Joshua M. v. State

1

316 Neb. 446

Joshua M. et al., appellants, v. State of Nebraska et al., appellees

No. S-21-1037

Supreme Court of Nebraska

May 3, 2024

1. Tort Claims Act: Appeal and Error. Whether a claim is precluded by an exemption under the State Tort Claims Act presents a question of law.

2 Jurisdiction. Subject matter jurisdiction is a question of law.

3. ___. When a jurisdictional question does not involve a factual dispute, the issue is a matter of law.

4. Judgments: Appeal and Error. An appellate court reviews questions of law independently of the lower court's conclusion.

5. Immunity. Under the common-law doctrine of sovereign immunity, a state's immunity from suit is recognized as a fundamental aspect of sovereignty.

6. Jurisdiction: Immunity. The doctrine of sovereign immunity is, by its nature, jurisdictional, and presents a question of subject matter jurisdiction that courts cannot ignore.

7 Jurisdiction. Questions regarding a court's subject matter jurisdiction should be resolved as a threshold matter before an examination of the merits.

8. Constitutional Law: Legislature: Immunity. The sovereign immunity of the State and its political subdivisions is preserved in Neb. Const. art. V, § 22 and this constitutional provision permits the State to lay its sovereignty aside and consent to be sued on such terms and conditions as the Legislature may prescribe.

9. ___ ___: ___. Because Neb. Const. art. V, § 22, is not self executing, no suit may be maintained against the State or its political subdivisions unless the Legislature, by law, has so provided.

10. Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action waiving sovereign immunity, a trial court lacks subject matter jurisdiction over an action against the State.

11. Constitutional Law: Legislature: Claims. The authority to determine which claims can be brought against the State, and which cannot, is a power the Nebraska Constitution expressly placed in the legislative branch.

12. Courts: Immunity: Waiver: Equity. The judiciary does not have the power to waive sovereign immunity regardless of the equities of the case.

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

14. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity: Waiver. Both the State Tort Claims Act and the Political Subdivisions Tort Claims Act contain exemptions to the limited waiver of sovereign immunity, and those exemptions describe the types of tort claims for which the State and its political subdivisions retain sovereign immunity.

15. Political Subdivisions Tort Claims Act: Tort Claims Act: Dismissal and Nonsuit: Jurisdiction: Immunity: Waiver. When a claim falls within an exemption under the State Tort Claims Act or the Political Subdivisions 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.

16. Statutes: Immunity: Waiver. Statutes purporting to waive the protection of sovereign immunity are to be strictly construed in favor of the sovereign and against waiver.

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

18. Political Subdivisions Tort Claims Act: Tort Claims Act: Assault. Because the exemption for claims arising out of assault or battery is the same under the State Tort Claims Act and the Political Subdivisions Tort Claims Act, cases construing the State Tort Claims act exemption are applicable to cases construing the Political Subdivisions Tort Claims Act exemption and vice versa.

19. ___: ___: ___. Under the State Tort Claims Act and the Political Subdivisions Tort Claims Act, a plaintiff cannot avoid the reach of the exemption for any claim arising out of assault or battery by framing his or her complaint in terms of negligent failure to prevent the assault and battery. The exemption does not merely bar claims for assault or battery; in sweeping language, it excludes any claim arising out of assault or battery.

20. ___: ___: ___. Under the State Tort Claims Act and the Political Subdivisions Tort Claims Act, the exemption for claims arising out of assault or battery applies whenever an assault is essential to the claim, and it bars claims against the government which sound in negligence but stem from an assault or battery.

21. ___: ___: ___. Under the State Tort Claims Act and the Political

Subdivisions Tort Claims Act, the exemption for claims arising out of assault or battery encompasses claims that would not exist without an assault or battery and claims that are inextricably linked to an assault or battery.

