Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/27/2019 12:06 AM CST




                                                        - 593 -
                               Nebraska Supreme Court Advance Sheets
                                        304 Nebraska Reports
                                         RUTLEDGE v. CITY OF KIMBALL
                                              Cite as 304 Neb. 593




                                Amie L. Rutledge, appellant, v. City of
                                 Kimball, a political subdivision of
                                  the State of Nebraska, appellee.
                                                   ___ N.W.2d ___

                                        Filed December 6, 2019.   No. S-18-924.

                 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. 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.”
                                   - 594 -
           Nebraska Supreme Court Advance Sheets
                    304 Nebraska Reports
                     RUTLEDGE v. CITY OF KIMBALL
                          Cite as 304 Neb. 593

 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 employ-
    ment 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 politi-
    cal 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 neg-
    ligence 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 per-
    son’s conduct.
12. ____: ____. When a special relationship exists, an actor in that relation-
    ship 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 protec-
    tion 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. Affirmed.
  James R. Korth, of Reynolds, Korth & Samuelson, P.C.,
L.L.O., for appellant.
  Steven W. Olsen and Paul W. Snyder, of Simmons Olsen
Law Firm, P.C., for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
                             - 595 -
         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                 RUTLEDGE v. CITY OF KIMBALL
                      Cite as 304 Neb. 593

  Heavican, C.J.
                      INTRODUCTION
   This case arose out of an alleged assault and battery per-
petrated 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 negli-
gent 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 find-
ing 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 dismiss her complaint against Ford with prejudice, which
was granted by the district court the same day.
                                 - 596 -
            Nebraska Supreme Court Advance Sheets
                     304 Nebraska Reports
                    RUTLEDGE v. CITY OF KIMBALL
                         Cite as 304 Neb. 593

                 ASSIGNMENT OF ERROR
   Rutledge’s sole assignment of error is that the trial court
erred in granting the City’s motion to dismiss for failure to
state a claim upon which relief may be granted.

                   STANDARD OF REVIEW
   [1] 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.1
   [2,3] Whether the allegations made by a plaintiff present a
claim that is precluded by exemptions set forth in the PSTCA
is a question of law.2 An appellate court has an obligation to
reach its conclusion on whether a claim is precluded by exemp-
tions set forth in the PSTCA independent from the conclusion
reached by the trial court.3

                           ANALYSIS
   Rutledge argues her claims are not barred by the inten-
tional torts exception to the PSTCA, because they did not
arise from Ford’s assault and battery, but from the City’s
“independent duty to protect [her] from [Ford’s] foreseeable
acts of violence.”4 The City maintains that Rutledge’s claims
are barred by the intentional torts exception because they
arise from an assault and battery and that Rutledge “is simply
re-framing an injury . . . as negligence” in an attempt to avoid
the City’s sovereign immunity.5
   [4-6] The PSTCA governs claims made against a political
subdivision when the claim is based upon acts or omissions of

1
    Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717
    (2019).
2
    Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).
3
    Id.
4
    Brief for appellant at 8.
5
    Brief for appellee at 6.
                                     - 597 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                       RUTLEDGE v. CITY OF KIMBALL
                            Cite as 304 Neb. 593

an employee occurring within the scope of employment.6 The
PSTCA allows a limited waiver of a political subdivision’s
sovereign immunity with respect to certain, but not all, types
of tort actions.7 Section 13-910 sets forth specific claims that
are exempt from the waiver of sovereign immunity, including
“[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.”8 This is sometimes referred to as the “‘intentional
torts exception.’”9
   In Johnson v. State,10 this court analyzed the intentional
torts exception contained in the State Tort Claims Act, which
contains language identical to the PSTCA.11 In that case, an
inmate filed a negligence claim against the State of Nebraska,
the Omaha Correctional Center, and the Nebraska Department
of Correctional Services, alleging she was sexually assaulted
by an employee of the Department of Correctional Services
while the employee was acting within the scope of his employ-
ment. The plaintiff alleged the defendants were negligent in
(1) violating Nebraska jail standards with respect to the hous-
ing of female inmates, (2) failing to properly supervise their
employees, (3) failing to properly hire employees, (4) failing
to properly maintain the Omaha Correctional Center, and (5)
failing to discipline the employee who allegedly perpetrated
the sexual assault. The district court dismissed the plaintiff’s
petition after finding her claims were barred by the intentional
torts exception because they arose out of an assault. This court

