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Doe v. Scottsbluff Public Schools District No. 32

United States District Court, D. Nebraska

February 7, 2019

JANE DOE, Plaintiff,
v.
SCOTTSBLUFF PUBLIC SCHOOLS DISTRICT NO. 32, et al., Defendants.

          ORDER AND CERTIFIED QUESTION

          John M. Gerrard Chief United States District Judge

         The plaintiff, "Jane Doe," contends that she was injured by the negligence of the Scottsbluff Public Schools, District No. 32. The School District argues that her negligence claim is time-barred, but its argument depends on a question of Nebraska statutory interpretation that the Court will certify to the Nebraska Supreme Court pursuant to Neb. Rev. Stat. § 24-219 et seq.

         STATEMENT OF FACTS

         From 2007-2011, Doe was a student and competitive golfer at Scottsbluff Senior High School. Filing 86 at 3. In the fall of her freshman year, Doe's high school golf coach, Michael Klein, began sexually abusing her. Filing 86 at 13. Doe alleges that she was sexually assaulted beginning in November 2007, when she was 14 years old and Klein was over 25 years old. See Neb. Rev. Stat.§ 28-319.01(1)(b).[1]

         Klein's abuse of Doe allegedly continued on a weekly basis for the next three years. Filing 86 at 13. In particular, Doe alleges that Klein used his position as Doe's coach to perpetuate his abuse--abusing Doe at practice facilities, on school grounds, and on school-sanctioned golf trips. Filing 86 at 15-16. So, Doe alleges, the abuse resulted in part from the negligence of the School District. Filing 86 at 22.

         The School District moved to dismiss Doe's negligence claim. In part, the School District contends that Doe's claim is time-barred because Doe did not provide written notice of a tort claim to the School District, or commence her lawsuit, until November 22, 2017-more than 2 years after her 21st birthday. Filing 92 at 2-9. Accordingly, the School District concludes that Doe's negligence claim is time-barred under the Political Subdivision Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq. (PSTCA).[2]

         NATURE OF CONTROVERSY

         The School District is a political subdivision of the State of Nebraska, and "[e]very claim against a political subdivision permitted under the [PSTCA] shall be forever barred unless within one year after such claim accrued the claim is made in writing to the governing body." § 13-919(1). Further, if a claim is made and then disposed of or withdrawn, the claimant must file suit within 6 months. Id.; see also §§ 13-919(2) and (3). That statute of limitations is tolled by the minority of the claimant. See § 13-919(5); Neb. Rev. Stat. § 25-213. But it is expressly exclusive: by its terms, § 13-919 and § 25-213 "shall be the only statutes of limitations applicable to tort claims" as defined in the PSTCA. § 13-919(5).

         Conversely, Doe relies on Neb. Rev. Stat. § 25-228, which provides in relevant part that

[n]otwithstanding any other provision of law . . . an action against any person or entity other than the individual directly causing an injury or injuries suffered by a plaintiff when the plaintiff was a victim of a violation of section 28-319.01 or 28-320.01 may only be brought within twelve years after the plaintiff's twenty-first birthday.

§ 25-228(1)(b) (emphasis added). So, under § 25-228, the statute of limitations for a civil claim based on injuries that occurred when the plaintiff was a victim of § 28-319.01(1)(b) is 12 years following the plaintiff's 21st birthday.

         Both § 13-919 and § 25-228 purport to be exclusive: § 13-919(5) expressly provides that it (and the relevant tolling provision) are "the only statutes of limitations" applicable to tort claims under the [PSTCA], but § 25-228(1) purports to provide the statute of limitations for claims arising out of sexual assault of a child "[n]otwithstanding any other provision of law."

         In other words, the School District's argument that Doe's negligence claim is time-barred under the PSTCA involves reconciling two statutory provisions that appear to be in direct conflict. The Court finds no controlling precedent in the decisions of the Nebraska Supreme Court. See ยง 24-219. So, to resolve the conflict, the ...


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