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EDWARDS v. DOUGLAS COUNTY

Cite as 308 Neb. 259

Julie Edwards, appellant, v. Douglas County, 

a political subdivision of the State 

of Nebraska, appellee.

___ N.W.2d ___

Filed January 29, 2021. No. S-19-1195.

1. Political Subdivisions Tort Claims Act. Whether the allegations made 

by a plaintiff set forth claims which are precluded by exemptions under 

the Political Subdivisions Tort Claims Act presents a question of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

3. 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.

4. Political Subdivisions Tort Claims Act: Immunity: Waiver. Through 

the Political Subdivisions Tort Claims Act, the Legislature has allowed 

a limited waiver of a political subdivision’s sovereign immunity with 

respect to some, but not all, types of tort claims.

5. ____: ____: ____. Neb. Rev. Stat. § 13-910 (Reissue 2012) of the 

Political Subdivisions Tort Claims Act expressly exempts certain types 

of tort claims from the limited waiver of sovereign immunity. Stated 

differently, the exemptions in § 13-910 describe the types of tort claims 

for which a political subdivision has not consented to be sued.

6. Political Subdivisions Tort Claims Act: Dismissal and Nonsuit: 

Immunity. When an exemption under the Political Subdivisions Tort 

Claims Act applies, the political subdivision is immune from the 

claim and the proper remedy is to dismiss it for lack of subject matter jurisdiction.

7. Political Subdivisions Tort Claims Act: Jurisdiction: Summary 

Judgment. Because it is jurisdictional, courts should determine the 

applicability of a statutory exemption under the Political Subdivisions 

Nebraska Supreme Court Online Library

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

04/02/2021 08:08 AM CDT
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Tort Claims Act before considering nonjurisdictional grounds for summary judgment.

8. 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 words which are plain, direct, and 

unambiguous.

9. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity are strictly construed in favor of the sovereign and against the waiver.

10. Political Subdivisions Tort Claims Act: Immunity: Waiver. In order 

to strictly construe the Political Subdivisions Tort Claims Act against a 

waiver of sovereign immunity, courts apply a broad reading to any statutory exemptions from a waiver of sovereign immunity.

11. Statutes: Immunity: Waiver. 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. Political Subdivisions Tort Claims Act: Assault. No matter how a tort 

claim against the government is framed, when it seeks to recover damages for personal injury or death stemming from an assault, the claim 

necessarily “arises out of assault” and is barred by the intentional tort 

exemption under the Political Subdivisions Tort Claims Act.

13. Political Subdivisions Tort Claims Act: Pleadings: Assault. Plaintiffs 

cannot circumvent the assault and battery exemption under the Political 

Subdivisions Tort Claims Act through artful pleading.

14. Courts: Immunity: Waiver. No matter how compelling the facts of a 

particular case may be, the judiciary does not have the power to waive 

sovereign immunity.

15. Constitutional Law: Political Subdivisions Tort Claims Act: Courts: 

Legislature. Neb. Const. art. II, § 1, precludes courts from exercising powers belonging to the Legislature, and decisions on whether 

and how to limit the government’s potential tort liability belong to 

the Legislature.

16. Courts: Legislature: Immunity. Courts must not, through judicial 

construction, usurp the Legislature’s role in drawing the line between 

governmental liability and immunity.

17. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort 

Claims Act provides the exclusive means by which to maintain a tort 

claim against a political subdivision or its employees.

18. Immunity: Waiver. The language of Neb. Rev. Stat. § 86-441 (Reissue 

2014) is not a waiver of sovereign immunity.
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Appeal from the District Court for Douglas County: Leigh 

Ann Retelsdorf, Judge. Affirmed.

Gretchen L. McGill, Heather S. Voegele, and Brenda K. 

Smith, of Dvorak Law Group, L.L.C., for appellant.

Jimmie L. Pinkham III and William E. Rooney III, Deputy 

Douglas County Attorneys, for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

In 2016, Julie Edwards was held hostage and sexually 

assaulted by a former boyfriend. In 2017, Edwards sued 

Douglas County under the Political Subdivisions Tort Claims 

Act (PSTCA) 1, alleging the county negligently handled a series 

of 911 calls and, as a result, emergency personnel did not 

arrive in time to prevent or stop the sexual assault. The district 

court granted summary judgment in favor of Douglas County 

and dismissed the action, finding the county owed no legal 

duty to Edwards. We affirm the judgment of dismissal, but do 

so on grounds of sovereign immunity.

BACKGROUND

Assault and 911 Calls

Edwards and Kenneth Clark were involved in a dating relationship and resided together in Omaha, Nebraska. Edwards 

ended the relationship, and on February 12, 2016, she went to 

Clark’s home to retrieve her belongings, accompanied by her 

brothers John Edwards and Jason Edwards.

As Edwards and her brothers were leaving Clark’s home 

with the final box, Clark fired several gunshots, striking both 

John and Jason. Edwards tried to escape, but Clark dragged 

her back into the home. Once inside, Edwards saw that Jason 

1 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
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was on the floor bleeding and that John was moving toward 

the basement. Edwards heard John saying he was hurt and 

needed help. She later heard John’s cell phone ring from the 

basement, and she could hear John speaking, but could not 

make out his words.

