81-8,219. State Tort Claims Act; claims exempt.
The State Tort Claims Act shall not apply to:
(1) Any claim based upon an act or omission of an employee of the state, exercising due care, in the execution of a statute, rule, or regulation, whether or not such statute, rule, or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion is abused;
(2) Any claim arising with respect to the assessment or collection of any tax or fee, or the detention of any goods or merchandise by any law enforcement officer;
(3) Any claim for damages caused by the imposition or establishment of a quarantine by the state whether such quarantine relates to persons or property;
(4) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contract rights, except that this subdivision does not apply to a claim under the Healthy Pregnancies for Incarcerated Women Act;
(5) Any claim arising out of misrepresentation or deceit, except that, in cases of adoption or placement, the State Tort Claims Act shall apply to a claim arising out of misrepresentation or deceit by the Department of Health and Human Services in failing to warn, notify, or inform of a ward's mental and behavioral health history, educational history, and medical history, including any history as a victim or perpetrator of sexual abuse;
(6) Any claim by an employee of the state which is covered by the Nebraska Workers' Compensation Act;
(7) Any claim based on activities of the Nebraska National Guard when such claim is cognizable under the Federal Tort Claims Act, 28 U.S.C. 2674, or the federal National Guard Claims Act, 32 U.S.C. 715, or when such claim accrues as a result of active federal service or state service at the call of the Governor for quelling riots and civil disturbances;
(8) Any claim based upon the failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by or leased to the state to determine whether the property complies with or violates any statute, ordinance, rule, or regulation or contains a hazard to public health or safety unless the state had reasonable notice of such hazard or the failure to inspect or inadequate or negligent inspection constitutes a reckless disregard for public health or safety;
(9) Any claim based upon the issuance, denial, suspension, or revocation of or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, or order. Such claim shall also not be filed against a state employee acting within the scope of his or her office. Nothing in this subdivision shall be construed to limit the state's liability for any claim based upon the negligent execution by a state employee in the issuance of a certificate of title under the Motor Vehicle Certificate of Title Act and the State Boat Act except when such title is issued upon an application filed electronically by an approved licensed dealer participating in the electronic dealer services system pursuant to section 60-1507;
(10) Any claim arising out of the malfunction, destruction, or unauthorized removal of any traffic or road sign, signal, or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction, or removal. Nothing in this subdivision shall give rise to liability arising from an act or omission of any governmental entity in placing or removing any traffic or road signs, signals, or warning devices when such placement or removal is the result of a discretionary act of the governmental entity;
(11) Any claim arising out of snow or ice conditions or other temporary conditions caused by nature on any highway as defined in section 60-624, bridge, public thoroughfare, or other state-owned public place due to weather conditions. Nothing in this subdivision shall be construed to limit the state's liability for any claim arising out of the operation of a motor vehicle by an employee of the state while acting within the course and scope of his or her employment by the state;
(12) Any claim arising out of the plan or design for the construction of or an improvement to any highway as defined in such section or bridge, either in original construction or any improvement thereto, if the plan or design is approved in advance of the construction or improvement by the governing body of the governmental entity or some other body or employee exercising discretionary authority to give such approval;
(13) Any claim arising out of the alleged insufficiency or want of repair of any highway as defined in such section, bridge, or other public thoroughfare. Insufficiency or want of repair shall be construed to refer to the general or overall condition and shall not refer to a spot or localized defect. The state shall be deemed to waive its immunity for a claim due to a spot or localized defect only if the state has had actual or constructive notice of the defect within a reasonable time to allow repair prior to the incident giving rise to the claim;
(14)(a) Any claim relating to recreational activities on property leased, owned, or controlled by the state for which no fee is charged (i) resulting from the inherent risk of the recreational activity, (ii) arising out of a spot or localized defect of the premises unless the spot or localized defect is not corrected within a reasonable time after actual or constructive notice of the spot or localized defect, or (iii) arising out of the design of a skatepark or bicycle motocross park constructed for purposes of skateboarding, inline skating, bicycling, or scootering that was constructed or reconstructed, reasonably and in good faith, in accordance with generally recognized engineering or safety standards or design theories in existence at the time of the construction or reconstruction. For purposes of this subdivision, the state shall be charged with constructive notice only when the failure to discover the spot or localized defect of the premises is the result of gross negligence.