 6
     See Neb. Rev. Stat. § 13-910(1) to (12) (Reissue 2012).
 7
     City of Lincoln v. County of Lancaster, 297 Neb. 256, 898 N.W.2d 374
     (2017).
 8
     See, id; § 13-910(7).
 9
     See City of Lincoln v. County of Lancaster, supra note 7, 297 Neb. at 260,
     898 N.W.2d at 378.
10
     Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005).
11
     See Neb. Rev. Stat. § 81-8,219(4) (Reissue 2014).
                                     - 598 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                       RUTLEDGE v. CITY OF KIMBALL
                            Cite as 304 Neb. 593

affirmed the judgment of the district court. In doing so, we
adopted Justice Kennedy’s concurrence in the U.S. Supreme
Court case Sheridan v. United States.12
   When addressing the intentional torts exception to the
Federal Tort Claims Act, Justice Kennedy’s concurrence rec-
ognized that an injury could arise from more than one cause
and stated:
      “To determine whether a claim arises from an intentional
      assault or battery and is therefore barred by the exception,
      a court must ascertain whether the alleged negligence was
      the breach of a duty to select or supervise the employee-
      tortfeasor or the breach of some separate duty indepen-
      dent from the employment relation. . . . If the allegation
      is that the Government was negligent in the supervision
      or selection of the employee and that the intentional tort
      occurred as a result, the intentional tort exception . . . bars
      the claim. Otherwise, litigants could avoid the substance
      of the exception because it is likely that many, if not
      all, intentional torts of Government employees plausibly
      could be ascribed to the negligence of the tortfeasor’s
      supervisors. To allow such claims would frustrate the pur-
      poses of the exception.”13
   [7] To summarize, Johnson held that 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 gov-
ernment (such as a negligent supervision or negligent hir-
ing claim).”14

12
     Sheridan v. United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d
     352 (1988).
13
     Johnson v. State, supra note 10, 270 Neb. at 322, 700 N.W.2d at 625
     (quoting Sheridan v. United States, supra note 12 (Kennedy, J., concurring
     in judgment)).
14
     Johnson v. State, supra note 10, 270 Neb. at 323, 700 N.W.2d at 625.
                                       - 599 -
              Nebraska Supreme Court Advance Sheets
                       304 Nebraska Reports
                        RUTLEDGE v. CITY OF KIMBALL
                             Cite as 304 Neb. 593

   [8] Similarly, in Britton v. City of Crawford,15 this court held
that when conduct “‘aris[es] out of’ a battery,” it falls within
the exception of § 13-910(7) and the political subdivision is not
liable for damages resulting from the battery, even when the
pleaded conduct is characterized or framed as negligence. In
Britton, the personal representative of the estate of a deceased
police shooting victim sued the City of Crawford under the
PSTCA, alleging it was negligent in handling a standoff where
the victim had barricaded himself. The City of Crawford filed a
motion to dismiss the complaint on the grounds that it failed to
state a cause of action upon which relief could be granted, and it
argued the City of Crawford could not be held liable under the
PSTCA, because the complaint alleged assault and battery. The
district court granted the City of Crawford’s motion to dismiss.
This court affirmed and held the claim was barred by the inten-
tional torts exception because the alleged negligence was “inex-
tricably linked” to a battery.16 We reasoned that “[w]hile other
factors may have contributed to the situation which resulted in
[the victim’s] death, but for the battery, there would have been
no claim.”17
   Here, Rutledge’s claim clearly arises out of a battery.
Rutledge alleges Ford attacked and strangled her, without her
consent, intending to cause a harmful or offensive contact
with her.18 She further alleges the City was negligent because
it “knew or should have known that FORD had displayed
past violent behavior and violent propensities, including prior