Eventually Clark zip-tied Edwards’ hands and feet, confiscated her cell phone, and held her hostage in the home. 

Thereafter, Clark took Edwards to an upstairs bedroom where 

he sexually assaulted her. Edwards estimates the sexual assault 

began roughly 20 to 30 minutes after the shooting; the shooting 

occurred shortly before 10 a.m.

It is undisputed that while Edwards was being held hostage, John called the Douglas County 911 call center from 

the basement of Clark’s home. The first call was placed at 

approximately 10:12 a.m., and, over the course of several more 

phone calls, John reported that he had been shot by his sister’s 

ex-boyfriend “Ken Clark” and needed help. John told 911 

that he was inside Clark’s house, but was not able to provide 

a street address. John reported that Clark was still inside the 

house, that Clark had a gun, and that Edwards was being held 

hostage in the house. The final call between John and the 911 

call center was placed at approximately 10:33 a.m.

At approximately 10:54 a.m., law enforcement was dispatched to Clark’s residence. They arrived at approximately 

10:58 a.m., after which Clark stopped assaulting Edwards 

but continued to hold her hostage. Clark eventually released 

Edwards sometime before 2 p.m. and then took his own 

life. Both John and Jason died from injuries sustained in 

the shooting.

Lawsuit

On October 2, 2017, after complying with the presuit notice 

requirements under the PSTCA, Edwards filed a negligence 

action against Douglas County, seeking to recover damages for 

personal injury. Her complaint alleged that Douglas County 
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“had a duty to provide and maintain a 911 service system 

utilizing reasonable care” and had breached that duty by mishandling the 911 calls with John. Edwards alleged that as a 

result of the county’s negligence, emergency personnel did not 

arrive at Clark’s home in a timely manner, which caused her to 

“continu[e] to be held hostage and [to be] sexually assaulted 

at gunpoint.”

In its operative amended answer, Douglas County specifically denied that it failed to use reasonable care in handling 

the 911 calls. The county affirmatively alleged that Edwards’ 

complaint failed to state a claim of negligence against the 

county, but it did not expressly allege that Douglas County was 

immune from suit under the PSTCA.

Summary Judgment

After conducting discovery, both Douglas County and 

Edwards moved for summary judgment. Douglas County 

claimed it was entitled to summary judgment because, among 

other things, it owed Edwards no legal duty to protect her from 

the assault by Clark. Edwards argued she was entitled to partial 

summary judgment in her favor on the issues of legal duty and 

breach. A single hearing was held on the competing summary 

judgment motions. Exhibits were offered by both parties and 

received without objection.

Before the district court, the parties primarily focused their 

arguments on questions of legal duty. Douglas County argued 

it had no duty to protect Edwards from the assault by Clark. 

Edwards disagreed, arguing that a legal duty arose under 

Nebraska’s Emergency Telephone Communications Systems 

Act (ETCSA). 2 Edwards argued, summarized, that the ETCSA 

authorized Douglas County to provide 911 services and 

imposed a statutory duty of reasonable care in contracting for 

and providing such services.

2 Neb. Rev. Stat. §§ 86-420 to 86-441.01 (Reissue 2014).
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In an order entered November 21, 2019, the district court 

rejected Edwards’ contention that the ETCSA imposed a 

legal duty on the county. After analyzing and rejecting other 

legal theories under which the county may have had a duty to 

protect Edwards from the assault by Clark, the court sustained 

the county’s motion for summary judgment and overruled 

Edwards’ motion for partial summary judgment. Edwards filed 

a timely notice of appeal, which we moved to our docket on 

our own motion.

ASSIGNMENTS OF ERROR

Edwards assigns eight errors, which we consolidate and 

restate into two: (1) The district court erred in granting Douglas 

County’s motion for summary judgment on the ground the 

county did not owe Edwards a legal duty, and (2) the district 

court erred in overruling Edwards’ motion for partial summary judgment.

STANDARD OF REVIEW

[1] Whether the allegations made by a plaintiff set forth 

claims which are precluded by exemptions under the PSTCA 

presents a question of law. 3

[2] When reviewing questions of law, an appellate court has 

an obligation to resolve the questions independently of the conclusion reached by the trial court. 4

[3] 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. 5

3 See, Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020); Rutledge v. City 

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

4 See Moser, supra note 3.

5 Id.
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ANALYSIS

Subject Matter Jurisdiction 

Under PSTCA

Shortly before the scheduled oral argument in this appeal, 

Douglas County moved for summary dismissal or, in the alternative, summary affirmance, claiming we lack subject matter jurisdiction over Edwards’ claim under the PSTCA. The 

county contends, summarized, that Edwards’ claim is barred 

by sovereign immunity because the PSTCA’s exemption for 

claims “arising out of assault” 6 applies. In support of its argument, the county relies on this court’s recent opinion in Moser 

v. State,

 7 which was released after the initial briefing in this 

case was complete. Edwards filed a brief in opposition to the 

county’s motion, and we deferred ruling on the motion until 

plenary submission.