(b) For purposes of this subdivision:
(i) Recreational activities include, but are not limited to, whether as a participant or spectator: Hunting, fishing, swimming, boating, camping, picnicking, hiking, walking, running, horseback riding, use of trails, nature study, waterskiing, winter sports, use of playground equipment, biking, roller blading, skateboarding, golfing, athletic contests; visiting, viewing, or enjoying entertainment events, festivals, or historical, archaeological, scenic, or scientific sites; and similar leisure activities;
(ii) Inherent risk of recreational activities means those risks that are characteristic of, intrinsic to, or an integral part of the activity;
(iii) Gross negligence means the absence of even slight care in the performance of a duty involving an unreasonable risk of harm; and
(iv) Fee means a fee to participate in or be a spectator at a recreational activity. A fee shall include payment by the claimant to any person or organization other than the state only to the extent the state retains control over the premises or the activity. A fee shall not include payment of a fee or charge for parking or vehicle entry.
(c) This subdivision, and not subdivision (8) of this section, shall apply to any claim arising from the inspection or failure to make an inspection or negligent inspection of premises owned or leased by the state and used for recreational activities; or
(15) Any claim arising as a result of a special event during a period of time specified in a notice provided by a political subdivision pursuant to subsection (3) of section 39-1359.
Source
Cross References
Annotations
1. Nature of defense
2. Discretionary function
3. Misrepresentations
4. Highways and roads
5. Recreational activities
6. Miscellaneous
1. Nature of defense
An exception to the State's sovereign immunity under this section is not a waivable affirmative defense which the State must plead and prove, but, rather, is a matter of sovereign immunity implicating subject matter jurisdiction which the State may raise at any time, including for the first time on appeal. Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
The exceptions to the general waiver of tort immunity provided for in the State Tort Claims Act are matters of defense which must be pled and proved by the State. Sherrod v. State Dept. of Correctional Services, 251 Neb. 355, 557 N.W.2d 634 (1997); D.M. v. State, 23 Neb. App. 17, 867 N.W.2d 622 (2015).
A defendant may affirmatively plead that the plaintiff has failed to state a cause of action under this section because an exception to the waiver of sovereign immunity applies. Bojanski v. Foley, 18 Neb. App. 929, 798 N.W.2d 134 (2011).
2. Discretionary function
The decision to seek a mental health commitment of an inmate who was believed to be mentally ill and dangerous was discretionary where the inmate was not admitted for emergency protective custody. Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).
Sovereign immunity barred a claim against the State of Nebraska and Cass County concerning a sight-restricted railroad crossing at which a collision occurred because neither the State nor the county had any mandatory legal duty to improve any sight restrictions at the crossing. Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
Sovereign immunity barred a claim against the State of Nebraska and Cass County concerning the lack of pavement markings at a railroad crossing at which a collision occurred because the decision of whether to place pavement markings at the crossing was discretionary. Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
Sovereign immunity barred a failure-to-warn claim concerning a sight-restricted railroad crossing; neither the State of Nebraska nor Cass County had a nondiscretionary duty to warn where the truck wash facility alleged to be the cause of the sight restriction was built by a private party on private property and was readily apparent to a motorist approaching the crossing. Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
The discretionary function exception is expressed in nearly identical language in the State Tort Claims Act and the Political Subdivisions Tort Claims Act; thus, cases construing the state exception apply as well to the exception granted to political subdivisions. Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d 605 (1998).
Pursuant to subdivision (1)(a) of this section, applicability of the discretionary function exception of the State Tort Claims Act depends on the conduct in question, not on the identity of the actor. Security Inv. Co. v. State, 231 Neb. 536, 437 N.W.2d 439 (1989).
