Williams v. State

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03/14/2022 08:08 AM CDT




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                                        310 Nebraska Reports
                                                 WILLIAMS v. STATE
                                                 Cite as 

                                        Cameron Williams, appellant,
                                            v. State of Nebraska
                                               et al., appellees.
                                                    ___ N.W.2d ___

                                        Filed December 17, 2021.   No. S-20-604.

                 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 rea-
                    sonable inferences in favor of the nonmoving party.
                 2. Tort Claims Act: Appeal and Error. Whether the allegations made by
                    a plaintiff constitute a cause of action under the State Tort Claims Act,
                    

,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
                    2020), or whether the allegations set forth claims which are precluded
                    by the exemptions set forth in the act is a question of law, for which an
                    appellate court has a duty to reach its conclusions independent of the
                    conclusions reached by the district court.
                 3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
                    late court reviews a district court’s denial of a motion to amend under
                    Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an
                    appellate court reviews de novo any underlying legal conclusion that the
                    proposed amendments would be futile.
                 4. Jurisdiction. Whether a court has subject matter jurisdiction is a thresh-
                    old issue.
                 5. Tort Claims Act: Legislature: Immunity: Waiver. Through the State
                    Tort Claims Act, 

,209 to 81-8,235 (Reissue 2014
                    & Cum. Supp. 2020), the Nebraska Legislature has enacted a limited
                    waiver of the State’s sovereign immunity with respect to some, but not
                    all, types of tort claims.
                 6. Political Subdivisions Tort Claims Act: Tort Claims Act: Appeal
                    and Error. Because the language of the intentional tort exception is
                    nearly identical under both 

(7) (Cum. Supp.
                    2020) of the Political Subdivisions Tort Claims Act and Neb. Rev. Stat.
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                            WILLIAMS v. STATE
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    § 81-8,219(4) (Cum. Supp. 2020) of the State Tort Claims Act, Nebraska
    appellate courts have applied cases construing the exception under the
    Political Subdivisions Tort Claims Act to cases under the State Tort
    Claims Act, and vice versa.
 7. Motions to Dismiss: Pleadings. When a court grants a motion to dis-
    miss, a party should be given leave to amend absent undue delay, bad
    faith, unfair prejudice, or futility of amendment. But leave should not be
    granted when it is clear that the defect cannot be cured by amendment.
 8. Pleadings. Where leave to amend a complaint is sought before discov-
    ery is complete and before a motion for summary judgment has been
    filed, leave to amend should be denied as futile only if the proposed
    amendment cannot withstand a motion to dismiss under Neb. Ct. R.
    Pldg. § 6-1112(b).
 9. Motions to Dismiss: Pleadings. Ordinarily, a district court must con-
    sider and rule on a pending motion to amend before ruling on a motion
    to dismiss.

  Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
  Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for
appellant.
  Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellees.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Per Curiam.
                      NATURE OF CASE
   Cameron Williams appeals the dismissal of this negligence
action by the district court for Lancaster County. The claim
was brought against the State pursuant to Nebraska’s State Tort
Claims Act (STCA), 

,209 to 81-8,235
(Reissue 2014 & Cum. Supp. 2020). Williams is an inmate
in the custody of the Nebraska Department of Correctional
Services (DCS). Williams claims the State was negligent in its
handling of security when, despite requirements of a “‘keep
separate’” list, the State placed inmate Jonathan Armendariz,
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                           WILLIAMS v. STATE
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who had killed Williams’ brother, in Williams’ housing unit.
Fearing for his safety, Williams assaulted Armendariz, and in
retaliation, Williams was later stabbed in his cell.
   Applying the intentional tort exception to the STCA, the
district court concluded that the State was immune and granted
the State’s motion to dismiss Williams’ negligence claim based
on lack of subject matter jurisdiction. The district court further
found that amendment would be futile because the claims are
inextricably linked to “at least one assault and/or battery” and
therefore denied Williams’ motion to amend his complaint.
Williams appeals.
   Under settled precedent interpreting the intentional tort
exception of the STCA, the State is immune from Williams’
claims because they arise out of an assault. We affirm the judg-
ment of the district court.
                    STATEMENT OF FACTS
   For purposes of this appeal from the granting of a motion
to dismiss, our factual record consists only of the allegations
in the complaint, which at this stage of the proceedings are
accepted as true. 1
   Williams’ complaint alleges he was an inmate in DCS cus-
tody when Armendariz was placed in DCS custody. Armendariz
had murdered Williams’ brother, and when Armendariz began
serving a sentence in 2011, Williams’ mother was assured that
in order to ensure Williams’ safety, Armendariz would not
be placed in the same facility as Williams. DCS was aware
that Armendariz and other prisoners associated with him, or
acting on his behalf, including one or more “‘safety threat
groups’” or “‘gangs,’” posed a threat to Williams’ safety. DCS
placed Armendariz on Williams’ central-monitoring list, which
designated the inmates whom DCS should “keep separate”
from him.
   Williams was housed at Tecumseh State Correctional
Institution (TSCI) from 2013 until 2018. During the summer
1
    See Brown v. State, 