Because the county’s motion presents a question of subject matter jurisdiction under the PSTCA, we address it as 

a threshold matter. 8 No party raised the applicability of any 

exemption under the PSTCA while this case was before the 

district court, but whether an exemption applies presents a 

jurisdictional issue which may be raised for the first time on 

appeal. 9 Simply put, a political subdivision’s sovereign immunity from suit is a jurisdictional issue that an appellate court 

cannot ignore. 10

6 § 13-910(7).

7 Moser, supra note 3.

8 See Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 

84 (2020) (explaining because question is jurisdictional, courts should 

determine applicability of statutory exemptions under PSTCA before 

considering nonjurisdictional grounds for summary judgment).

9 Moser, supra note 3. See, also, Amend v. Nebraska Pub. Serv. Comm., 298 

Neb. 617, 905 N.W.2d 551 (2018).

10 See Moser, supra note 3. Accord Davis v. State, 297 Neb. 955, 902 N.W.2d 

165 (2017).
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The sovereign immunity of the State and its political subdivisions is not a matter of judicial fiat; it is constitutional. Neb. 

Const. art. V, § 22, provides: “The state may sue and be sued, 

and the Legislature shall provide by law in what manner and in 

what courts suits shall be brought.” Earlier versions of our state 

constitution did likewise. 11 We have long held that this constitutional provision is not self-executing and that no suit may be 

maintained against the State or its political subdivisions unless 

the Legislature, by law, has so provided. 12 The Legislature 

has enacted the PSTCA to govern tort claims against political subdivisions.

[4] Under the PSTCA, a political subdivision has no liability 

for the torts of its officers, agents, or employees, “except to 

the extent, and only to the extent, provided by the [PSTCA].” 13

In suits brought under the PSTCA, a political subdivision is 

“liable in the same manner and to the same extent as a private 

individual under like circumstances,” except “as otherwise provided in the [PSTCA].” 14 Through the PSTCA, the Legislature 

has allowed a limited waiver of a political subdivision’s sovereign immunity with respect to some, but not all, types of 

tort claims. 15

[5-7] Section 13-910 of the PSTCA expressly exempts certain tort claims from the limited waiver of sovereign immunity. Stated differently, the exemptions in § 13-910 describe 

the types of tort claims for which a political subdivision 

has not consented to be sued. When an exemption under the 

11 See State v. Mortensen, 69 Neb. 376, 95 N.W. 831 (1903).

12 See, e.g., Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 

(2019); McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009), 

abrogated in part, Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 

264 (2010), overruled, Davis, supra note 10.

13 § 13-902. See Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 

(2011).

14 § 13-908.

15 See Rutledge, supra note 3.
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PSTCA applies, the political subdivision is immune from the 

claim and the proper remedy is to dismiss it for lack of subject 

matter jurisdiction. 16 Because it is jurisdictional, courts should 

determine the applicability of a statutory exemption under the 

PSTCA before considering nonjurisdictional grounds for summary judgment. 17

Immunity for Claims Arising 

Out of Assault

As pertinent here, § 13-910(7) of the PSTCA exempts from 

the waiver of sovereign immunity “[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.” We have sometimes referred to this exemption broadly as the “intentional 

tort” exemption. 18 And because the language of the intentional 

tort exemption is nearly identical under both § 13-910(7) of 

the PSTCA and Neb. Rev. Stat. § 81-8,219(4) (Reissue 2014) 

the State Tort Claims Act (STCA), 19 we have applied our cases 

construing the exemption under the PSTCA to cases under the 

STCA, and vice versa. 20

[8-11] When construing any statutory exemption under the 

PSTCA or the STCA, courts apply settled propositions of 

statutory construction. 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 words which 

are plain, direct, and unambiguous. 21 Additionally, Nebraska 

16 See Lambert, supra note 8.

17 Id.

18 See, e.g., Moser, supra note 3; Rutledge, supra note 3; Britton, supra

note 13.

19 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).

20 See, Moser, supra note 3; Amend, supra note 9.

21 Moser, supra note 3.
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courts have long followed the rule that statutes purporting to 

waive the protection of sovereign immunity are to be strictly 

construed in favor of the sovereign and against waiver. 22 As a 

corollary to this canon of construction, and in order to strictly 

construe the PSTCA against a waiver of sovereign immunity, 

we apply a broad reading to statutory exemptions from a 

waiver of sovereign immunity. 23 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. 24

Over the past 15 years, this court has issued five published 

opinions addressing the meaning and scope of the phrase 

“[a]ny claim arising out of assault” as used in the intentional 

tort exemptions of the PSTCA and the STCA. 25 When analyzing this language, most of our cases have given the phrase 

its plain meaning and faithfully applied principles of strict 

construction to avoid judicially expanding the Legislature’s 

22 See, e.g., id.; Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020); Jill 

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

York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Hoiengs v. County 

of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994); Wiseman v. Keller, 218 

Neb. 717, 358 N.W.2d 768 (1984); Gentry v. State, 174 Neb. 515, 118 

N.W.2d 643 (1962); Rumbel v. Ress, 166 Neb. 839, 91 N.W.2d 36 (1958), 

modified on denial of rehearing 167 Neb. 359, 92 N.W.2d 904; Frye v. 

Sibbitt, 145 Neb. 600, 17 N.W.2d 617 (1945); Anstine v. State, 137 Neb. 