22. Political Subdivisions Tort Claims Act: Tort Claims Act: Assault: Damages. No matter how a tort claim against the government is framed, and regardless of the assailant's employment status, when a claim seeks to recover damages for personal injury or death stemming from an assault or battery, it necessarily arises out of assault or battery and is barred by the exemption for claims arising out of assault or battery under the State Tort Claims Act and the Political Subdivisions Tort Claims Act.

Appeal from the District Court for Richardson County: Julie D. Smith, Judge. Affirmed in part, and in part vacated and remanded with directions.

Diana J. Vogt and James L. Schneider, of Sherrets, Bruno & Vogt, L.L.C., for appellants.

Douglas J. Peterson, Attorney General, and Christopher A. Felts for appellee State of Nebraska.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Strong and Smith, District Judges.

PER CURIAM.

This is an appeal under the State Tort Claims Act (STCA),^[1] and the threshold jurisdictional issue is whether the plaintiffs' claims fall within the scope of the STCA's exemption for "[a]ny claim arising out of assault [or] battery"^[2] and thus are barred by the State's sovereign immunity. Our cases have sometimes been inconsistent in construing and applying this exemption, and this appeal highlights inconsistency between our 1977 opinion in Koepf v. County of York^[3] and our 2020 opinion in Moser v. State.^[4] We discuss the reasoning and holding of both cases later in our analysis.

The facts of this case are undeniably tragic. In 2015, three siblings who spent much of their youth in the Nebraska foster care system filed suit against their former foster parent for intentional assault and battery, alleging the foster parent physically and sexually assaulted them. In the same action, the siblings sued the State of Nebraska and the Nebraska Department of Health and Human Services (collectively DHHS) under the STCA, alleging DHHS was negligent in recommending and supervising their placement and in failing to remove them from such placement when DHHS knew or should have known they were being physically and sexually abused. In presenting these tort claims against DHHS, the siblings generally relied on the reasoning and holding of Koepf.

In 2021, the action was tried to the bench. After the siblings presented their case in chief, DHHS moved for a directed verdict on the ground of sovereign immunity, relying on Moser to argue that the siblings' claims fell within the STCA's exemption for "[a]ny claim arising out of assault [or] battery."^[5] The district court rejected DHHS' jurisdictional argument based on Moser and concluded that Koepf remained the controlling law as to the siblings' tort claims against DHHS.

At the conclusion of trial, the court entered judgment in favor of the siblings and against their former foster parent in the collective sum of $2.9 million. But the court found the evidence was insufficient to prove DHHS breached its duty of care to the siblings and thus entered judgment in favor of DHHS. The siblings appeal, challenging only the entry of judgment in favor of DHHS.

We moved this appeal to our docket on our own motion to address the tension between Koepf and Moser as it regards the proper construction and application of the STCA exemption for "[a]ny claim arising out of assault [or] battery."^[6] As we will explain, the siblings' negligence claims against DHHS fall squarely within the STCA's exemption for claims arising out of assault or battery and thus are barred by sovereign immunity. We must therefore vacate the judgment of the district court as to DHHS and remand the cause with directions to dismiss that defendant only. In all other respects, the district court's judgment is affirmed.

I. BACKGROUND

Siblings Joshua M., Sydnie M., and Abigail S. were born between 1992 and 1995. In September 1995, their biological parents were involved in a serious car accident that left their mother severely disabled and unable to care for them. At the time, their father was deemed an unfit parent due to active alcoholism and instability in both employment and housing. As such, the county attorney of Richardson County, Nebraska, filed petitions alleging the siblings were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015). The siblings were adjudicated and became wards of DHHS in January 1996.

Joshua and Sydnie, who were toddlers at the time, were placed in foster care with Miles Ruch, Sr., and his wife, Carol Ruch. Abigail, then an infant, was initially placed in a different foster home, but joined her siblings in the Ruch home in June 1996. From 1996 to 1999, the siblings resided with the Ruchs as foster children. The Ruchs were appointed legal guardians for the siblings in 19...