- 18 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

Telena Moser, Personal Representative 

of the Estate of Terry L. Berry, Jr., 

deceased, appellant, v. State 

of Nebraska, appellee.

___ N.W.2d ___

Filed September 4, 2020. No. S-19-726.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision made by the court 

below.

3. Tort Claims Act: Appeal and Error. Whether the allegations made by 

a plaintiff constitute a cause of action under the State Tort Claims Act 

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.

4. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception 

to the State’s waiver of immunity under the State Tort Claims Act is an 

issue that the State may raise for the first time on appeal and that a court 

may consider sua sponte.

5. Tort Claims Act: Legislature: Immunity: Waiver. Through the State 

Tort Claims Act, the Legislature has waived the State’s immunity with 

respect to certain, but not all, types of tort actions.

6. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly 

construed in favor of the sovereign and against the waiver. A waiver 

of sovereign immunity is found only where stated by the most express 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/06/2020 09:08 AM CST
- 19 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

language of a statute or by such overwhelming implication from the text 

as will allow no other reasonable construction.

7. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

8. Assault: Political Subdivisions Tort Claims Act: Tort Claims Act.

Because the assault and battery exceptions of the State Tort Claims Act 

and the Political Subdivisions Tort Claims Act are nearly identical, cases 

construing the Political Subdivisions Tort Claims Act are applicable to 

cases under the State Tort Claims Act and vice versa.

9. Public Policy. While the doctrine of stare decisis is entitled to great 

weight, it is grounded in the public policy that the law should be stable, 

fostering both equality and predictability of treatment.

10. Appeal and Error. Remaining true to an intrinsically sounder doctrine 

better serves the values of stare decisis than following a more recently 

decided case inconsistent with the decisions that came before it.

Appeal from the District Court for Johnson County: Ricky 

A. Schreiner, Judge. Affirmed.

Thomas J. Monaghan and Rodney C. Dahlquist, Jr., of 

Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., 

for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, 

Solicitor General, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Heavican, C.J.

INTRODUCTION

Terry L. Berry, Jr., was incarcerated at the Tecumseh State 

Correctional Institution (TSCI), an institution under the control 

of the Nebraska Department of Correctional Services (DCS). 

On April 10, 2017, Berry was moved into a cell with Patrick W. 

Schroeder, another inmate at TSCI. Five days later, Schroeder 

strangled Berry, who died of his injuries on April 19.
- 20 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

Telena Moser, the personal representative of Berry’s estate, 

filed a claim with the State of Nebraska under the State Tort 

Claims Act (STCA). After the statutory time for the State to 

respond to her claim had passed, Moser filed this suit on behalf 

of Berry’s estate. The suit alleges negligence and wrongful 

death on the part of DCS. The district court dismissed Moser’s 

complaint. Moser appeals.

We granted the State’s motion to bypass the Nebraska Court 

of Appeals due to the public interest involved in this case 

and, as asserted in the State’s petition to bypass, to address an 

apparent “inconsistency in this Court’s opinions in applying 

the strict construction legal principles of the STCA exceptions 

to sovereign immunity as those legal principles have been 

explained and applied by this Court’s more recent decisions,” 

specifically in the context of the intentional tort exception.

We find that the State has immunity under the intentional 

tort exception to the STCA, and accordingly, we affirm the 

order dismissing Moser’s suit, albeit under different grounds 

for immunity than those relied upon by the district court.

BACKGROUND

In this case, the district court granted the State’s motion to 

dismiss; therefore, the operative facts are those set forth in 

Moser’s complaint. According to that complaint, Berry was 

incarcerated with DCS on November 20, 2015, after being 

convicted of second degree forgery and assault by a confined 

person. He was sentenced to 3 to 4 years’ imprisonment.

Schroeder was convicted of first degree murder, use of 

a weapon to commit a felony, and six counts of second 

degree forgery. He was sentenced to life imprisonment and was 

committed to DCS on August 31, 2006. Schroeder had been 

committed to TSCI since 2007, and according to the complaint, 

he was known for “having a bad temper.” Berry was also 

known for having behavioral issues and had been identified as 

“needing anger management programming.”

On April 10, 2017, Schroeder was notified that he would 

need to move out of his cell and into a different unit and 
- 21 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

that he would be “double bunked.” Schroeder told staff that 

he would not accept being double bunked. Fifteen minutes 

before he was due to be moved, Schroeder was told that his 

new cellmate would be Berry. Schroeder objected, because “he 

knew Berry to have enemies [and be] talkative” and because 

Berry was “believed to be dirty.” On that same day, Berry was 

notified that he was being moved and that “if he refused the 

move, [he] would be double bunked with another inmate.”

On April 15, 2017, Schroeder physically attacked Berry, who 

was subsequently transported to a local hospital and then to a 

hospital in Lincoln, Nebraska. Berry was declared brain dead 

on April 17 and was removed from life support on April 19. An 

autopsy showed that Berry’s cause of death was asphyxia due 

to strangulation.

On September 15, 2017, Moser filed an administrative claim 

under the STCA. No action was taken within 6 months. Moser 

filed this action on November 26, 2018. In it, she asserted 

three causes of action: (1) the State’s negligence in breaching its duty to protect Berry from harms against which he was 

unable to prevent himself, (2) its negligence per se in failing 

to comply with “the requirements of [DCS] Administrative 

Regulation 210.01,” and (3) wrongful death under Neb. Rev. 

Stat. § 30-809 et seq. (Reissue 2016).

The State filed a motion to dismiss for lack of subject matter 

jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1), specifically 

arguing that the discretionary function exception of Neb. Rev. 

Stat. § 81-8,219(1) (Reissue 2014) to the STCA gave the State 

immunity from suit. The State also argued that Moser failed to 

state a claim under § 6-1112(b)(6). The district court granted 

that motion, concluding that the State was immune from suit 

under § 81-8,219(1).