148, 288 N.W. 525 (1939), overruled on other grounds, Beatrice Manor v. 

Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).

23 See, Brown, supra note 22; Reiber v. County of Gage, 303 Neb. 325, 928 

N.W.2d 916 (2019); Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 

561 (2015).

24 Moser, supra note 3; Jill B. & Travis B., supra note 22.

25 See, e.g., Moser, supra note 3; Rutledge, supra note 3; Britton, supra note 

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

overruled, Moser, supra note 3; Johnson v. State, 270 Neb. 316, 700 

N.W.2d 620 (2005).
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limited waiver of sovereign immunity. 26 Some of our cases 

have considered U.S. Supreme Court opinions construing 

the Federal Tort Claims Act (FTCA), which also excludes 

certain intentional torts, including assault, from the federal 

government’s waiver of sovereign immunity. 27 But we have 

not always agreed with the reasoning of the U.S. Supreme 

Court majority, 28 in part because that Court does not always 

adhere to the same strict construction principles this court follows when construing statutes purporting to waive sovereign 

immunity. 29 And of course, neither the reasoning nor the holdings of federal cases construing the FTCA have any binding 

precedential effect on this court’s construction of Nebraska’s 

statutory language.

26 See, Moser, supra note 3 (applying strict construction principles to 

determine scope of assault and battery exemption); Rutledge, supra note 

3 (same); Britton, supra note 13 (same); Johnson, supra note 25 (same). 

Compare Doe, supra note 25 (making no reference to strict construction 

principles when determining scope of assault and battery exemption).

27 See 28 U.S.C. § 2680(h) (2018).

28 See, e.g. Moser, supra note 3 (rejecting reasoning of U.S. Supreme Court 

majority and agreeing instead with reasoning of dissent in Sheridan v. 

United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988)); 

Johnson, supra note 25 (agreeing with reasoning of Sheridan concurrence 

rather than majority).

29 See, Moser, supra note 3 (observing U.S. Supreme Court does not 

uniformly apply strict construction principles to waivers of sovereign 

immunity under FTCA); Davis, supra note 10, 297 Neb. at 974, 902 

N.W.2d at 183 (observing U.S. Supreme Court “has refused to hold that 

the FTCA exceptions are subject to the general rule that a waiver of 

sovereign immunity will be strictly construed in favor of the sovereign”). 

See, also, 14 Charles Alan Wright et al., Federal Practice and Procedure 

§ 3658.2 at 688 (4th ed. 2015) (observing that when interpreting scope 

of exceptions to waivers of sovereign immunity under FTCA, the U.S. 

Supreme Court has said rules of strict construction are not implicated 

and “‘unhelpful’” to inquiry); Gregory C. Sisk, Twilight for the Strict 

Construction of Waivers of Federal Sovereign Immunity, 92 N.C. L. Rev. 

1245 (2014) (same).
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Before addressing the arguments advanced by the parties 

in this appeal, it is helpful to review our previous opinions construing the scope and meaning of the intentional tort 

exemption. In the 2005 case of Johnson v. State,

 30 a prisoner 

brought a tort action against the State, seeking to recover 

damages for personal injury after being sexually assaulted 

by a prison guard. The trial court found that her claim arose 

out of an assault and was barred by sovereign immunity. On 

appeal, the prisoner argued that her claim did not arise out of 

assault, but instead arose from independent acts of governmental negligence that allowed the assault to occur, including the 

State’s negligent hiring and supervision of the prison guard. 

Applying principles of strict construction, Johnson held that 

even though the claim had been framed as the negligent failure 

to prevent an assault, it fell squarely within the intentional tort 

exemption. Johnson agreed with Justice Kennedy’s concurrence in the U.S. Supreme Court case of Sheridan v. United 

States,

 31 quoting:

“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 purposes of the [intentional 

tort] exception.” 32

Johnson also quoted the reasoning of four U.S. Supreme Court 

justices in United States v. Shearer,

 33 stating that a plaintiff 

30 Johnson, supra note 25.

31 Sheridan, supra note 28 (Kennedy, J., concurring).

32 Johnson, supra note 25, 270 Neb. at 322, 700 N.W.2d at 625 (quoting 

Sheridan, supra note 28 (Kennedy, J., concurring)).

33 United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 

(1985).
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“‘cannot avoid the reach of [the intentional tort exemption] by 

framing her complaint in terms of negligent failure to prevent 

the assault and battery.’” 34

Two years after deciding Johnson, we again considered the 

scope and application of the intentional tort exemption. In Doe 

v. Omaha Pub. Sch. Dist.,

 35 a student sued the school district 

for personal injury after being sexually assaulted by a classmate on school grounds. The trial court found the claim arose 

out of an assault and was barred by the PSTCA’s intentional 

tort exemption. On appeal, the student argued the claim did not 

arise out of assault, but instead arose from the school district’s 

negligent failure to protect her from a foreseeable act of sexual 

violence by a classmate. We identified the dispositive issue as 

“determin[ing] the breadth of the phrase ‘[a]ny claim arising 

out of assault’ as it is used in § 13-910(7).” 36 But in addressing 

this issue, Doe neither referenced nor applied traditional principles of strict construction.

