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In this Political
Subdivisions Tort Claims Act case brought by a father whose daughter
was sexually assaulted by a fellow student which the father alleged
the school district had actual knowledge that the student who committed
the assault had a history of physical and/or sexual misconduct toward
other students before the purported assault but took no steps to
restrict or restrain the student. The Nebraska Supreme Court find
that the district court erred in dismissing the suit on a 12(b)6
motion and that the record was insufficient to show that PSTCA immunities
applied. Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79 (2007)
Supreme
Court Headnotes
Motions
to Dismiss:
- [Rules
of the Supreme Court:] Pleadings. Because a motion pursuant
to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003) tests
the legal sufficiency of the complaint, not the claim's substantive
merits, a court may typically look only at the face of the complaint
to decide a motion to dismiss.
Rules of
the Supreme Court:
- [Pleadings.]
Dismissal under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev.
2003) should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint that
there is some insuperable bar to relief.
- [Motions
to Dismiss: Pleadings.] A complaint is subject to dismissal
under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003)when
its allegations indicate the existence of an affirmative defense
that will bar the award of any remedy; but for this to occur, the
applicability of the defense has to be clearly indicated and must
appear on the face of the pleading to be used as the basis for the
motion to dismiss.
Pleadings:
- [Appeal
and Error.] An appellate court reviews de novo a lower court's
dismissal of a complaint for failure to state a claim. •••
When analyzing a lower court's dismissal of a complaint for failure
to state a claim, an appellate court accepts the complaint's factual
allegations as true and construes them in the light most favorable
to the plaintiff.
Summary Judgment:
- [Motions
to Dismiss:] (Notice.) When receiving evidence which converts
a motion to dismiss into a motion for summary judgment, it is important
for the trial court to give the parties notice of the changed status
of the motion and a reasonable opportunity to present all material
made pertinent to such a motion by the rules governing summary judgment.
Political
Subdivisions Tort Claims Act:
- The exceptions
set forth in Neb. Rev. Stat. § 13-910 (Cum. Supp. 2002) are
affirmative sovereign immunity defenses to claims brought pursuant
to the Political Subdivisions Tort Claims Act. •••
The discretionary function exception of the Political Subdivisions
Tort Claims Act extends only to basic policy decisions made in governmental
activity, and not to ministerial activities implementing such policy
decisions. The exception does not extend to the exercise of discretionary
acts at an operational level. •••. It is the nature
of the conduct, rather than the status of the actor, that governs
whether the discretionary function exception of the Political Subdivisions
Tort Claims Act applies in a given case. ••• A court
engages in a two-step analysis to determine if the discretionary
function exception of the Political Subdivisions Tort Claims Act
applies. First, the court must consider whether the action is a
matter of choice for the acting employee. If the court concludes
that the challenged conduct involves an element of judgment, it
must then determine whether that judgment is of the kind that the
discretionary function exception was designed to shield. •••
When the facts are undisputed, the determination of whether the
discretionary function exception of the Political Subdivisions Tort
Claims Act applies is a question of law.
- [Immunity:]
(Negligence.) The Political Subdivisions Tort Claims Act eliminates,
in part, the traditional immunity of political subdivisions for
the negligent acts of their employees. ••• A negligence
action brought under the Political Subdivisions Tort Claims Act
has the same elements as a negligence action against a private individual,
i.e., duty, breach of duty, causation, and damages.
Negligence:
- Whether a
duty exists at all is a question of law. Defining the scope ofan
existing duty is likewise a question of law.
- [Words
and Phrases.] A duty is defined as an obligation, to which the
law will give recognition and effect, to conform to a particular
standard of conduct toward another.
- [Liability.]
If a political subdivision proves thata plaintiff's claim comes
within an exception pursuant to Neb. Rev. Stat. § 13-910(Cum.
Supp. 2002), then the claim fails based on sovereign immunity, and
the political subdivision is not liable.
Date Filed
and Case No.: February 16, 2007. No. S-05-794.
Internet
Address: http://www.supremecourt.ne.gov/opinions/2007/february/feb16/s05-794.pdf
Appealed
From: District Court for Douglas County: J. Michael Coffey,
Judge.