Moser appeals.

ASSIGNMENTS OF ERROR

On appeal, Moser assigns that the district court erred in 

(1) finding that the mandatory safety regulations designed to 
- 22 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

prevent inmate assaults were discretionary rather than mandatory, (2) finding that the decision by TSCI staff to “double 

bunk” Berry and Schroeder was a policy decision rather than 

an operational decision, (3) finding that the discretionary 

function exception applied to the decision to double bunk 

Berry with Schroeder and to maintain such housing despite 

warnings regarding Berry’s safety, (4) finding that the State 

acted with due care when it placed Berry with Schroeder and 

when it maintained this housing despite warnings regarding 

Berry’s safety, and (5) granting the State’s motion to dismiss 

under § 81-2,219(1).

STANDARD OF REVIEW

[1-3] 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 Statutory interpretation 

presents a question of law, for which an appellate court has 

an obligation to reach an independent conclusion irrespective 

of the decision made by the court below. 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

[4] An exception to the State’s waiver of immunity under the 

STCA is an issue that the State may raise for the first time on 

appeal and that a court may consider sua sponte. 4

1 Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 

(2018).

2 Id.

3 Id.

4 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
- 23 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

ANALYSIS

On appeal, Moser argues that the district court erred in 

granting the State’s motion to dismiss. Her assignments of error 

center on the district court’s finding that § 81-8,219(4) barred 

her claim.

[5] Through the STCA, the Legislature has waived the 

State’s immunity with respect to certain, but not all, types of 

tort actions. 5 As pertinent here, the STCA waives the State’s 

sovereign immunity for tort claims against the State on account 

of personal injury 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 injury. 6

But there are exceptions to the State’s waiver of immunity. 

As relevant to this appeal, § 81-8,219 provides that the STCA 

shall not apply to the following:

(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;

. . . .

(4) Any claim arising out of assault, battery, false 

imprisonment, false arrest, malicious prosecution, abuse 

of process, libel, slander, or interference with contract 

rights.

The State argues, for the first time in its brief on appeal, 

that Moser’s lawsuit is barred, not just by § 81-8,219(1)—the 

grounds argued below which the district court relied upon—but 

5 Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).

6 See Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014).
- 24 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

also by the intentional tort exception found in § 81-8,219(4). 

The State notes that this court is bound to construe statutes 

waiving the State’s immunity strictly and in favor of the State 

and against the waiver, and it argues that the plain language 

of the intentional tort exception applies to “[a]ny claim arising 

out of assault [or] battery.” The State suggests that we should 

adopt the reasoning of the concurrence filed in our recent 

decision in Rutledge v. City of Kimball 7 and overrule our earlier decision in Doe v. Omaha Pub. Sch. Dist.

 8

As an initial matter, we observe that this court may consider the State’s contention that the exception set forth in 

§ 81-8,219(4) is applicable. 9 We have held that “when a plaintiff’s complaint shows on its face that a claim is barred by 

one of the exceptions [to the State’s waiver of immunity], the 

State’s inherent immunity from suit is a jurisdictional issue that 

an appellate court cannot ignore.” 10

[6,7] It is well settled that statutes that purport to waive 

the protection of sovereign immunity of the State or its 

subdivisions are strictly construed in favor of the sovereign 

and against the waiver. 11 A waiver of sovereign immunity is 

found only where stated by the most express language of a 

statute or by such overwhelming implication from the text 

as will allow no other reasonable construction. 12 Statutory 

language is to be given its plain and ordinary meaning, and 

an appellate court will not resort to interpretation to ascertain 

the meaning of statutory words which are plain, direct, and 

unambiguous. 13

7 Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019).

8 Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).

9 Davis v. State, supra note 4.

10 Id. at 979, 902 N.W.2d at 186.

11 Jill B. & Travis B. v. State, supra note 5.

12 Id.

13 Id.
- 25 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

As we noted in Jill B. & Travis B. v. State: 14

The principle of strict construction predated the 

[STCA] and has been consistently followed after its 

adoption. We had long said that statutes authorizing suit 

against the State are to be strictly construed, since they 

are in derogation of the State’s sovereignty. Following 

adoption of the [STCA], we emphasized that statutes in 

derogation of sovereignty should be strictly construed in 

favor of the State, so that its sovereignty may be upheld 

and not narrowed or destroyed, and should not be permitted to divest the State or its government of any of its 

prerogatives, rights, or remedies, unless the intention of 

the Legislature to effect this object is clearly expressed. 

We also said that because the State has given only conditional consent to be sued and there is no absolute waiver 

of immunity by the State, requirements of the [STCA] 

must be followed strictly. Our most recent pronouncements uphold these principles. Because the rationale for 

the intentional torts exception . . . has not always been 

clearly expressed, the rule of strict construction becomes 

critically important.

[8] Because the assault and battery exceptions of the STCA 

and the Political Subdivisions Tort Claims Act (PSTCA) are 

nearly identical, cases construing the PSTCA are applicable to 

cases under the STCA and vice versa. 15 Our case law on the 

assault and battery exception to this point has generally found 

immunity in cases where the actor committing the assault or 

battery was an employee or agent of the State, but not where 

the actor was a nongovernmental actor.