Our opinion in Doe acknowledged that if the student had 

been sexually assaulted by an employee of the school district, 

her claim would be barred by sovereign immunity under the 

holding and reasoning in Johnson. But because the student 

had been sexually assaulted by a classmate, rather than a governmental employee, Doe implied that different reasoning was 

appropriate. While Johnson had rejected the reasoning of the 

Sheridan majority in favor of the concurrence, Doe expressly 

relied on the majority’s reasoning that “the negligence of other 

Government employees who allowed a foreseeable assault and 

battery to occur may furnish a basis for Government liability that is entirely independent of [the assailant’s] employment status.” 37 Doe described this reasoning as persuasive 

and held that the student’s claim was not barred by sovereign 

34 Johnson, supra note 25, 270 Neb. at 320, 700 N.W.2d at 624.

35 Doe, supra note 25.

36 Id. at 86, 727 N.W.2d at 455.

37 See Sheridan, supra note 28, 487 U.S. at 401.
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immunity because it did “not arise from an assault, but, rather, 

from an alleged negligent failure to protect a student from a 

foreseeable act of violence.” 38

We next considered the scope of the intentional tort exemption in 2009, when deciding McKenna v. Julian.

 39 There, 

the plaintiff sued the city and a city police officer, seeking to recover damages based on allegations that the officer 

had assaulted him during an improper arrest. The trial court 

dismissed the lawsuit, finding, among other things, that the 

claims were barred by the PSTCA’s intentional tort exemption. On appeal, the plaintiff argued his claims did not arise 

from assault, battery, or false arrest, but instead arose from 

the officer’s negligent use of excessive force. We rejected this 

argument. Applying strict construction principles and our reasoning in Johnson, we found that even when framed as a claim 

of excessive force, the arrestee’s claim was barred as a matter 

of law by the intentional tort exemption.

In the 2011 case of Britton v. City of Crawford,

 40 police 

officers shot and killed a 16-year-old burglary suspect during a standoff. The personal representative for the suspect’s 

estate brought a wrongful death and survival action against 

the city under the PSTCA, alleging police were negligent 

in the tactics used when confronting the suspect. The trial 

court dismissed the action, finding the claims were barred 

by the assault and battery exemption under § 13-910(7) of 

the PSTCA. We affirmed, explaining that the intentional tort 

exemption “‘“does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out 

of assault or battery.”’” 41 Britton applied principles of strict 

construction and held the language of the exemption includes 

38 Doe, supra note 25, 273 Neb. at 86, 727 N.W.2d at 456.

39 McKenna, supra note 12.

40 Britton, supra note 13.

41 Id. at 384-85, 803 N.W.2d at 517 (emphasis in original).
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claims that “‘“sound in negligence but stem from [an assault 

or] battery,”’” 42 reasoning:

While other factors may have contributed to the situation which resulted in [the suspect’s] death, but for 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 suspect’s] death and, consequently, the basis of [the personal representative’s] claim. 

Even if it is possible that negligence [of the officers] was 

a contributing factor to [the suspect’s] death, the alleged 

negligence was inextricably linked to a battery [and the 

claim] is thus barred by the PSTCA. 43

We again considered the scope of the intentional tort exemption in the 2019 case of Rutledge v. City of Kimball. 44 There, 

the plaintiff alleged she had been attacked and choked by a 

city employee while visiting a city building. She sued the 

city under the PSTCA, alleging it negligently failed to supervise its employee and failed to protect the public from the 

employee despite knowledge of his violent propensities. The 

district court granted the city’s motion to dismiss, finding the 

claim was barred by the PSTCA exemption for claims arising 

out of assault. On appeal, the plaintiff relied on our opinion 

in Doe to argue that her claim did not arise out of an assault, 

but instead arose from the city’s breach of an independent 

duty to protect her from foreseeable acts of violence by its 

employee. 45 We found Doe was inapplicable because, among 

other things, the assailant in Doe was not a governmental 

employee. We instead applied our reasoning from Johnson and 

principles of strict construction to conclude that the plaintiff 

could not avoid the intentional tort exemption by reframing 

42 Id. at 385, 803 N.W.2d at 517.

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

44 Rutledge, supra note 3.

45 See id. See, also, Doe, supra note 25.
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her claim as the negligent failure to prevent a foreseeable 

assault by a governmental employee. 46 We reasoned:

While [the plaintiff’s] claim is characterized as one of 

negligence, no claim would exist but for [the employee’s] 

alleged battery. At oral argument, [the plaintiff] conceded 

that there never would have been a lawsuit had she not 

been assaulted. Thus, regardless of how the claim is 

pled, [the plaintiff’s] claim is inextricably linked to a 

battery. Accordingly, the alleged negligence falls within 

the [assault and battery] exception to the PSTCA and the 

[c]ity has not waived its sovereign immunity. 47

The concurring opinion in Rutledge agreed that the plaintiff’s claim was barred by the intentional tort exemption, but 

questioned whether Doe had been correctly decided, noting 

that its reasoning was contrary to principles of strict construction and its holding was inconsistent with the rest of 

our cases construing the plain language of the intentional 

tort exemption. 48

Our most recent opportunity to consider the scope of the 

intentional tort exemption was the 2020 case of Moser.