, 

 (2020).
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                       WILLIAMS v. STATE
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of 2017, despite the identified risks to Williams, Armendariz
was transferred to TSCI’s restrictive housing unit, otherwise
referred to as the “Special Management Unit” (SMU). Neither
Williams nor his mother was informed until October 2017
of Armendariz’ presence at TSCI. When they learned that
Armendariz was at TSCI, Williams and his mother warned
the State and requested protection and a transfer of Williams
from TSCI. Williams’ mother requested that TSCI separate
Armendariz and Williams immediately. The warden of TSCI
told Williams’ mother that Williams was at no risk because
Armendariz was being housed in the SMU for disciplinary rea-
sons and was separate from Williams, who was in the general
population unit.
   Williams then contacted Scott Frakes, the director of DCS,
to alert him that the central monitoring “keep separate” restric-
tion was being violated. Williams also requested a transfer
from his unit manager. Over the next several months, Williams
made repeated attempts to warn DCS and request a transfer,
but no action was taken to separate or protect Williams.
   Williams again requested a transfer during his reclassifica-
tion in March 2018. After several weeks, Williams was notified
that he had been approved to be transferred to the Nebraska
State Penitentiary (NSP). On May 10, Williams’ mother wrote
to Frakes to remind him of the danger Armendariz posed
to Williams, and she requested that the pending transfer
be expedited.
   On May 25, 2018, Armendariz was released from the SMU
and moved to the same housing unit at TSCI where Williams
was being housed. The inmates in the housing unit were free
to move around. Williams knew he would be in frequent direct
contact with Armendariz and feared being assaulted or killed.
   According to Williams, he had “no choice but to pro-
tect himself,” so Williams assaulted Armendariz, after which
Williams was placed in the SMU for 5 days. When Williams’
mother learned of the incident, she left messages with officials
at TSCI to try to expedite Williams’ transfer. She eventually
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spoke by phone with a deputy warden, who apologized for the
incident and assured her that Williams would be transferred to
NSP as soon as possible. Williams was eventually transferred
to NSP and placed in the general population.
   On September 22, 2018, two inmates entered Williams’
cell at NSP and assaulted him. Williams was stabbed multiple
times. DCS told Williams that its “‘Gang Intel’” believed the
assault was in retaliation for Williams’ attack on Armendariz
at TSCI.
   Williams filed a negligence claim under the STCA, nam-
ing as defendants the State, DCS, Frakes, and other State
actors. Williams’ complaint alleged that the defendants knew
Armendariz posed a foreseeable risk of physical harm to
Williams and negligently failed to protect Williams from that
harm. Williams alleged that as a result, he suffered “physical,
emotional, mental, and psychological injuries” and sought to
recover damages for future medical treatment, past and future
pain and suffering, past lost wages and future loss of earning
capacity, and past and future disability.
   The State moved to dismiss Williams’ complaint for lack
of subject matter jurisdiction. Before the hearing, Williams
requested leave to amend the complaint to “allege additional
facts further establishing . . . subject matter” jurisdiction of his
claims and to “articulate additional facts establishing the ele-
ments of [Williams’] negligence claim in greater detail.”
   In its written order, referring to the intentional tort exception
in the STCA, § 81-8,219(4), the district court determined that
Williams’ negligence claim was barred by sovereign immunity
because it arose from “multiple layers of assault/battery.” Next,
the district court denied Williams’ motion for leave to amend
his complaint because it concluded that allowing Williams to
amend would be futile, as all claims would be “clearly inex-
tricably linked to at least one assault and/or battery” and “thus
‘arise out of’ an assault or battery and are barred by sover-
eign immunity.”
   Williams appeals.
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                 ASSIGNMENTS OF ERROR
   Williams assigns, summarized and restated, that the district
court erred when it found that (1) Williams’ claim arises from
an assault or battery and is barred by sovereign immunity and
(2) amendment of the complaint would be futile.