This court was presented with the intentional tort exception to the STCA in Johnson v. State. 16 In Johnson, an inmate 

with DCS filed a claim under the STCA, alleging that she 

14 Id. at 68-69, 899 N.W.2d at 251-52.

15 See Amend v. Nebraska Pub. Serv. Comm., supra note 1.

16 Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005).
- 26 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

was sexually assaulted by a DCS employee. We noted that the 

phrase “arising out of an assault or battery” was broader than 

the phrase “for assault or battery” and thus covered “‘claims 

. . . that sound in negligence but stem from a battery.’” 17 We 

further found that the intentional tort exception applied and 

that the State was immune. We explained:

Where the plaintiff’s tort claim is based on the mere fact 

of government employment (such as a respondeat superior claim) or on the employment relationship between the 

intentional tort-feasor and the government (such as a negligent supervision or negligent hiring claim), the exception in § 81-8,219(4) applies and the State is immune 

from suit. 18

We were again presented with the intentional tort exception 

in Doe, a case governed by the PSTCA involving a nongovernmental actor. 19 In Doe, a student sued a school district, alleging 

she was sexually assaulted by a fellow student during school 

hours and while on school property. Citing the U.S. Supreme 

Court’s decision in Sheridan v. United States,

 20 we held that the 

claim was not barred by the PSTCA because it was

not based upon the assault itself, and [the plaintiff] could 

not prevail merely by proving that it occurred. Rather, 

[the plaintiff alleged] that before the alleged assault, [the 

school district] breached an independent legal duty, unrelated to any possible employment relationship between 

the assailant and [the school district], to take reasonable steps to prevent foreseeable violence from occurring on its premises. . . . The claim therefore does 

not arise from an assault, but, rather, from an alleged 

17 Id. at 320, 700 N.W.2d at 624.

18 Id. at 323, 700 N.W.2d at 625.

19 Doe v. Omaha Pub. Sch. Dist., supra note 8.

20 Sheridan v. United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 

352 (1988).
- 27 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

negligent failure to protect a student from a foreseeable 

act of violence. 21

In 2011, we decided Britton v. City of Crawford.

 22 There, the 

plaintiff’s decedent was shot and killed by law enforcement. 

His estate filed suit against the city, which argued that it was 

immune from suit under the intentional tort exception to the 

PSTCA because the claim arose out of a battery.

We observed in Britton, as we had held in Johnson, that the 

phrase “arising out of an assault or battery” created a broader 

exemption than one for an assault or battery. We distinguished 

Johnson, noting that although the claims were based on the 

officers’ government employment, the death of the plaintiff’s 

decedent was not the result of negligent supervision or hiring. 

We ultimately concluded that the city had immunity from suit, 

noting that without

the battery, there would have been no claim. No semantic 

recasting of events can alter the fact that the shooting was 

the immediate cause of [the decedent’s] death and, consequently, the basis of [the] claim. Even if it is possible that 

negligence was a contributing factor to the [decendent’s] 

death, the alleged negligence was inextricably linked to 

a battery. 23

We used similar reasoning in Jill B. & Travis B.,

 24 which 

involved immunity under § 81-8,219(5). That section provided 

an exception from immunity under the STCA for “any claim 

arising out of misrepresentation or deceit.” 25 We held that the 

State was entitled to immunity, reasoning that “[n]o matter 

how the [plaintiffs] try to frame their complaint, their claim 

arises out of a misrepresentation. . . . ‘[A] plaintiff cannot 

21 Doe, supra note 8, 273 Neb. at 88, 727 N.W.2d at 456.

22 Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).

23 Id. at 386, 803 N.W.2d at 518.

24 Jill B. & Travis B. v. State, supra note 5.

25 § 81-8,219(5).
- 28 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

circumvent the misrepresentation exception simply through 

artful pleading of [the] claims.’” 26

We most recently addressed this issue in Rutledge, wherein 

the plaintiff alleged that a city employee had attacked and 

choked her in a building belonging to the city. 27 On appeal, 

the plaintiff relied on Doe to argue that the city was negligent 

in failing to protect her and the rest of the public from its 

employee. 28 We distinguished Doe, noting the absence of an 

allegation that the assailant was an agent or employee of the 

political subdivision. The situation in Rutledge presented an 

employment relationship, and accordingly, we found the city to 

be immune from suit. In Rutledge, we were not presented with 

the question of whether Doe was correctly decided, but we find 

that question squarely before us today.

As we noted above, our propositions of statutory interpretation require us to give statutory language its plain and 

ordinary meaning. And we have done as much, particularly 

in Johnson, and later in Britton, when we held that the use 

of the phrase “arising out of” in the intentional tort exception to the PSTCA meant that more than just claims for listed 

intentional torts were exempted and that plaintiffs may not 

reframe claims that arise out of those intentional torts to escape 

the exemption. 29

Our decision in Doe,

 30 where we held that the claim was not 

based upon the underlying assault but upon the breach of the 

legal duty to take reasonable steps to prevent foreseeable violence from occurring on its premises, was rooted in Sheridan.

 31

But Doe is an outlier in that it is inconsistent with our prior and 

26 Jill B. & Travis B., supra note 5, 297 Neb. at 92-93, 899 N.W.2d at 265.

27 Rutledge v. City of Kimball, supra note 7.

28 Id. See Doe v. Omaha Pub. Sch. Dist., supra note 8.

29 See, Britton v. City of Crawford, supra note 22; Johnson v. State, supra 

note 16.

30 Doe v. Omaha Pub. Sch. Dist., supra note 8.

31 Sheridan v. United States, supra note 20.
- 29 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

subsequent case law generally setting forth a broad definition 

of the phrase “arising out of an assault or battery.”

A broad definition is consistent with the plain language of 

that phrase, which suggests that if a claim would not exist 

without an assault or battery, it arises out of that battery and 

is more consistent with our other case law on this issue. As 

Justice O’Connor noted in her dissenting opinion in Sheridan, 

“‘arising out of,’” if given its ordinary meaning, would cover 

any case in which a battery is essential to the claim. 32 We can 

conceive of no reason why the scope or meaning of the phrase 

“arising out of,” as we defined it in Britton, should change 

depending on the status of the actor as governmental versus 

nongovernmental.

Additionally Sheridan, upon which we relied in Doe, did 

not purport to give the waiver of sovereign immunity in the 

Federal Tort Claims Act a strict construction. Indeed, the U.S. 

