United States District Court, D. Nebraska
ORDER AND CERTIFIED QUESTION
M. Gerrard Chief United States District Judge
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.
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.§
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.
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).
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or withdrawn, the claimant must file suit within 6 months.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).
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.
§ 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
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 § 24-219. So, to resolve the conflict, the