                   STANDARD OF REVIEW
   [1,2] 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 Whether the allegations made
by a plaintiff constitute a cause of action under the STCA or
whether the allegations set forth claims which are precluded
by the exemptions set forth in the act is a question of law, for
which an appellate court has a duty to reach its conclusions
independent of the conclusions reached by the district court. 3
   [3] An appellate court reviews a district court’s denial of a
motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an
abuse of discretion. However, we review de novo any under-
lying legal conclusion that the proposed amendments would
be futile. 4
                         ANALYSIS
   Williams contends the district court erred when it granted
the State’s motion to dismiss and denied his motion for leave
to amend his complaint. We find no merit to Williams’ assign-
ments of error.

Motion to Dismiss.
  [4] The first issue presented is whether the intentional tort
exception to the State’s waiver of sovereign immunity under
§ 81-8,219(4) barred Williams’ claim. Because this presents
2
    Moser v. State, 

, 

 (2020).
3
    

4
    Chaney v. Evnen, 

, 

 (2020).
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a question of subject matter jurisdiction, we address it as a
threshold issue. 5
   [5,6] Through the STCA, the Nebraska Legislature has
enacted a limited waiver of the State’s sovereign immunity
with respect to some, but not all, types of tort claims. 6 The
STCA contains specific exceptions to the waiver of sover-
eign immunity. As relevant here, the intentional tort excep-
tion in § 81-8,219(4) provides that sovereign immunity is not
waived for “[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, or interference with contract rights . .
. .” Because the language of this exception is nearly identical
under both 

(7) (Cum. Supp. 2020)
of the Political Subdivisions Tort Claims Act (PSTCA) and
§ 81-8,219(4) of the STCA, we have applied cases construing
the exception under the PSTCA to cases under the STCA, and
vice versa. 7
   Our cases construing and applying the intentional tort excep-
tion have consistently barred claims like the one alleged by
Williams. In Moser v. State, 8 we applied the intentional tort
exception to bar a negligence claim brought by the estate of
a man who was fatally assaulted by a cellmate. We concluded
that the claim that prison officials had negligently double-
bunked the two inmates arose out of the assault and thus fell
within the STCA’s exception in § 81-8,219(4) for “[a]ny claim
arising out of assault.”
   In Edwards v. Douglas County, 9 we applied that same excep-
tion to bar a claim brought by a woman who was held hostage
and sexually assaulted by a former boyfriend. The woman
5
    See Lambert v. Lincoln Public Schools, 

, 

    (2020).
6
    See Moser v. State, supra note 2.
7
    Edwards v. Douglas County, 

, 

 (2021).
8
    Moser v. State, supra note 2.
9
    Edwards v. Douglas 

.
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alleged that the county was negligent in its handling of a series
of calls to the 911 emergency dispatch service, which led to a
delay in responding, and was therefore liable. We rejected that
assertion, noting that no matter how the negligence claim was
restated, it arose out of the underlying assault and fell within
the intentional tort exception of the PSTCA.
   In Britton v. City of Crawford, 10 a burglary suspect was shot
and killed during a standoff with police. The suspect’s personal
representative filed a claim against the city, alleging that law
enforcement was negligent in its tactics. We concluded that the
claim was barred by the intentional tort exception. We reasoned
that the exception not only bars claims for assault and battery,
but bars claims arising out of an assault and battery.
   For his claim, Williams’ complaint alleges that the State neg-
ligently failed to separate Williams from Armendariz and his
supporters. But the injury and damages Williams alleges plainly
arose from Williams’ preemptive assault on Armendariz, from
the retaliatory assault on Williams, and from Williams’ fear of
a potential assault on him by Armendariz. We therefore con-
clude that Williams’ negligence claim against the State is one
which arose from an assault, is barred by the intentional tort
exception to the State’s waiver of sovereign immunity under
the STCA, and was properly dismissed by the district court.
Leave to Amend.
   Williams next argues that although his claim for negligence
was dismissed, the district court erred when it denied him
leave to amend his complaint to allege, inter alia, negligent
infliction of emotional distress as a separate theory of recov-
ery. Although Williams did not offer a proposed amendment to
the district court, the parties discussed emotional damages at
the hearing. Williams suggested he would make his complaint
more specific and offer additional facts. However, the district
court found that any such amendment would be futile because
it would also arise out of “multiple layers of assault/battery”
10
     Britton v. City of Crawford, 