Supreme Court has not uniformly used the same strict construction canon with respect to waivers of sovereign immunity. 

It recently noted that such a canon is simply “a tool for interpreting the law, and we have never held that it displaces the 

other traditional tools of statutory construction.” 33

Conversely, this court has long strictly construed waivers of 

immunity in favor of a State or political subdivision. In order 

to strictly construe against a waiver of sovereign immunity, 

we must read exemptions from a waiver of sovereign immunity broadly. 34 Of course, as the dissent to this opinion notes, 

courts must be careful to interpret exceptions to a waiver of 

immunity in a way that does not defeat the initial purpose of 

32 Id., 487 U.S. at 409 (O’Connor, J., dissenting) (citing Kosak v. United 

States, 465 U.S. 848, 104 S. Ct. 1519, 79 L. Ed. 2d 860 (1984), and United 

States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985)).

33 Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 589, 128 S. Ct. 

2007, 170 L. Ed. 2d 960 (2008).

34 See Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
- 30 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

waiving the government’s immunity. 35 But even in balancing 

those considerations, we are constrained by the language utilized by the Legislature. A broad reading of the phrase “arising 

out of” corresponds to a strict reading of the situations under 

which a sovereign would be entitled to immunity.

Nor is this inconsistent with the definition of the term “tort 

claim” in § 81-8,210(4), which requires, in relevant part, “the 

negligent or wrongful act or omission of any employee of 

the state.” The broad definition of the phrase “arising out of ” 

encompasses and provides immunity for, at a minimum, the 

acts of both a State actor alleged to have committed an intentional tort and one alleged to have been negligent in a situation 

that includes the commission of an intentional tort.

Although we do not dispute the dissent’s contention that one 

injury can arise from multiple wrongful acts, the plain language 

of the intentional tort exception in § 81-8,219(4) provides that 

if that injury “arise[s] out of,” in this case an assault or battery, 

the exception applies to bar the claim. With the exception of 

Doe, our interpretation of this language has been consistent and 

the Legislature has not seen fit to correct us. 36

[9,10] Respect for precedent should not prevent us from 

restoring our adherence to the Nebraska Constitution and 

statutes. 37 We have said that while the doctrine of stare decisis is entitled to great weight, it is grounded in the public 

policy that the law should be stable, fostering both equality 

and predictability of treatment. 38 And we have recognized that 

overruling precedent is justified when the purpose is to eliminate inconsistency. 39 Thus, we said that remaining true to an 

intrinsically sounder doctrine better serves the values of stare 

35 See Dolan v. U.S. Postal Service, 546 U.S. 481, 126 S. Ct. 1252, 163 L. 

Ed. 2d 1079 (2006).

36 See Doe v. Omaha Pub. Sch. Dist., supra note 8.

37 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).

38 Id.

39 Id.
- 31 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

decisis than following a more recently decided case inconsistent with the decisions that came before it. 40

Our decision in Doe was inconsistent with the approach we 

have taken in other cases as it relates to the “arising out of ” 

language, and it does not comply with our obligation to strictly 

construe the State’s waiver of immunity. 41 That decision was 

wrong, and as such, we overrule it.

We are therefore left to determine whether the intentional 

tort exception set forth in § 81-8,219(4) applies to provide the 

State immunity from Moser’s suit. We find that it does.

Although Moser’s complaint plainly alleges a negligence 

cause of action, in that complaint, Moser alleged that Schroeder 

“assault[ed]” Berry. A reading of the complaint makes it clear 

that all of Moser’s allegations, including her claims of negligence in the decision to double bunk Berry and Schroeder, 

flow from this assault.

Of course, the assault that Moser outlines in her complaint 

was horrific. But in accordance with our case law with respect 

to the intentional tort exception discussed above, we must conclude that Moser’s allegations arose out of an intentional tort 

for purposes of the STCA. To find otherwise would require this 

court to engage in the very “semantic recasting of events” that 

we rejected in Britton.

 42 This we will not do.

The Legislature may wish to revisit the State’s sovereign 

immunity in cases such as the one presented by this appeal, 

as indeed that body has done previously in response to decisions of this court. 43 But it is clear that it is the province 

of the Legislature, and not of this court, to make such policy judgments.

40 Id.

41 See Doe v. Omaha Pub. Sch. Dist., supra note 8.

42 Britton v. City of Crawford, supra note 22, 282 Neb. at 386, 803 N.W.2d 

at 518.

43 See § 81-8,219(5) (Cum. Supp. 2018) (as amended by 2018 Neb. Laws, 

L.B. 729, § 1, effective July 19, 2018).
- 32 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

Because we conclude that the State had immunity from suit 

under the intentional tort exception of the STCA, as set forth 

in § 81-8,219(4), we need not address Moser’s assignments of 

error on appeal relating to immunity under the discretionary 

function exception.

CONCLUSION

Over 50 years ago, the Legislature set the parameters for 

the State’s immunity from suit in various scenarios. This court 

strictly construes those parameters. We conclude that in this 

case, the State has immunity from suit under the intentional 

tort exception. As such, the district court did not err in dismissing Moser’s complaint. The decision of the district court 

is affirmed.

Affirmed.

Freudenberg, J., not participating.

Miller-Lerman, J., dissenting.

I respectfully disagree with the majority’s conclusion to 

dismiss this complaint based on immunity where the complaint 

generally alleges that the death of an inmate was negligently 

caused by the State’s violating its duties and its formal regulations, and specifically alleges that the State’s employees negligently “doubled bunked” a “talkative” inmate “days away from 

his parole hearing” with an expected release date in 8 months 

with a known “bad temper[ed]” inmate serving a life sentence, 

the latter of whom after 5 days of sharing a cell “wrapped his 

arm around [the former’s] neck and squeezed for five minutes” 

until “he felt certain [the former] was dead.”

In Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 

447 (2007), this court followed the reasoning of the U.S. 

Supreme Court’s holding in Sheridan v. United States, 487 

U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988), but today 

the majority chooses instead to follow the dissent in Sheridan

and overrules Doe based on its dubious notion that the U.S. 

Supreme Court and the Nebraska Supreme Court interpret 

the same statutory language so differently that adhering to 
- 33 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

U.S. Supreme Court precedent would offend Nebraska. As 

explained below, finding no meaningful difference between 

statutory interpretation habits of the Nebraska Supreme Court 

and the U.S. Supreme Court in this regard and reading the language of Neb. Rev. Stat. § 81-8,219(4) (Reissue 2014) in the 

context of the State Tort Claims Act provisions of which it is a 

part, 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.

This is one of a number of recent cases in which the State 

introduced a new theory for the first time on appeal—in 

this instance, in its appellate brief. See Candyland, LLC v. 

Nebraska Liquor Control Comm., ante p. 169, 944 N.W.2d 

740 (2020) (Miller-Lerman, J., concurring) (noting that theory 

raised for first time at oral argument); State v. Vann, ante

p. 91, 944 N.W.2d 503 (2020), (Miller-Lerman, J., concurring) (noting that theory raised for first time at oral argument 

resulted in overruling precedent). Unlike its approach in the 

trial court, the State now contends that Doe, supra, should be 

overruled and that the complaint should be dismissed based on 

the intentional tort assault exception to the waiver of sovereign 

immunity. Although appellant may have a heavy burden in 

being able to prove negligence by the State, in my view, she 

has alleged sufficient facts described below to survive a motion 

to dismiss.

The complaint filed by Telena Moser, as personal representative of the estate of Terry L. Berry, Jr., alleged that the State 

was negligent when on April 10, 2017, it placed Berry in the 

same restrictive housing cell as Patrick W. Schroeder at the 

Tecumseh State Correctional Institution (TSCI). On April 15, 

Schroeder wrapped his arm around Berry’s neck and squeezed 

for 5 minutes until he felt certain Berry was dead. Restrictive 

housing is defined by Neb. Rev. Stat. § 83-170(13) (Cum. 

Supp. 2016) as “conditions of confinement that provide limited contact with other offenders, strictly controlled movement 

while out of cell, and out-of-cell time of less than twenty-four 
- 34 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

hours per week.” The purpose of restrictive housing is to separate a violent inmate from the general population or to separate 

an inmate at risk of violence from the general population.

According to the allegations, Schroeder was serving a life 

sentence for first degree murder, was known for “having a bad 

temper,” and expressly warned a caseworker of his unwillingness to bunk with Berry. Berry was days away from a parole 

hearing, with a tentative release date of December 8, 2017.

According to the allegations, although TSCI unit managers 

knew of the risks and warnings associated with placing Berry 

and Schroeder together, they nonetheless decided to house the 

inmates together. A staff member had expressed her concerns 

regarding the placement to several other staff members, stating 

that she “‘personally felt that it was not the best idea,’” since 

Berry “‘was known to be very talkative and bothersome,’” and 

that Schroeder “‘in for life, with a temper[,] would not want 

someone like’” Berry as a cellmate.

The complaint alleges the following failures of the TSCI staff:

•“Two unit managers of TSCI were responsible for making 

the joint decision to double bunk Berry and Schroeder in 

restrictive housing, but they failed to complete the statement 

required by Administrative Regulation 210.01, wherein they 

state why the cell assignment provides each cellmate with 

reasonable safety from assault.”

•“Further, the unit managers did not complete the compatibility assessment until after each inmate was warned that they 

would be double bunked with another inmate if they did not 

comply with the directive to move cells.”

•“In short, TSCI staff did not follow proper procedure required 

by Administrative Regulation 210.01(VIII)(G).”

STATUTORY INTERPRETATION OF THE ASSAULT 

EXCEPTION IS THE SAME IN NEBRASKA 

AND U.S. SUPREME COURT

At issue is the meaning of the “arising out of assault” language found in the State Tort Claims Act, § 81-8,219(4), and 

its federal counterpart in the Federal Tort Claims Act (FTCA), 
- 35 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

28 U.S.C. § 2680(h) (2012), and specifically, whether this 

intentional tort exception to the waiver of sovereign immunity 

applies when the State is being sued for its allegedly negligent 

acts which occurred before an assault was committed by a nongovernmental actor.

We have stated that the waiver of sovereign immunity 

should be strictly construed and, as a corollary thereto, that 

the exceptions should be read broadly. See Brown v. State, 

305 Neb. 111, 939 N.W.2d 354 (2020). We have specifically 

applied this approach to the intentional tort exception portion 

of the State Tort Claims Act, § 81-8,219(4), which exception is 

derived from the FTCA. See Jill B. & Travis B. v. State, 297 

Neb. 57, 899 N.W.2d 241 (2017). The U.S. Supreme Court has 

addressed the waiver of sovereign 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, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 

(1996). And just like Nebraska, one justice has summarized the 

applicable U.S. Supreme Court law as follows: “In cases where, 

as here, the question whether a particular claim is subject to an 

exception is disputed, we have construed the FTCA exceptions 

broadly to preclude claims for actions Congress intended to 

except from the FTCA’s general waiver of immunity.” Dolan v. 

Postal Service, 546 U.S. 481, 499 n.3, 126 S. Ct. 1252, 163 L. 

Ed. 2d 1079 (2006) (Thomas, J., dissenting).

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 . . . .’” Id., 546 U.S. at 492 

(Thomas, J., dissenting). And we too have resisted the temptation to accord unduly generous interpretations of exceptions 

which would defeat the waiver. See, e.g., Brown, 305 Neb. at 

122, 939 N.W.2d at 361 (declining to read language of exception “so broadly” that it “would judicially expand” exception). 
- 36 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

Applying U.S. Supreme Court precedent and according a broad 

reading to the exception provisions 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)], [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., 847 F.2d 1031, 1037 

(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 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 controlling authority.