Pursuant to subdivision (1)(a) of this section, judgment or choice is essential and indispensable for discretionary conduct excepted from liability under the State Tort Claims Act. The discretionary function exception protects or excepts only governmental decision, action, or conduct based on a permissible exercise of a public policy judgment. The discretionary function exception is inapplicable to a claim under the act if a statute, regulation, or policy specifically prescribes a course of governmental action or conduct. Security Inv. Co. v. State, 231 Neb. 536, 437 N.W.2d 439 (1989).
The discretionary function or duty exemption in the State Tort Claims Act extends only to the basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions. Wickersham v. State, 218 Neb. 175, 354 N.W.2d 134 (1984).
3. Misrepresentations
The misrepresentation exception to the waiver of sovereign immunity, which must be strictly construed in favor of the government, can apply to claims for personal injuries as well as economic injuries and to claims not involving business transactions. Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
Where the gravamen of the complaint is the negligent performance of operational tasks rather than misrepresentation, the state cannot rely upon the misrepresentation exclusion. Wickersham v. State, 218 Neb. 175, 354 N.W.2d 134 (1984).
4. Highways and roads
Under subsection (9) of this section, the State is immune from liability against allegations of a malfunctioning traffic signal unless the malfunction was not corrected by the State within a reasonable time after it received actual or constructive notice of the problem. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
Pursuant to subsection (10) of this section, the State was not immune from suit when the defective condition of a highway, rather than a temporary condition caused by nature such as weather conditions, was proved as a proximate cause of an automobile accident. Woollen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999).
The duty to use reasonable and ordinary care in the construction, maintenance, and repair of highways and bridges so that they will be reasonably safe for the traveler using them while in the exercise of reasonable and ordinary prudence has now been imposed under both the State Tort Claims Act and the Political Subdivisions Tort Claims Act. Hendrickson v. City of Kearney, 210 Neb. 8, 312 N.W.2d 677 (1981).
The state has the duty to use ordinary and reasonable care in the construction, maintenance, and repair of its highways including the shoulders of a paved or hard-surfaced highway. Richardson & Gillispie v. State, 200 Neb. 225, 263 N.W.2d 442 (1978).
A claim that the State failed to warn of a condition of the road resulting from rain "arises out of" a condition of the road due to weather conditions as meant by subsection (10) of this section. As a result, the State has not waived its sovereign immunity regarding such a claim. Hammond v. Nemaha Cty., 7 Neb. App. 124, 581 N.W.2d 82 (1998).
5. Recreational activities
A recreational activity involves something more than simply being physically on property maintained by the State; it must involve some leisure activity other than merely being present on state-maintained land. Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020).
For the recreational activity exception to apply, the claim must relate to a recreational activity on property leased, owned, or controlled by the State; the claim must result from an inherent risk of that recreational activity; and no fee must have been charged for the plaintiff to participate in, or be a spectator at, the recreational activity. Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020).
It is necessary as a threshold matter to identify the recreational activity, if any, in which the plaintiff was engaged as either a participant or a spectator. Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020).
6. Miscellaneous
"[A]ny law enforcement officer" covered by the exception to the waiver of sovereign immunity in the State Tort Claims Act, specifically subdivision (2) of this section, includes all law enforcement officers, including Department of Correctional Services personnel. Rouse v. State, 301 Neb. 1037, 921 N.W.2d 355 (2019).
Tort claims by a parolee against State officials and employees were barred by the false imprisonment exception, under subdivision (4) of this section, where the parolee alleged that he turned himself in to authorities and was reincarcerated for almost 2 months despite his protests that he had been correctly paroled. Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
Under subsection (4) of this section, the State has not waived its sovereign immunity for claims of fraudulent concealment. Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
Where a plaintiff's tort claim is based on the mere fact of government employment or on the employment relationship between the intentional tort-feasor and the government, the exception applies and the State is immune from suit. Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005).
Even though this section has been amended in 1993, 1999, 2004, 2005, and 2007, claims for invasion of privacy are still not among those claims for which sovereign immunity provides protection for State employees or officers. Bojanski v. Foley, 18 Neb. App. 929, 798 N.W.2d 134 (2011).