, 

 (2011).
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and consequently be barred by sovereign immunity under
§ 81-8,219(4).
   [7,8] When a court grants a motion to dismiss, a party should
be given leave to amend absent undue delay, bad faith, unfair
prejudice, or futility of amendment. 11 But leave should not
be granted when it is clear that the defect cannot be cured by
amendment. 12 Considering the question of whether an amend-
ment is futile, we have said: “[W]here leave to amend is sought
‘before discovery is complete and before a motion for sum-
mary judgment has been filed . . . [l]eave to amend . . . should
be denied as futile . . .’” only if the proposed amendment
cannot withstand a motion to dismiss under Neb. Ct. R. Pldg.
§ 6-1112(b)(6). 13 We apply this reasoning to dismissal for lack
of jurisdiction. 14
   Williams’ proffered amendments, including allegations of
negligent infliction of emotional distress, cannot withstand a
motion to dismiss. Like his other negligence allegations dis-
cussed above, recasting his claim as one for negligent infliction
of emotional distress does not change the fact that the injury
arose out of one or both of the assaults discussed above. We
have previously rejected “semantic recasting of events” to
“circumvent the assault and battery exemption through ‘artful
pleading.’” 15 Williams’ complaint was futile under the STCA
intentional tort exception, § 81-8,219(4), and we find no error
in the district court’s denial of leave to amend.
11
     See, Eadie v. Leise Properties, 

, 

 (2018);
     Bailey v. First Nat. Bank of Chadron, 

, 

     (2007).
12
     

13
     Rodriguez v. Catholic Health Initiatives, 

, 

 (2017).
14
     See Bailey v. First Nat. Bank of 

.
15
     Edwards v. Douglas 

, 

, 

. See, Moser v. State, supra note 2; Jill B. & Travis B. v. State, 

, 

 (2017) (citing JBP Acquisitions, LP v. U.S. ex
     rel. F.D.I.C., 

 (11th Cir. 2000)).
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Sequence of Decisions.
   [9] Finally, Williams claims that the district court made a
reversible procedural error because its order addressed the
State’s motion to dismiss before addressing Williams’ motion to
amend the complaint. We have stated that ordinarily, a district
court must consider and rule on a pending motion to amend
before ruling on a motion to dismiss. 16 However, here, subject
matter jurisdiction was at issue under § 81-8,219(4), and the
district court was first required to determine the applicable
law to resolve both motions. The court effectively decided that
both the existing and proposed complaints sound in negligence
and that amendment is futile due to § 81-8,219(4) because the
assaults are foundational to all of Williams’ allegations and
proposed amendments. Here, the district court’s decision to
decide the jurisdictional and amendment issues together was
not error.
   We briefly address the dissent, but only to point out that it
offers nothing new to our jurisprudence on the intentional tort
exception. The majority and dissenting opinions in Moser 17 and
Edwards 18 exhaustively addressed the relevant issues of sover-
eign immunity and statutory construction. In those cases, the
majority explained this court’s precedent construing the excep-
tion to apply whenever a tort claim against the State arises
from an assault. The majority also explained why, in Moser,
this court overruled the only case decided in the past 20 years
which had departed from such precedent.
   In both Moser and Edwards, the dissent advanced a contrary
interpretation of the statutory exception, which would immu-
nize the State from tort claims arising from assaults committed
by state employees, but would allow the State to be sued for
assaults committed by someone other than a state employee.
In response to the majority and dissenting opinions in Moser
16
     See Eadie v. Leise 

.
17
     Moser v. State, supra note 2.
18
     Edwards v. Douglas 

.
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and Edwards, the Legislature has begun considering proposed
amendments to the statutory language. That public policy
debate in the Legislature is ongoing, and this court should
allow it to develop unencumbered by judicial rhetoric urging
any particular legislative outcome.

                        CONCLUSION
   The district court correctly dismissed Williams’ negligence
claim against the State because it arose out of an assault and
thus was barred by the intentional tort exception. Further, the
district court did not abuse its discretion in denying Williams
leave to amend the complaint, because such amendments
would be futile. Accordingly, we affirm the judgment of the
district court.
                                                    Affirmed.