15
     Britton v. City of Crawford, 282 Neb. 374, 383, 803 N.W.2d 508, 516
     (2011).
16
     Id. at 386, 803 N.W.2d at 518.
17
     Id.
18
     See Britton v. City of Crawford, supra note 15, 282 Neb. at 382, 803 N.W.2d
     at 515 (defining intentional tort of battery as “‘“an actual infliction” of an
     unconsented injury upon or unconsented contact with another’” or “‘any
     intentional, unlawful physical violence or contact inflicted on a human
     being without his consent’”).
                                     - 600 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                       RUTLEDGE v. CITY OF KIMBALL
                            Cite as 304 Neb. 593

assaults upon citizens[,] while on duty with [the] CITY” and
“in failing to take proper measures to supervise FORD and pro-
tect the general public, specifically RUTLEDGE.” In her brief,
Rutledge asserts her claim is not barred by the intentional torts
exception, because it is not based on “vicarious liability, or
for negligent supervision or negligent hiring.”19 She contends
that “Ford’s employment status is immaterial,” yet she argues
the City “was uniquely positioned as his employer, with full
knowledge of the facts and circumstances of that prior vio-
lent act and subsequent control over Ford, to protect [her].”20
Rutledge further argues her negligence claim is “wholly inde-
pendent” of Ford’s employment status, because it alleges the
City was negligent for “failing to protect [her] and the public
in general.”21
    [9-12] We hold that Rutledge’s negligence claim is barred by
the PSTCA because she cannot allege any potential source of
duty other than Ford’s employment status. 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.22 The threshold issue in any negligence
action is whether the defendant owes a legal duty to the plain-
tiff.23 This court has held that 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.’”24

19
     Brief for appellant at 5.
20
     Id. at 8.
21
     Id. at 5,7.
22
     Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
23
     Id.
24
     Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 11, 899 N.W.2d 227,
     235 (2017).
                                    - 601 -
             Nebraska Supreme Court Advance Sheets
                      304 Nebraska Reports
                      RUTLEDGE v. CITY OF KIMBALL
                           Cite as 304 Neb. 593

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.’”25 Here, there is no special relationship between
Ford and the City—other than his employment relationship—
that could give rise to an affirmative duty to protect Rutledge
from Ford.
   At oral argument, Rutledge raised for the first time the
theory of premises liability. She did not specifically plead
premises liability in her complaint; however, she cited to this
court’s holding in Doe v. Omaha Pub. Sch. Dist.26 in support of
her argument that the City was negligent in failing to protect
Rutledge and the general public from Ford.
   In Doe, a student had been sexually assaulted by another
student during school and the plaintiff alleged the school dis-
trict breached its duty to take reasonable steps to prevent fore-
seeable violence from occurring on its premises. We held that
the intentional torts exception did not clearly indicate the claim
was barred, because the alleged breach was of an independent
legal duty unrelated to any possible employment relationship
between the assailant and the school district.
   The present case is easily distinguished from our holding
in Doe. Specifically, in Doe, there was no allegation that the
assailant was an agent or employee of the political subdivision.
Further, the school district had an existing duty, based on its
relationship with the student victim, to protect against harm
when the conduct was sufficiently foreseeable.27 Here, the
only relationship that existed was the employment relationship

25
     Id. at 12, 899 N.W.2d at 235 (quoting 2 Restatement (Third) of Torts:
     Liability for Physical and Emotional Harm § 41(a) (2012)). See, also,
     Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012);
     Bartunek v. State, 266 Neb. 454, 666 N.W.2d 435 (2003).
26
     Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
27
     See id. See, also, A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205,
     784 N.W.2d 907 (2010).
                                      - 602 -
              Nebraska Supreme Court Advance Sheets
                       304 Nebraska Reports
                       RUTLEDGE v. CITY OF KIMBALL
                            Cite as 304 Neb. 593

between Ford and the City; therefore, the intentional torts
exception preserves sovereign immunity.28
   [13] Statutes that purport to waive the protection of sov-
ereign immunity of the State or its subdivisions are strictly
construed in favor of the sovereign and against the waiver.29
While Rutledge’s claim is characterized as one of negligence,
no claim would exist but for Ford’s alleged battery. At oral
argument, Rutledge conceded that there never would have been
a lawsuit had she not been assaulted. Thus, regardless of how
the claim is pled, Rutledge’s claim is inextricably linked to a
battery. Accordingly, the alleged negligence falls within the
intentional torts exception to the PSTCA and the City has not
waived its sovereign immunity.
                         CONCLUSION
   We conclude that Rutledge’s negligence claim arises out of
a battery and thus is barred by the intentional torts exception to
the PSTCA. We affirm the judgment of the district court.
                                                      Affirmed.