The majority takes this position because it insists on complete fidelity to the “strictly construe waiver” but “broadly 

construe exceptions” language. But this approach overlooks 

Nebraska’s jurisprudential experience with the “strict-broad” 

language. For example, as recently as in 2017, we considered 

another portion of the intentional tort exception provision, misrepresentation, and said: “We must strictly construe the misrepresentation exception to the waiver of sovereign immunity in 

favor of the State . . . .” Jill B. & Travis B. v. State, 297 Neb. 

57, 95, 899 N.W.2d 241, 266 (2017) (emphasis supplied). This 

verbage simply illustrates why we should thoughtfully examine 

the language and provisions of the State Tort Claims Act for 

their coherent meaning rather than decide meaning based on 

imposition of a “strict-broad” label devoid of analysis. “Our 

object should be to read the Act so as to make it ‘consistent 

and equitable’, Feres, 340 U.S. at page 139, 71 S.Ct. at page 
- 37 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

156, in which we should be untrammeled by any rule of ‘strict’ 

or ‘liberal’ construction.” Panella v. United States, 216 F.2d 

622, 624 (2d Cir. 1954).

STATE TORT CLAIMS ACT IS PATTERNED AFTER 

THE FTCA SO WE LOOK TO U.S. SUPREME 

COURT DECISIONS UNDER THE FTCA

We have long recognized that Nebraska’s State Tort Claims 

Act is patterned after the FTCA. See Johnson v. State, 270 

Neb. 316, 700 N.W.2d 620 (2005). And the FTCA was the 

culmination of a long effort to eliminate thousands of private 

claims bills at every session of Congress and thus mitigate the 

consequences of sovereign immunity from suit. United States 

v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 

(1963); Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 

L. Ed. 152 (1950). Where the U.S. Supreme Court cases have 

been clear, we have looked to U.S. Supreme Court precedent 

and legislative history of the FTCA to inform our reading of 

Nebraska statutes patterned after federal legislation. In Jill B. 

& Travis B., supra, where we were considering the “misrepresentation” exception in § 81-8,219(4), we first looked to the 

U.S. Supreme Court decisions for guidance. But where the U.S. 

Supreme Court does not directly provide the answer, we then 

consider other federal authority. See Haffke v. Signal 88, ante

p. 625, 947 N.W.2d 103 (2020) (explaining that it is appropriate to look to federal court decisions construing similar and 

parent legislation). Fortunately in this case, the U.S. Supreme 

Court’s decision in Sheridan v. United States, 487 U.S. 392, 

108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988), supplies guidance 

and resolution.

SHERIDAN OPINION (PLUS JUSTICE KENNEDY’S 

CONCURRENCE) SHOW THE STATE IS 

NOT IMMUNE FROM SUIT

In the instant case, appellant alleged that the decision of the 

TSCI staff to double bunk the victim, Berry, with the inmate 

assailant, Schroeder, was negligent because it violated their 
- 38 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

duty of care to Berry in a variety of ways. The district court 

and the majority in this case found that the negligence cause of 

action should be dismissed based on the exception provisions 

of § 81-8,219.

Language of Intentional Tort Assault Exception 

Applies to Intentional Torts Committed by 

Governmental Employees But Not to 

Intentional Torts Committed by 

Nongovernmental Assailant

As an initial matter, we quote Nebraska’s State Tort Claims 

Act as relevant to our analysis of whether appellant stated a 

cause of action. Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014) 

defines the “[t]ort claims” for which sovereign immunity is 

waived. This statute provides that such claims involve “the 

negligent or wrongful act or omission of any employee of the 

[S]tate.” See, similarly, 28 U.S.C. § 1346(b) (2012) (providing for “claims . . . caused by the negligent or wrongful act 

or omission of any employee of the Government”). Later in 

§ 81-8,219, the State Tort Claims Act provides exceptions, 

i.e., that there will be no liability for such act or omission of 

any employee of the State when the employee’s acts or omissions giving rise to the claim arise from his or her intentional 

torts. Section 81-8,219(4), the intentional tort exception, states 

that the State Tort Claims Act shall not apply to: “Any claim 

arising out of assault, battery, false imprisonment, false arrest, 

malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” The 

FTCA exception language is comparable to § 81-8,219(4), but 

the FTCA includes an additional proviso not relevant here. 

The intentional tort exception, 28 U.S.C. § 2860(h), provides 

the United States shall not be liable for “[a]ny claim arising out of assault, battery . . . .” I note that Congress and the 

Legislature did not bar any “suit” arising out of an assault; 

they barred only “claims,” which suggests that the exception 

was associated with intentional acts of governmental employees against whom a claim could be filed as distinguished from 
- 39 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

a nongovernmental intentional tort-feasor against whom a suit 

can be filed.

Cases Interpreting Intentional Tort Assault 

Exception and Legislative History Show That 

It Applies to Intentional Torts Committed 

by Governmental Employees but Not 

to Intentional Torts Committed by 

Nongovernmental Assailant

We have stated that the State Tort Claims Act, like the 

FTCA, represented the legislators’ willingness “to waive sovereign immunity where its employees acted negligently but not 

where they acted deliberately or recklessly—at least as to the 

specified torts.” Jill B. & Travis B. v. State, 297 Neb. 57, 73, 

899 N.W.2d 241, 254 (2017) (emphasis supplied). That is, we 

have recognized that the intentional tort-feasor addressed in 

§ 81-8,219(4) is a governmental employee.

The FTCA legislative history pertaining to the assault exception was summarized in Panella v. United States, 216 F.2d 

622 (2d Cir. 1954), the case relied upon in Sheridan, supra, 

for its conclusion that a cause of action may exist where there 

is an allegation of antecedent negligence by the government, 

notwithstanding the existence of an assault in the narrative. 