 49 In 

Moser, we applied the intentional tort exemption to bar a negligence claim brought by the estate of a man who was fatally 

assaulted by a cellmate while housed in a state prison facility. 

The decedent’s estate alleged the State had negligently doublebunked the two inmates and had failed to protect the decedent 

from a foreseeable assault. The district court dismissed the 

suit, finding the State was immune under the STCA’s discretionary function exemption. 50 We affirmed the dismissal, but 

46 See Rutledge, supra note 3. See, also, Johnson, supra note 25.

47 Rutledge, supra note 3, 304 Neb. at 602, 935 N.W.2d at 753.

48 See Rutledge, supra note 3 (Papik, J., concurring). See, also, Doe, supra

note 25.

49 Moser, supra note 3.

50 See § 81-8,219(1).
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on different sovereign immunity grounds. Moser concluded 

the negligence claim arose out of an assault and fell squarely 

within the STCA’s exemption for “[a]ny claim arising out 

of assault.” 51

Moser reexamined our reasoning in Doe and expressly overruled it, describing Doe as an “outlier” 52 and concluding it was 

inconsistent with the rest of our cases construing and applying 

the intentional tort exemption. Moser correctly observed that 

neither Doe, nor the majority opinion in Sheridan on which 

it relied, purported to apply principles of strict construction 

when determining the scope of the intentional tort exemption. 53

Because the reasoning in Doe could not be reconciled with 

the rest of our cases and was contrary to the settled principle 

that courts must apply a broad reading to statutory exemptions 

in order to strictly construe waivers of sovereign immunity, 54

Moser concluded that Doe had been wrongly decided. The reasoning in Doe had been premised on the same semantic recasting we had consistently rejected in cases where the assault was 

committed by a governmental actor, 55 and Moser emphasized 

that when the statutory text is given its plain meaning, there is 

no principled reason why the scope and meaning of the phrase 

“arising out of assault” should be construed differently depending on whether the assailant was a governmental or a nongovernmental actor.

51 § 81-8,219(4).

52 Moser, supra note 3, 307 Neb. at 28, 948 N.W.2d at 202. See, also, Doe, 

supra note 25.

53 See Moser, supra note 3. See, also, Sheridan, supra note 28.

54 See, Moser, supra note 3; Brown, supra note 22; Jill B. & Travis B., supra

note 22; Geddes, supra note 22; Hoiengs, supra note 22; Wiseman, supra

note 22; Gentry, supra note 22; Rumbel, supra note 22; Frye, supra note 

22; Anstine, supra note 22.

55 See, e.g. Moser, supra note 3; Rutledge, supra note 3; Britton, supra

note 13.
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We pause here to note that in Moser, and again in this 

case, our dissenting colleague suggests that the exemption in 

§ 13-910(7) for “[a]ny claim arising out of assault” should 

be construed to apply only to claims that arise out of assaults 

“committed by governmental employees.” But the qualifying 

language urged by the dissent appears nowhere in § 13-910(7). 

And given that other PSTCA exemptions expressly reference claims based on the acts “of an employee” 56 or “by an 

employee,” 57 the omission of such qualifying language from 

§ 13-910(7) cannot be ignored. Nor do we find persuasive the 

dissent’s suggestion that the PSTCA’s definitions of a “[t]ort 

claim” 58 or “[e]mployee” 59 make it necessary to read into the 

plain language of § 13-910(7) the qualifying phrase “committed by governmental employees.” It is not within the province 

of the courts to read a meaning into a statute that is not there 

or to read anything direct and plain out of a statute. 60 The 

language used by the Legislature in § 13-910(7) is strikingly 

broad; without qualification or limitation, it exempts from 

the waiver of sovereign immunity “[a]ny claim arising out of 

56 § 13-910(1) (referring to “[a]ny claim based upon an act or omission of an 

employee of a political subdivision”). See, also, § 13-901(2) (referring to 

“[a]ny claim based upon the exercise or performance of . . . a discretionary 

function or duty on the part of the political subdivision or an employee of 

the political subdivision”).

57 § 13-910(4) (“[n]othing in this subdivision shall be construed to limit a 

political subdivision’s liability for any claim based upon the negligent 

execution by an employee of the political subdivision in the issuance of 

a certificate of title”). See, also, § 13-910(8) (referring to “[a]ny claim 

by an employee of the political subdivision which is covered by the 

Nebraska Workers’ Compensation Act”); § 13-910(10) (“[n]othing in this 

subdivision shall be construed to limit a political subdivision’s liability for 

any claim arising out of the operation of a motor vehicle by an employee 

of the political subdivision”).

58 See § 13-903(4).

59 See § 13-903(3).

60 State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231 

(2020).
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assault.” We respectfully disagree with the dissent’s suggestion that this language can reasonably be construed to exempt 

only claims arising out of assaults committed by governmental 

employees. And even if we could find plausible textual support 

for the alternative construction urged by the dissent, it would 

not satisfy our long-established rule that a waiver of sovereign 

immunity is to be 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. 61

There is no basis in the plain text of § 13-910(7), or in our 

binding precedent construing that statute, for the alternate 

interpretation urged by the dissent.