   Miller-Lerman, J., dissenting.
   For all of the reasons explained in my dissents in Moser
v. State, 

, 

 (2020), and Edwards
v. Douglas County, 

, 

 (2021), I
respectfully disagree with the majority’s opinion that a neg-
ligence claim is barred by sovereign immunity if there is an
assault by anyone anywhere in the picture. In this case, the
authorities knowingly placed Cameron Williams and the killer
of Williams’ brother, Jonathan Armendariz, in the same hous-
ing unit in contravention of the safety objectives of the “‘keep
separate’” list. Assaults by inmates later ensued. Even though
the State authorities were indifferent to their actual knowl-
edge of the risk of such placement, they are immune from suit
under Moser and Edwards. This is how it works under cur-
rent Nebraska jurisprudence: State actors can be dangerously
negligent with impunity and immunity if a nonstate actor later
perpetrates an expected assault.
   Regarding his claims, Williams’ complaint alleges that
despite every effort on his part to warn the proper officials
that Armendariz posed a serious threat to his safety, numerous
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acts of negligence placed him in serious danger, causing emo-
tional and ultimately physical harm. According to the com-
plaint, the State failed to follow its safety procedures and
negligently handled inmate safety with the result that Williams
and Armendariz came into contact at the Tecumseh State
Correctional Institution. Later, lax security by State officials
at the Nebraska State Penitentiary allowed assailants tied to
Armendariz to enter Williams’ cell and stab him.
   Although Williams may have a heavy burden in being able
to prove negligence by the State, in my view, he has alleged
sufficient facts to survive a motion to dismiss. Thus, without
opining on the strength of Williams’ negligence claims and
ignoring whether Williams is a compelling plaintiff, I wish to
return to the majority’s continued expansion of the intentional
tort exception to the State’s waiver of sovereign immunity
under both 

(7) (Cum. Supp. 2020) of
the Political Subdivision Tort Claims Act (PSTCA) and 

,219(4) (Cum. Supp. 2020) of the State Tort
Claims Act (STCA).
   In Doe v. Omaha Pub. Sch. Dist., 

, 

 (2007), this court followed the reasoning of the U.S.
Supreme Court’s holding in Sheridan v. United States, 

, 

, 

 (1988). As I
explained in 

 and in 

 and repeat
again today, the majority continues to refuse to follow U.S.
Supreme Court precedent. In my analysis which follows are
excerpts of my dissents in 

 and 

without citation, discussing the viability of claims based on
antecedent negligent acts by the State occurring before an
assault or battery, and why such negligence can be considered
a viable “claim” stated.
   Moser v. State, 

, 

 (2021), over-
ruled Doe based on the dubious notion that the U.S. Supreme
Court and the Nebraska Supreme Court interpret the same
statutory language so differently that adhering to U.S. Supreme
Court precedent would offend Nebraska. As I explained in
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my Moser dissent, there is no meaningful difference between
statutory interpretation habits of the Nebraska Supreme Court
and the U.S. Supreme Court in this regard, and reading the text
of § 81-8,219(4) and its counterpart § 13-910(7) in the context
of the STCA and PSTCA of which they are respectively a part,
including the definition of “claim” in § 81-8,219(4) and simi-
larly the definition of “claim” in 

(4)
(Reissue 2012), I conclude that the intentional tort assault
exception to the waiver of sovereign immunity does not apply;
hence, the State is subject to suit in this case.

The Nebraska Statute and the Federal Statute
Should Be Read the Same Way.
   As in 

 a case involving an inmate assault, the
majority reasons that the State’s earlier negligence “claim”
arose out of the subsequent assault by a nongovernmental
assailant. The majority believes that Nebraska abides by a
unique statutory interpretation scheme, so it cannot follow
the interpretation of the same language as found by the U.S.
Supreme Court in 

 But, as I explained in my
dissents in 

 and Edwards v. Douglas County, 

, 

 (2021), the federal and Nebraska
interpretation schemes are the same, i.e., read the waiver of
immunity strictly and the exceptions thereto broadly, and there-
fore, one should expect the same result. The Moser majority,
however, chose to ignore the wisdom of the U.S. Supreme
Court precedent and insisted that Nebraska should read the
same language differently and that this reading is what the
Nebraska Legislature intended. I respectfully disagree.
   In my Moser and Edwards dissents, I stated:
      The U.S. Supreme Court has addressed the waiver of sov-
      ereign immunity and the “arising out of assault” exception
      language. Just like Nebraska, the U.S. Supreme Court has
      stated that a sovereign immunity waiver “will be strictly
      construed . . . in favor of the sovereign.” Lane v. Pena,
      

, 

, 

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(1996). And just like Nebraska, one justice has summa-
rized the applicable U.S. Supreme Court law as follows:
“In cases where, as here, the question whether a particu-
lar claim is subject to an exception is disputed, we have
construed the FTCA [Federal Tort Claims Act] exceptions
broadly to preclude claims for actions Congress intended
to except from the FTCA’s general waiver of immunity.”
Dolan v. Postal Service, 

, 499 n.3, 

, 

 (2006) . . . .
    The U.S. Supreme Court has warned, however, that
“‘unduly generous interpretations of the exceptions run
the risk of defeating the central purpose of the statute,’
. . . which ‘waives the Government’s immunity from suit
. . . .’” 