28
     See Johnson v. State, supra note 10.
29
     Patterson v. Metropolitan Util. Dist., supra note 1.

   Papik, J., concurring.
   I agree with the court’s determination that the City of
Kimball is immune from Rutledge’s suit under Neb. Rev. Stat.
§ 13-910(7) (Reissue 2012) because it arises out of a battery. I
write separately to express concern regarding the soundness of
the primary case upon which the plaintiff relies, Doe v. Omaha
Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
   As the court notes, we held in Doe that a claim that a school
district negligently failed to protect one student from being
sexually assaulted by another did not “arise out of” an assault
and thus could proceed under the Political Subdivisions Tort
Claims Act (PSTCA). We held that the claim did not arise
out of an assault, because the plaintiff alleged that the school
                              - 603 -
          Nebraska Supreme Court Advance Sheets
                   304 Nebraska Reports
                  RUTLEDGE v. CITY OF KIMBALL
                       Cite as 304 Neb. 593

district breached a legal duty independent of any employ-
ment relationship between it and the assailant. We said that
the claim was “not based upon the assault itself” and that
the plaintiff “could not prevail merely by proving that it
occurred.” Doe, 273 Neb. at 88, 727 N.W.2d at 456. I do not
believe, however, that this analysis is consistent with our gen-
eral principles of statutory interpretation, the particular way
in which we have said that the PSTCA should be interpreted,
or our case law.
   We generally interpret statutes according to their plain and
ordinary meaning. See State ex rel. Peterson v. Creative Comm.
Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019). As we have
observed, the use of the phrase “arising out of” in § 13-910(7)
means that more than just claims for the listed intentional torts
are exempted and that plaintiffs may not reframe claims that
arise out of those intentional torts to escape the exemption. See
Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508
(2011). So when does a claim “arise out of” one of the listed
intentional torts? In a case involving identical language in the
Federal Tort Claims Act, Justice O’Connor explained that if the
phrase “arising out of an assault or battery” is given its ordinary
meaning, it would cover any case in which a battery is essential
to the claim. Sheridan v. United States, 487 U.S. 392, 108 S.
Ct. 2449, 101 L. Ed. 2d 352 (1988) (O’Connor, J., dissenting;
Rehnquist, C.J., and Scalia, J., join). In my view, this is cor-
rect. A claim may arise out of more than just a battery, but if
the claim would not exist without a battery, as a matter of plain
language, it arises out of a battery.
   Even if I were not persuaded that the plain language of
§ 13-910(7) can only be read to exempt any claim that would
not exist without one of the intentional torts enumerated therein,
I believe that reading should still control under our principles
for interpreting the PSTCA. We have said that because stat-
utes that waive sovereign immunity are to be strictly con-
strued against waiver, exemptions from a waiver of sovereign
immunity must be read broadly. See Stick v. City of Omaha,
                              - 604 -
         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                  RUTLEDGE v. CITY OF KIMBALL
                       Cite as 304 Neb. 593

289 Neb. 752, 857 N.W.2d 561 (2015). If § 13-910(7) is read
broadly, it would certainly seem to exempt cases in which an
assault, battery, or one of the other listed intentional torts was
essential to the claim.
   Not only is this interpretation of § 13-910(7) consistent
with its language and our rules for interpreting the PSTCA,
we have previously relied on this interpretation to hold that a
claim is barred. In Britton, we held that a claim of negligence
was barred, explaining that “but for the battery, there would
have been no claim.” 282 Neb. at 386, 803 N.W.2d at 518. The
court relies on similar reasoning in this case, concluding that
Rutledge would have no claim but for the alleged battery.
   It is difficult for me to reconcile the result in Doe v. Omaha
Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007), with
the foregoing. The plaintiff in Doe clearly would not have
had a claim if not for the assault. That, it seems to me, should
have been the end of the matter for all the reasons discussed
above. And yet, the plaintiff was allowed to proceed because
there was a breach of an “independent legal duty, unrelated to
any possible employment relationship.” Id. at 88, 727 N.W.2d
at 456.
   In this case, Rutledge attempts to argue that, as in Doe, the
defendant breached a legal duty independent of an employ-
ment relationship. I think that the court reasonably explains
why Rutledge did not identify and certainly did not plead facts
demonstrating such a duty and that it is thus not necessary to
confront the viability of Doe today. Before we rely on Doe
again, however, I believe we should consider whether it is
consistent with our general approach and specific decisions in
this area.