[12] Instead, with the exception of Doe, our cases have 

construed the intentional tort exemption to give it the full 

breadth demanded by its plain text and our canons of construction. We have said the exemption applies whenever an 

assault “is essential to the claim,” 62 and it bars claims against 

the government which “sound in negligence but stem from 

[an assault or] battery.” 63 We have also said the exemption 

encompasses claims that “would not exist without an assault 

or battery,” 64 and claims which are “‘inextricably linked to [an 

assault or] battery.’” 65 All of these articulations speak to the 

same point: when a tort claim against the government seeks to 

recover damages for personal injury or death stemming from 

an assault, the claim necessarily “arises out of assault” and 

61 See, e.g., Moser, supra note 3; Jill B. & Travis B., supra note 22; Lamb v. 

Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 876 N.W.2d 388 

(2016); Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 

48, 825 N.W.2d 204 (2013); Britton, supra note 13; King v. State, 260 

Neb. 14, 614 N.W.2d 341 (2000); Logan v. Department of Corr. Servs., 

254 Neb. 646, 578 N.W.2d 44 (1998); Wiseman, supra note 22.

62 Moser, supra note 3, 307 Neb. at 29, 948 N.W.2d at 202.

63 Britton, supra note 13, 282 Neb. at 385, 803 N.W.2d at 517.

64 Moser, supra note 3, 307 Neb. at 29, 948 N.W.2d at 202.

65 Id. at 27, 948 N.W.2d at 201 (quoting Britton, supra note 13).
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is barred by the intentional tort exemption under the PSTCA. 

The plain language of the exemption and our principles of 

strict construction require this result no matter how the tort 

claim has been framed 66 and regardless of the assailant’s 

employment status. 67

Edwards’ Claim Arises 

Out of Assault

On appeal, Douglas County contends that no matter how 

Edwards frames her negligence claim against the county, it 

“aris[es] out of assault” 68 and thus falls squarely within the 

PSTCA’s intentional tort exemption. Edwards concedes that 

her damages stem from the assault by Clark, but she argues 

that her claim does not arise out of the assault, and instead is 

based on “a completely independent incident . . . the delay of 

law enforcement arriving to the scene of the emergency caused 

by Douglas County’s failure to exercise reasonable care in handling [John’s 911 calls].” 69

For the same reasons we concluded the negligence claims in 

Johnson, McKenna, Britton, Rutledge, and Moser arose out of 

assault and were barred by sovereign immunity, we must likewise conclude that Edwards’ negligence claim against Douglas 

County arises out of an assault and is barred by § 13-910(7). 

Edwards alleges that the county negligently mishandled the 

911 calls with John and that, as a result, emergency personnel 

did not arrive in a timely manner and Edwards “continue[d] 

to be held hostage [and was] sexually assaulted at gunpoint” 

66 See Moser, supra note 3; Rutledge, supra note 3; Britton, supra note 13.

67 See Moser, supra note 3. Accord Sheridan, supra note 28, 487 U.S. at 411 

(O’Connor, J. dissenting; Rehnquist, C.J., and Scalia, J., join) (observing 

that plain language of FTCA intentional tort exception applies “whether 

the person committing the intentional tort is a Government employee, 

a nonemployee, or a Government employee acting outside the scope of 

his office”).

68 See § 13-910(7).

69 Memorandum brief for appellant in opposition to appellee’s motion for 

summary dismissal or affirmance at 3.
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by Clark. At oral argument before this court, Edwards’ counsel conceded that all of Edwards’ claimed damages stemmed 

from the assault by Clark. This presents a classic example of 

a claim which sounds in negligence but which stems from, 

and is inextricably linked to, an assault or battery. Edwards is 

alleging that, because of the government’s negligent handling 

of the 911 calls, she was injured by an intentional assault. And 

while it is conceivable there could be circumstances where the 

claim is so attenuated from an assault that it cannot fairly be 

characterized as arising out of the assault, we do not have such 

a claim before us today.

[13] We understand Edwards’ briefing to suggest that her 

negligence claim is factually different from those considered 

in Johnson, McKenna, Britton, Rutledge, and Moser, because 

those plaintiffs alleged the government was negligent in failing 

to protect against a foreseeable assault, and Edwards is alleging the government’s negligence delayed its response to an 

assault in progress. This argument relies on the sort of semantic recasting of events this court has consistently rejected. 70

Plaintiffs cannot circumvent the assault and battery exemption through “artful pleading.” 71 Because the Legislature has 

broadly exempted from the PSTCA “[a]ny claim arising out 

of assault,” 72 it is immaterial whether Edwards has alleged the 

assault occurred because the government negligently failed to 

prevent it or because the government negligently delayed in 

responding to it. No matter how it is framed, Edwards’ claim of 

governmental negligence arises out of assault and is barred by 

sovereign immunity under § 13-910(7) of the PSTCA.

Nothing in this opinion should be understood to diminish the seriousness of the assault experienced by Edwards 

or to excuse any mishandling of the 911 calls for help. 