 (Thomas, J., dissenting). And
we too have resisted the temptation to accord unduly gen-
erous interpretations of exceptions which would defeat
the waiver. See, e.g., Brown [v. State], 305 Neb. [111,]
122, 939 N.W.2d [354,] 361 [(2020)] (declining to read
language of exception so broadly that it “would judicially
expand” exception). Applying U.S. Supreme Court prec-
edent and according a broad reading to the exception pro-
visions of the FTCA to a fact pattern akin to the instant
case, the U.S. Court of Appeals for the Second Circuit
stated: “Despite the broad reading given to [the FTCA]
section 2680(h)’s ‘arising out of’ language [equivalent to
Nebraska’s §§ 81-8,219(4) and 13-910(7)], [the section]
may not bar mixed claims of negligence and intentional
conduct in the relatively uncommon case” where the
negligence claim is independent of the intentional tort.
Guccione v. U.S., 

 (2d Cir. 1988).
So even applying a broad reading to the intentional tort
exception, cases like the instant matter are not barred
where there is independent negligence by the government.
    Given the above, the Nebraska Supreme Court and the
U.S. Supreme Court clearly share the same approach to the
statutory language at issue. Nevertheless, without making
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      an apt comparison, the majority insists the Nebraska
      approach to statutory interpretation is so different that
      reading the same language requires a result in Nebraska
      different from that of the U.S. Supreme Court’s control-
      ling authority.
Moser v. State, 

, 

(2020) (Miller-Lerman, J., dissenting). Accord 

(Miller-Lerman, J., dissenting).
   In my view, the majority’s act of broadening the assault
exception yet again through erroneous interpretation is a judi-
cial expansion beyond the statute’s text and is a usurpation of
the legislative power.

The Intentional Tort Assault Exception Applies to
Claims Alleging the Intentional Tort of Assault
Committed by Governmental Employees But Not
to the Intentional Tort of Assault Committed
by Nongovernmental Assailants.
   In the very text of the PSTCA and STCA statutes, the statu-
tory language shows that the language of the intentional tort
exception (sometimes referred to as “exemption”) applies to
intentional torts committed by governmental employees but not
to intentional torts committed by nongovernmental actors.
   The majority relies on the exception, but fails to explain—
“exception to what?” The answer is that the exception is appli-
cable only to a “claim” that a governmental employee—not
a nongovernmental person—committed the very tort sought
to be excepted. That is, the tort allegedly committed by the
governmental employee must be the same tort for which the
exception is applicable. So, if the governmental employee
commits an assault, the governmental entity can receive immu-
nity based on the assault exception to the waiver of sovereign
immunity. See, e.g., Britton v. City of Crawford, 

,

 (2011) (concluding that police officers who
shot victim committed intentional battery and were immune).
But if the governmental employee commits a nonassault act of
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negligence, the governmental entity cannot receive immunity
based on the assault exception where the assault was com-
mitted later by a random individual who is not a governmen-
tal employee.
   The Nebraska statutes’ general waiver of immunity applies
only to “tort claims” of its employees. See 

,210(4) (Reissue 2014) and 13-902 (Reissue 2012).
For example, the types of claims covered by the STCA waiver
of immunity are defined in § 81-8,210(4), where “claim”
is defined:
      Tort claim means any claim against the State of Nebraska
      for money only on account of damage to or loss of prop-
      erty or on account of personal injury or death caused by
      the negligent or wrongful act or omission of any employee
      of the state, while acting within the scope of his or her
      office or employment, under circumstances in which the
      state, if a private person, would be liable to the claimant
      for such damage, loss, injury, or death . . . .
(Emphasis supplied.) Thus, under § 81-8,210(4), a “claim”
is an “act or omission” of an “employee” of the State. An
“[E]mployee,” as defined under § 81-8,210(3), is “any one or
more officers or employees of the state or any state agency and
shall include duly appointed members of boards or commis-
sions when they are acting in their official capacity.”
   The intentional tort exception on which the majority relies
is found in § 81-8,219(4) and provides that the STCA shall not
apply to “Any claim [defined in § 81-8,210(4) as a negligent or
wrongful act or omission by a governmental employee] arising
out of assault, battery, false imprisonment, false arrest, mali-
cious prosecution, abuse of process, libel, slander, or interfer-
ence with contract rights.” (Emphasis supplied.) Construing the
same language, the U.S. Supreme Court has explained:
      The exception should therefore be construed to apply
      only to claims that would otherwise be authorized by the
      basic waiver of sovereign immunity. Since an assault by a
      person who was not employed by the Government could
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     not provide the basis for a claim under the FTCA [or the
     STCA and PSTCA], the [intentional tort] exception could
     not apply to such an assault; rather, the exception only
     applies in cases arising out of assaults by federal [or
     governmental subdivision] employees.
Sheridan v. United States, 

