. 987, 709 N.W.2d 321 (2006).

IV. ANALYSIS

1. DOE'S PRIMA FACIE CASE

The district court did not specifically address the question of whether Doe's complaint alleged a prima facie case. As an alternative ground for affirmance, OPS argues that it did not. We deem it necessary to address this potentially dispositive issue.

The PSTCA eliminates, in part, the traditional immunity of political subdivisions for the negligent acts of their employees. Talbot v. Douglas County, 249 Neb. 620, 544 N.W.2d 839 (1996). Except as otherwise provided, in all suits brought under the PSTCA, "the political subdivision shall be liable in the same manner and to the same extent as a private individual under like circumstances." § 13-908. Public school districts are political subdivisions for purposes of the PSTCA. See § 13-903(1).

As noted above, Doe's complaint asserts a personal injury claim based upon allegations of negligence imputed to OPS, a political subdivision. A negligence action brought under the PSTCA has the same elements as a negligence action against a private individual, i.e., duty, breach of duty, causation, and damages. Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697 (2001); Brandon v. County of Richardson, 252 Neb. 839, 566 N.W.2d 776 (1997). A...