In particular, the legislative history of the FTCA shows that 

the “‘assault and battery’ exception related to acts of government employees.” Panella, 216 F.2d at 626. The debate of 

“Hearings on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 

p. 33” in 1942 shows the following questions and answers: 

“‘Mr. Robsion: On that point of deliberate assault[,] that is 

where some agent of the Government gets in a fight with 

some fellow? Mr. Shea: Yes. Mr. Robsion: And socks him? 

Mr. Shea: That is right.’” Panella, 216 F.2d at 626 (emphasis 

omitted).

Most of our string of cases discussing the intentional tort 

assault exception under the State Tort Claims Act, and its 

roughly comparable counterpart in the Political Subdivisions 

Tort Claim Act, have involved intentional acts committed by 
- 40 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

state or local governmental employees, and we have applied 

the exception and found immunity thus resulting in dismissal. 

E.g., Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 

746 (2019) (involving city employee choking victim); Britton 

v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011) 

(involving law enforcement shooting the decedent); Johnson 

v. State, 270 Neb. 316, 700 N.W.2d 620 (2005) (involving sexual assault by Department of Correctional Services 

employee). However, in Doe v. Omaha Pub. Sch. Dist., 273 

Neb. 79, 727 N.W.2d 447 (2007), a student was the assailant 

and the exception did not apply; hence, the political subdivision waived immunity.

The majority relies on this string of cases (except for Doe) 

to support its decision. As I noted above, in these cases, the 

assailant was a governmental employee and it was the conduct of these actors to which the statutory assault exception 

was addressed and from whose acts the governmental entity 

remained immunized. These cases merely say that the government does not lose its immunity in cases where injuries arise 

from assaults by government actors.

The majority opinion’s reliance on this string of cases is not 

helpful where, as here, the assault was committed by a nongovernmental individual, i.e., an inmate. As explained, the State 

Tort Claims Act’s general waiver of immunity applies only to 

governmental employees. The claims covered by the State Tort 

Claims Act are those claims which involve “the negligent or 

wrongful act or omission of any employee of the [S]tate.” 

§ 81-8,210(4). It logically follows that, as stated in Sheridan,

[t]he 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 not provide the basis for a claim under FTCA [or 

the State Tort Claims Act], the [intentional tort] exception 

could not apply to such an assault; rather, the exception 
- 41 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

only applies in cases arising out of assaults by federal [or 

State] employees.

Sheridan v. United States, 487 U.S. 392, 400, 108 S. Ct. 2449, 

101 L. Ed. 2d 352 (1988).

For completeness, I note that I am aware of more nuanced 

considerations where there is some question as to whether the 

government-employed assailant was acting within the scope 

of his or her duties at the time of the incident and other cases 

where the government is being sued for preceding acts of 

negligent hiring, retention, or supervision of a governmentemployed assailant. See Rebecca L. Andrews, So the Army 

Hired an Ax-Murderer: The Assault and Battery Exception to 

the Federal Tort Claims Act Does Not Bar Suits for Negligent 

Hiring, Retention and Supervision, 78 Wash. L. Rev. 161 

(2003). But these issues are not implicated in the instant case. 

Indeed, with respect to the former, Sheridan clarifies that in 

permitting the negligence claim to go forward, the assailant’s 

“employment status [at the moment of the incident] has [no] 

bearing on the basis for petitioners’ [negligence] claim for 

money damages, [and § 2680(h),] the intentional tort exception 

to the FTCA[,] is not applicable in this case.” 487 U.S. at 403. 

Here, the basis for appellant’s claim is the tort of negligence, 

independent from the injury resulting from an intentional act 

by an assailant who was not a governmental employee. That 

should end the matter, but given the majority opinion, the 

analysis must continue.

Sheridan Rejects the “But for the Assault” 

Rationale Relied On by the 

Majority in This Case

The majority finds that the assault need not be by a governmental employee so long as there is an assault somewhere in 

the picture. That is, the majority states that the State’s alleged 

antecedent negligence arises only as a result of the subsequent 

assault albeit by a nongovernmental actor. The majority reasons that “but for” the assault, there can be no alleged negligence by the State. The “but for” rationale of the majority 
- 42 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

here is reminiscent of the plurality view in United States v.

Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985), 

but that view was later expressly rejected in the Sheridan

opinion. See Andrews, supra.

The “but for” rationale adopted by the majority suffers from 

several defects, including confusing “claim” with “injury.” 

Not only is it belied by the language of the statute discussed 

above, but it ignores a basic precept of tort law that one injury 

“can arise from more than one wrongful act[s]”—in this case, 

a negligence “claim” which is distinct from an assault. See 

Sheridan v. United States, 487 U.S. 392, 405, 108 S. Ct. 2449, 

101 L. Ed. 2d 352 (1988) (Kennedy, J., concurring). See, 

also, 1 Restatement (Third) of Torts: Liability for Physical 

and Emotional Harm § 34 (2010). An event may have more 

than one proximate cause. See 1 Restatement (Third), supra. 

An intentional act intervening between a negligent act and 

the result does not always vitiate liability for the negligence. 

Id. A superseding cause of harm will not excuse an actor’s 

negligence where the actor should have realized the likelihood 

that such a situation might be created and the third person 

might avail himself of the opportunity to commit such a tort or 

crime. Id. As Justice Kennedy stated in Sheridan, the “but for” 

approach adopted by the Sheridan dissent (and by this court’s 

majority) implies that the “intentional act somehow obliterates 

the legal significance of any negligence that precedes or follows it.” 487 U.S. at 406 (Kennedy, J., concurring).