Attorneys
and Parties: Maren Lynn Chaloupka and K.C. Engdahl for John
Doe, as father and next friend of Jane Doe, a minor child, appellant.
Kirk S. Blecha and Lindsay K. Lundholm for Omaha Public School District,
a Political Subdivision, Appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Stephan
Summary:
John Doe, as father and next friend of Jane Doe, brought this action
against the Omaha Public School District (OPS) under the Political
Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. §§
13-901 to 13-926 (Reissue 1997 & Cum. Supp. 2002). Doe alleged
in his complaint that on 02/26/04, a student identified as J.D.
sexually assaulted his daughter Jane during school hours at the
OPS high school they both attended. Doe alleged on information and
belief that OPS "had actual knowledge that J.D. had a history
of physical and/or sexual misconduct toward other students"
before the purported assault but "took no steps to restrict
or restrain" J.D.'s activities in order to protect other students.
OPS moved to dismiss under Neb. Ct. R. of Pldg. in Civ. Actions
12(b)(6) (rev. 2003), claiming that Doe's complaint failed to state
a claim upon which relief could be granted. In its motion, OPS asserted
that as a political subdivision of the State of Nebraska, it retained
immunity from suit under § 13-910 based on the fact that Doe's
claims arose out of (1) an assault; (2) OPS' exercise
of due care in the execution of officially adopted resolutions,
regulations, and rules; and (3) OPS' exercise of discretionary
functions. OPS also asserted in its motion that Doe's complaint
failed to allege facts sufficient to show the negligence elements
of duty, breach, and causation.
At a hearing
on the motion to dismiss, both parties offered evidence which was
received without objection. In a written order, the district court
determined that OPS was immune from the negligence claims alleged
in Doe's complaint based on the exceptions found in the PSTCA, and
it therefore granted the motion to dismiss with prejudice. Doe appealed
and the Nebraska Supreme Court granted his petition to bypass the
Nebraska Court of Appeals.
On appeal, Doe
assigned that the district court erred in concluding that his complaint
failed to state a claim upon which relief could be granted.
Re: Standard
of Review: The Court began by addressing a procedural issue
affecting the nature and scope of its review. Rule 12 (b) provides
that when matters outside of the pleadings are presented by the
parties and accepted by the trial court with respect to a motion
to dismiss under rule 12(b)(6), the motion "shall be treated"
as a motion for summary judgment as provided in Neb. Rev. Stat.
§§ 25-1330 to 25-1336 (Reissue 1995 & Cum. Supp. 2006)
and the parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by statute. The
Court said its review of an order granting a motion for summary
judgment is not restricted to the allegations of the complaint,
but instead requires that it determine whether the pleadings and
evidence admitted at the hearing disclose that there is no genuine
issue as to any material fact or as to the ultimate inferences that
may be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Federal courts have recognized
that when receiving evidence which converts a motion to dismiss
into a motion for summary judgment, it is important for the trial
court to "give the parties notice of the changed status of
the motion and a 'reasonable opportunity to present all material
made pertinent to such a motion'" by the rules governing summary
judgment. The Nebraska Supreme Court agreed with and adopted this
principle.
In this case,
the trial court did not indicate that its receipt of evidence converted
the motion to one for summary judgment, and neither party contends
that a conversion occurred. Here, the evidence offered by OPS did
not directly address the factual allegations of Doe's complaint
and therefore did not establish the absence of a genuine issue of
material fact. “On the record before us, OPS would be entitled
to prevail only if the district court correctly concluded that the
complaint failed to state a claim upon which relief could be granted.”
The district court did not specifically address the question of
whether Doe's complaint alleged a prima facie case and as an alternative
ground for affirmance, OPS argued that it did not. In the petition,
Doe alleged that prior to the date of the alleged assault on his
daughter, OPS "had actual knowledge that J.D. had a history
of physical and/or sexual misconduct toward other students"
but "took no steps to restrict or restrain" him. OPS argued
that this allegation is insufficient to raise an issue of foreseeability.