, 

,

 (1988) (emphasis supplied).
   The definitional statute, § 81-8,210(4), which is omitted
from the majority’s analysis, states that “claim” shall mean
“negligent or wrongful act or omission of any employee of
the state.” (Emphasis supplied.) Under the STCA, sovereign
immunity is waived for certain acts, and such acts give rise
to “claims” which form the basis of viable lawsuits unless
such claims are excepted. “Claim” is a statutory word of art.
So the intentional tort exception for “[a]ny claim arising out
of assault” in § 81-8,219(4) (emphasis supplied) by definition
plainly means that a “negligent or wrongful act or omission
of any employee of the state” of the kind described will be
excepted, see § 81-8,210(4). An assault by an inmate is not
a “claim.”
   As I stated previously:
        In Sheridan v. United States, 

, 

, 

 (1988), where liability against
     the government was not precluded, the Court relied on
     two cases which involved assaults by inmates rather
     than by governmental employees. Both cases alleged
     negligence by federal employees by failing to prevent
     the assault that caused injury: United States v. Muniz,
     

, 

, 

 (1963)
     (allowing 12 inmates to gather to beat up one inmate,
     the plaintiff), and Panella v. United States, 

     (2d Cir. 1954). The Sheridan Court agreed with Judge
     (later Justice) Harlan’s reasoning in Panella based on
     statutory interpretation to the effect that the intentional
     tort exception only applied to claims already authorized
     by the waiver of sovereign immunity, that is, to claims
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      involving torts committed by governmental employees. In
      Nebraska, that concept is found in § 81-8,210(4), which
      provides that the claims to which sovereign immunity is
      waived are “the negligent or wrongful act or omission of
      any employees of the [S]tate.” Contrary to § 81-8,210(4),
      the majority’s reasoning assumes that the waiver of the
      State’s immunity includes a claim against the State under
      the [STCA] based solely on an inmate’s assault of another
      inmate. But there is no such cognizable claim under the
      [STCA], so one cannot logically apply an exception to a
      nonexistent claim. See 

Moser v. State, 

, 

(2020) (Miller-Lerman, J., dissenting).
   These statutory words defining “claim” are plain, direct, and
unambiguous. We have repeatedly said:
         When interpreting a statute, the starting point and focus
      of the inquiry is the meaning of the statutory language,
      understood in context. Rogers v. Jack’s Supper Club, 

, 

 (2019). Statutory language is
      to be given its plain and ordinary meaning, and an appel-
      late court will not resort to interpretation to ascertain
      the meaning of statutory words which are plain, direct,
      and unambiguous. 

 It is not within the province of the
      courts to read meaning into a statute that is not there or to
      read anything direct and plain out of a statute. 

Parks v. Hy-Vee, 

, 

(2020). Instead of accepting that the text of these statutes is
plain, the opinion of Edwards v. Douglas County, 