Contrary to the majority, I read the complaint to allege negligence by the TSCI staff in a variety of ways, e.g., violating 

duty of care for inmates, not following regulations regarding 

the decision to double bunk, ignoring the known dangerous 

propensity of Schroeder, et cetera, which acts are distinct and 

predate the intentional assault by the nongovernmental assailant. In Block v. Neal, 460 U.S. 289, 298, 103 S. Ct. 1089, 75 

L. Ed. 2d 67 (1983), the U.S. Supreme Court explained that 

given the language and history of the FTCA, even where a 

governmental employee’s conduct makes certain claims not 
- 43 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

actionable due to an exception in 28 U.S.C. § 2680(h), a claimant is not barred by that statute from pursuing a distinct claim 

“arising out of other aspects of the Government’s conduct.” 

As stated in a concurrence to an opinion of the U.S. Court of 

Appeals for the 11th Circuit: “So it is clear that any suggestion 

that [the intentional tort exception,] § 2680(h)[,] bars all claims 

for which the injuries arose directly out of an excepted tort is 

overly broad, incorrect, and inconsistent with the governing 

law of Sheridan.” Alvarez v. U.S., 862 F.3d 1297, 1314 (11th 

Cir. 2017) (Rosenbaum, J., concurring).

Appellant’s Negligence Cause of Action 

Against the State Did Not “Arise” From 

the Nongovernmental Assailant’s 

Intentional Assault

Appellant alleged a cause of action for negligence against 

the State by virtue of certain governmental employees allegedly having failed in their duty to protect and care for the 

inmate Berry. Although another inmate, Schroeder, assaulted 

Berry, the State’s alleged antecedent negligence is premised 

on breach of a “different duty,” see Block, 460 U.S. at 297, 

sometimes referred to as an “independent affirmative duty.” 

See LaFrancis v. U.S., 66 F. Supp. 2d 335 (D. Conn. 1999) 

(collecting cases under doctrine of independent affirmative 

duty). The injury from the assault on Berry can be traced back 

to more than one type of tortious conduct, and the two torts 

at issue, negligence and an intentional tort, do not rely on the 

same factual allegations.

Sheridan, supra, has been described as carving out an 

“exception to an exception to an exception to a general rule.” 

CNA v. United States, 535 F.3d 132, 148 (3d Cir. 2008). The 

general rule is sovereign immunity, the first exception is the 

FTCA’s limited waiver of the government’s immunity, the second exception is the intentional tort exception that reinstates 

the government’s immunity, and the third exception is the 

narrow category of cases, identified in Sheridan, which may 
- 44 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

proceed against the sovereign. As noted, the third category 

reflects the independent affirmative duty doctrine.

The Sheridan 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 allowing the assault to occur.” 487 U.S. at 398. 

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 contrary to the language of the State Tort Claims Act and 

unsound to afford immunity to an alleged breach of duty by 

a governmental 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, 110 Idaho 466, 716 P.2d 1238 (1986).

The U.S. Court of Appeals for the 10th Circuit, relying on 

U.S. Supreme Court precedent, summarized the key inquiry 

in cases of two torts as “can an FTCA plaintiff escape the bar 

of § 2680(h) by arguing that the battery was the natural consequence of prior governmental negligence . . . ?” Franklin v. 

U.S., 992 F.2d 1492, 1498 (10th Cir. 1993). If the answer to this 

question is in the affirmative, the complaint survives. The complaint in this case does make this argument, and in my view, 

should not be dismissed at this stage of the proceedings.

In Sheridan v. United States, 487 U.S. 392, 108 S. Ct. 

2449, 101 L. Ed. 2d 352 (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, 374 U.S. 150, 83 S. Ct. 1850, 10 L. 

Ed. 2d 805 (1963) (allowing 12 inmates to gather to beat up 

one inmate, the plaintiff), and Panella v. United States, 216 

F.2d 622 (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 
- 45 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

exception only applied to claims already authorized by the 

waiver of sovereign immunity, that is, to claims 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 State Tort Claims Act based 

solely on an inmate’s assault of another inmate. But there is no 

such cognizable claim under the State Tort Claims Act, so one 

cannot logically apply an exception to a nonexistent claim. See 

Sheridan, supra.

An assault by a nongovernmental employee could not provide the basis for a claim under the FTCA, and the U.S. 

Supreme Court held that the assault exception “only applies in 

cases arising out of assaults by federal employees.” Sheridan, 

487 U.S. at 400. This conclusion is based on federal statutory 

language comparable to that of Nebraska’s State Tort Claims 

Act. In view of the foregoing, the Sheridan Court found it 

unnecessary to rely on the temporal reasoning in Muniz to the 

effect that the plaintiff’s claim did not “‘arise out of’” the 

assault by the inmates that caused the injuries, but instead the 

focus is on

the Government’s negligent act or omission [in failing 

to prevent the assault that caused injury]; the intentional 

commission is simply considered as part of the causal link 

leading to the injury. Under this view, the assailant’s individual involvement would not give rise to Government 

liability, but antecedent negligence by Government agents 

could . . . .

Sheridan, 487 U.S. at 399. In both Muniz and Panella, upon 

which Sheridan relied, just as in the instant case, recovery was 

sought based on the negligence of the governmental entity, and 

given the fact that the assaults were committed by inmates, the 

intentional tort exception was not applicable.
- 46 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

MOSER v. STATE

Cite as 307 Neb. 18

CONCLUSION

Given the foregoing analysis, in my view, this complaint 

should not be dismissed under the intentional torts assault 

exception to the waiver of sovereign immunity because the 

complaint adequately alleges negligence by the State in violation of its own regulations for the act of “double bunking” a “talkative,” soon-to-be-released inmate with a “bad 

temper[ed]” inmate serving a life sentence, the latter of whom 

within 5 days of sharing a cell “wrapped his arm around the 

[former’s] neck and squeezed for five minutes” until “he felt 

certain [the former] was dead.”