The Court disagreed as the allegation placed OPS on notice that
Doe is claiming that it had prior knowledge of specific behaviors
on the part of J.D. which made his alleged subsequent violent conduct
reasonably foreseeable. “Construing the allegations of the
complaint in a light most favorable to Doe, as we are required to
do at this stage of the proceeding, we conclude that it is sufficient
under our notice pleading rules to state a claim for relief under
the PSTCA.”
Re: Immunity
under PSTCA: In its motion to dismiss, OPS alleged that it is
entitled to immunity based upon three of the exceptions in §
13-910. The Court agreed with the prevailing view among federal
courts that
a complaint
also is subject to dismissal under Rule 12(b)(6) when its allegations
indicate the existence of an affirmative defense that will bar the
award of any remedy; but for this to occur, the applicability of
the defense has to be clearly indicated and must appear on the face
of the pleading to be used as the basis for the motion. “In
other words, a motion to dismiss a complaint may be granted where
the plaintiff's own allegations show that a defense exists that
legally defeats the claim for relief. Within this analytical framework,
in the opinion the Court addressed each of the three affirmative
defenses upon which OPS based its claim of immunity.
(1) Neb.
Rev. Stat. § § 13-910(7) Intentional Tort Exception:
Section 13-910(7) states that the PSTCA shall not apply to "[a]ny
claim arising out of assault, battery, false arrest, false imprisonment,
malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights." Doe responds
that because the assailant was not alleged to be an agent or employee
of OPS, the intentional tort exception in § 13-910(7) does
not apply. To resolve the issue, the Court had to determine the
breadth of the phrase "[a]ny claim arising out of assault"
as it is used in § 13-910(7). Analyzing § 13-910(7), the
Court found Doe's claim is not based upon the assault itself, and
he could not prevail merely by proving that it occurred. Rather,
he alleges that before the alleged assault, OPS breached
an independent legal duty, unrelated to any possible employment
relationship between the assailant and OPS, to take reasonable steps
to prevent foreseeable violence from occurring on its premises.
The claim therefore did not arise from an assault, but, rather,
from an alleged negligent failure to protect a student from a foreseeable
act of violence. “Accordingly, the complaint does not clearly
indicate the applicability of a defense under § 13-910(7) which
would legally bar the relief sought.”
(3) Neb.
Rev. Stat. § 13-910(2) Discretionary Function Exception:
Section § 13-910(2) states that the PSTCA shall not apply to
"[a]ny claim based upon the exercise or performance of or the
failure to exercise or perform a discretionary function or duty
on the part of the political subdivision or an employee of the political
subdivision, whether or not the discretion is abused." OPS
argues that the discretionary function exception is triggered by
Doe's allegation in his complaint that "pursuant to school
policy allowing for students to be transferred rather than expelled
after a finding of sexual misconduct," OPS permitted J.D. to
attend the school where the alleged assault occurred. The Court
ruled that without evidence concerning the policy and what actually
transpired, it was unable to engage in an analysis to determine
whether or not the discretionary function exception applies. “Because
it cannot be determined from Doe's complaint whether or not the
discretionary function exception bars his claim, the affirmative
defense cannot serve as a basis for dismissal under rule 12(b)(6).”
(c) § 13-910(1)
Due Care Exception
(2) Neb.
Rev. Stat. § § 13-910(1) the PSTCA Due Care Exception:
Doe argues that this defense cannot bar his claim because he alleged
that OPS failed to exercise due care. Again, in the absence of a
factual record, the Court could not determine whether or not this
affirmative defense has merit. “Thus, it cannot serve as the
basis for dismissal under rule 12(b)(6).”
Conclusion:
The Court concluded that this is not "the unusual case in which
a plaintiff includes allegations that show on the face of the complaint
that there is some insuperable bar to relief." Johnson v.
Johnson, 272 Neb. 263, 265, 720 N.W.2d 20, 23 (2006). A factual
record is necessary to resolve the issues raised by the complaint
and the assertion of affirmative defenses by OPS and the district
court erred in granting the motion to dismiss. REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS.
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