, 

 (2021)—on which the majority relies
in this case—took, as I have previously observed, a lengthy
excursion in statutory interpretation but tellingly omitted the
controlling statutory text defining “claim” and the context to
which exceptions are applied.
   So in the instant case, referring to the complaint, I ask:
What is the alleged wrongful act of the State employees
which forms the basis for the “claim”? Williams’ “claim”
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against the State is based on the alleged negligent acts of State
employees who, knowing of the safety risk and in contraven-
tion of the “keep separate” list, placed Williams and the killer
of his brother in the same housing unit. The claim is based
on what State employees did in the course of their employ-
ment, and no one is claiming in this case that a State employee
assaulted Williams. The “claim” was fait accompli before any
assaults. The claim did not arise out of the assault; the assault
is an intentional tort, but the prior negligence claim is indepen-
dent of the intentional tort. Nevertheless, the majority persists
in following Moser and Edwards. As in Moser, the plaintiff
alleges that negligence was committed by a governmental
entity and the assault is the subsequent injury or event. In my
view, the majority continues to get it backwards; it reasons that
the later “assault” which is listed in § 81-8,219(4) led to the
earlier negligence claim.
   What if Armendariz or his associates stole or damaged
Williams’ property found in his cell after the authorities ignored
the “keep separate” list? Stealing is not listed as an excepted
act in § 81-8,219(4). Would the majority reason that the claim
of negligently failing to adhere to the safety objectives of
the “keep separate” list arose from the subsequent theft and,
because theft is not on the list of § 81-8,219(4), that the State is
not immune and remains subject to suit? That is, in the major-
ity’s view, the Legislature, in enacting § 81-8,219(4), believed
that whether the State can be sued for its earlier negligence
depends on the fortuitous nature of the crime committed later
by the nongovernmental employee. The majority’s reasoning is
neither warranted by statutory text nor sensible.
   Referring to the language and purpose of § 81-8,219(4), I
ask: Should a government’s liability for its earlier negligent
act depend on the type of crime a nongovernmental third party
later commits? Does that make the government’s act non­
tortious? What is the incentive for adhering to inmate safety
precautions if failure to do so can be obliterated by the later
criminal act of a nongovernmental third party? Is the reading
of the statute by the majority what the Legislature intended?
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   We recently stated that “[i]t is a court’s duty to discover,
if possible, legislative intent from the statute itself.” In re
Guardianship & Conservatorship of J.F., 

,

, 502 (2020). And we have long held that it
is presumed that the Legislature intended a sensible, rather
than an absurd, result. Hoiengs v. County of Adams, 

, 

 (1998). We have specifically applied the
preference for a sensible reading to the PSTCA, e.g., Stick v.
City of Omaha, 

, 

 (2015), and we
should also give the STCA a sensible reading. With the forego-
ing in mind, I respectfully believe that the interpretation by the
majority of the intentional tort exception in the STCA is nei-
ther supported by the text of the statute, sensible, nor intended
by the Legislature. Instead, it is an unwarranted judicial expan-
sion of a statutory exception.
   The majority’s reading strays from the text of § 81-8,219(4),
strays from the principles of statutory construction in general,
and, in the sovereign immunity jurisprudence in particular,
strays from the reading of the same language by the U.S.
Supreme Court, strays from a sensible reading of § 81-8,219(4),
and strays from the fact the Legislature since 2007 has long
acquiesced in this court’s reading of the assault exception in
Doe v. Omaha Pub. Sch. Dist., 

, 

(2007). I respectfully disagree with the majority’s description
of its foray in Moser v. State, 

, 

(2020), in 2020 as “settled precedent.”
   As I stated in my dissent in Moser:
         The Sheridan [v. United States, 

, 

, 

 (1988),] Court held that
      “in at least some situations[,] the fact that an injury was
      directly caused by an assault or battery will not preclude
      liability against the Government for negligently allow-
      ing the assault to occur.” 

. Contrary to
      the majority’s view to the effect that the State’s alleged
      negligence arises from the assault, the roots of the assault
      lie in the State’s own alleged negligence. So it would be
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     contrary to the language of the [STCA] and unsound to
     afford immunity to an alleged breach of duty by a gov-
     ernmental entity because an intervening event, the very
     anticipation of which made that governmental entity’s
     conduct negligent, has brought about the expected harm.
     Doe v. Durtschi, 

, 

 (1986).
307 Neb. at 44, 

 (Miller-Lerman, J.,
dissenting).

The Consideration of the Legislature Is Invited.
   After having judicially expanded the statutory intentional
tort exception, the majority in Edwards v. Douglas County, 

, 

 (2021), found itself in the awkward
position of entreating the Legislature to consider restoration
of the intentional tort assault exception to the status quo ante
Moser. E.g., see 2021 Neb. Laws, L.B. 54, pending in the
Legislature. The majority again today refers this matter to the
Legislature. I too welcome consideration by the Legislature.
   The majority view developed in Moser, in Edwards, and
again today has broad consequences. In this case, the State
allegedly violated the “keep separate” list designed to keep
inmates separated and safe. I respectfully dissent from the
majority’s reasoning in Moser, Edwards, and the instant case.
Under the majority’s reasoning, if the State negligently violates
a “keep separate” directive effectively promoting a cage match
between inmates and the expected assault ensues, the State is
immune from suit; I dissent.