Amie L. Rutledge, appellant,
City of Kimball, a political subdivision of the State of Nebraska, appellee.
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.
Political Subdivisions Tort Claims Act.
Whether the allegations made by a plaintiff present a claim
that is precluded by exemptions set forth in the Political
Subdivisions Tort Claims Act is a question of law.
Political Subdivisions Tort Claims Act: Appeal and
Error. An appellate court has an obligation to reach
its conclusion on whether a claim is precluded by exemptions
set forth in the Political Subdivisions Tort Claims Act
independent from the conclusion reached by the trial court.
Political Subdivisions Tort Claims Act. The
Political Subdivisions Tort Claims Act governs claims made
against a political subdivision when the claim is based upon
acts or omissions of an employee occurring within the scope
Political Subdivisions Tort Claims Act: Immunity:
Waiver. The Political Subdivisions Tort Claims Act
allows a limited waiver of a political subdivision's
sovereign immunity with respect to certain, but not all,
types of tort actions.
Political Subdivisions Tort Claims Act: Immunity:
Waiver: Intent: Words and Phrases. Neb. Rev. Stat.
§ 13-910 (Reissue 2012) sets forth specific claims that
are exempt from the waiver of sovereign immunity, including
any claim arising out of assault, battery, false arrest,
false imprisonment, malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference
with contract rights. This is sometimes referred to as the
"intentional torts exception."
Neb. 594] 7. Tort Claims Act: Public
Officers and Employees: Immunity: Intent:
Tort-feasors. Under the intentional torts exception,
the State is immune from suit when the tort claim is based on
the mere fact of government employment (such as a respondeat
superior claim) or on the employment relationship between the
intentional tort-feasor and the government (such as a
negligent supervision or negligent hiring claim).
Political Subdivisions Tort Claims Act: Negligence:
Liability: Damages. When conduct arises out of a
battery, it falls within the exception of Neb. Rev. Stat.
§ 13-910(7) (Reissue 2012), and the political
subdivision is not liable for damages resulting from the
battery, even when the pleaded conduct is characterized or
framed as negligence.
Negligence: Damages: Proximate Cause. In
order to prevail in a negligence action, a plaintiff must
establish the defendant's duty to protect the plaintiff
from injury, a failure to discharge that duty, and damages
proximately caused by the failure to discharge that duty.
Negligence. The threshold issue in any
negligence action is whether the defendant owes a legal duty
to the plaintiff.
Negligence: Liability. There is no duty to
control the conduct of a third person so as to prevent him or
her from causing physical harm to another, unless a special
relation exists between the actor and the third person which
imposes a duty upon the actor to control the third
___: ___. When a special relationship exists, an actor in
that relationship owes a duty of reasonable care to third
parties with regard to risks posed by the other that arise
within the scope of the relationship.
Statutes: Immunity: Waiver. Statutes that
purport to waive the protection of sovereign immunity of the
State or its subdivisions are strictly construed in favor of
the sovereign and against the waiver.
from the District Court for Kimball County: Derek C. Weimer,
R. Korth, of Reynolds, Korth & Samuelson, PC, L.L.O., for
W. Olsen and Paul W. Snyder, of Simmons Olsen Law Firm, PC,
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 595] Heavican, C.J.
case arose out of an alleged assault and battery perpetrated
by David Ford, an employee of appellee, the City of Kimball,
Nebraska (City). Appellant, Amie L. Rutledge, filed a
complaint alleging the City was negligent for failing to
supervise Ford and for failing to protect the general public
and Rutledge from Ford when the City knew or should have
known of Ford's past violent behavior, violent
propensities, and prior assaults. The district court granted
the City's motion to dismiss on the grounds that the
claim was barred by the intentional torts exception to the
Political Subdivisions Tort Claims Act (PSTCA). We affirm.
26, 2013, Rutledge filed a claim with the City for damages
incurred after its then employee, Ford, allegedly attacked
and choked her in the Kimball City Building. On August 2,
Rutledge also filed a complaint in the district court for
Kimball County against Ford for assault and battery.
her claim was denied by the City, Rutledge amended her
complaint against Ford to add the City as an additional
party. As noted above, Rutledge alleged the City was
negligent for failing to take proper measures to supervise
Ford and protect the general public and Rutledge when the
City knew or should have known of Ford's past violent
behavior, violent propensities, and prior assaults.
City filed a motion to dismiss, claiming Rutledge failed to
state a claim upon which relief could be granted. On July 8,
2014, the district court granted the City's motion after
finding the allegations against the City arose out of
Ford's alleged assault and battery and, thus, were exempt
from application of the PSTCA. On September 14, 2018,
Rutledge filed a motion to ...