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Rutledge v. City of Kimball

Supreme Court of Nebraska

December 6, 2019

Amie L. Rutledge, appellant,
v.
City of Kimball, a political subdivision of the State of Nebraska, appellee.

         1. 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.

         2. 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.

         3. 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.

         4. 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 of employment.

         5. 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.

         6. 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."

         [304 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).

         8. 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.

         9. 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.

         10. Negligence. The threshold issue in any negligence action is whether the defendant owes a legal duty to the plaintiff.

         11. 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 person's conduct.

         12. ___: ___. 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.

         13. 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.

          Appeal from the District Court for Kimball County: Derek C. Weimer, Judge.

          James R. Korth, of Reynolds, Korth & Samuelson, PC, L.L.O., for appellant.

          Steven W. Olsen and Paul W. Snyder, of Simmons Olsen Law Firm, PC, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

         [304 Neb. 595] Heavican, C.J.

         INTRODUCTION

         This 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.

         BACKGROUND

         On July 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.

         After 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.

         The 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 ...


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