But the Legislature has expressly preserved the government’s 

sovereign immunity for negligence claims that arise out of 

70 See, Moser, supra note 3; Britton, supra note 13.

71 Jill B. & Travis B., supra note 22, 297 Neb. at 93, 899 N.W.2d at 265.

72 § 13-910(7).
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assaults, and Edwards has brought such a claim. The provisions of § 13-910(7) are plain and unambiguous, and this 

court must apply those provisions as written. 73 The sweeping 

language of the exemption simply allows no other reasonable 

construction. 74

[14] The dissent asks important public policy questions 

about the impact of immunizing the government from a claim 

that it failed to respond quickly enough to stop a violent assault 

against an innocent victim. Important public policy questions 

are also presented by calls to waive immunity and expand the 

types of claims that can result in money judgments against a 

political subdivision and impact the public fisc. But balancing these public policy concerns is not a matter the Nebraska 

Constitution leaves to the courts. 75 No matter how compelling 

the facts of a particular case may be, the judiciary does not 

have the power to waive sovereign immunity. 76

[15,16] Neb. Const. art. II, § 1, precludes us from exercising powers belonging to the Legislature, and decisions 

on whether and how to limit the government’s potential tort 

liability belong to the Legislature. 77 Courts must not, through 

judicial construction, usurp the Legislature’s role in drawing the line between governmental liability and immunity. 78

Prior courts have strayed from this foundational principle. 79

This court will not.

73 See Glasson v. Board of Equal. of City of Omaha, 302 Neb. 869, 925 

N.W.2d 672 (2019).

74 See, Moser, supra note 3; Jill B. & Travis B., supra note 22.

75 See Neb. Const. art. V, § 22.

76 See id. See, also, McKenna, supra note 12.

77 See Neb. Const. art. V, § 22.

78 See Jill B. & Travis B., supra note 22.

79 See Brown v. City of Omaha, 183 Neb. 430, 434, 160 N.W.2d 805, 808 

(1968) (plurality holds that while Legislature might have “the ultimate 

word,” courts also have power to abrogate sovereign immunity from tort 

liability arising out of ownership, use, and operation of motor vehicles). 

See, also, Doe, supra note 25.
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We therefore leave to the Legislature, after careful study 

and full debate of the social and economic consequences, the 

public policy decision of whether to expand the government’s 

tort liability for claims arising out of assault. For the sake of 

completeness, we note that because Edwards’ claim against 

the county is plainly barred by the intentional tort exemption, 

we express no opinion on whether it is otherwise the type of 

claim for which a private person would be liable in tort under 

Nebraska law. 80

No Waiver of Sovereign Immunity 

Under § 86-441

In opposing the county’s motion for summary affirmance on 

grounds of sovereign immunity, Edwards argues that even if 

her claim is barred by the PSTCA’s intentional tort exemption, 

we should consider whether the ETCSA operates as a waiver of 

sovereign immunity “separate and apart from that provided for 

in [the PSTCA].” 81 Edwards refers this court to § 86-441 of the 

ETCSA, which provides:

In contracting for such 911 service and in providing such 

911 service, except for failure to use reasonable care or 

for intentional acts, each governing body, public safety 

agency, and service supplier and their employees and 

agents shall be immune from liability or the payment for 

any damages in the performance of installing, maintaining, or providing 911 service.

80 See § 13-903(4) (“[t]ort claim shall mean any claim against a political 

subdivision for money only on account of . . . personal injury or death, 

caused by the negligent or wrongful act or omission of any employee of 

the political subdivision . . . under circumstances in which the political 

subdivision, if a private person, would be liable to the claimant for such 

damage”); § 13-908 (“in all suits brought under [the PSTCA] the political 

subdivision shall be liable in the same manner and to the same extent as a 

private individual under like circumstances”).

81 Memorandum brief for appellant in opposition to appellee’s motion for 

summary dismissal or affirmance at 4.
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Before the district court, Edwards argued this statutory provision established Douglas County’s legal duty. But on appeal, 

we understand Edwards to contend that § 86-441 should 

be construed as a waiver of sovereign immunity for claims 

alleging negligence against any provider of 911 services. 

We disagree.

The Legislature has declared:

[N]o political subdivision of the State of Nebraska shall 

be liable for the torts of its officers, agents, or employees, 

and that no suit shall be maintained against such political 

subdivision or its officers, agents, or employees on any 

tort claim except to the extent, and only to the extent, 

provided by the [PSTCA]. 82

[17] As such, the PSTCA provides “‘the exclusive means’” 83

by which to maintain a tort claim against a political subdivision and its employees. The PSTCA does expressly reference 

and incorporate some statutes outside the PSTCA, 84 but the 

PSTCA makes no reference to § 86-441 or to any other statute 

contained in the ETCSA. Similarly, the ETCSA makes no reference whatsoever to the PSTCA. 85

[18] Moreover, we see nothing in the express language of 

§ 86-441 which indicates the Legislature intended to waive sovereign immunity for claims against political subdivisions. The 

82 § 13-902.

83 Connelly v. City of Omaha, 284 Neb. 131, 151, 816 N.W.2d 742, 760 

(2012). Accord Geddes, supra note 22.

84 See, e.g., §§ 13-903 to 13-907; § 13-909; § 13-910; §§ 13-912 to 13-915; 

§ 13-917; § 13-918; §§ 13-923 to 13-925; § 13-928.

85 Compare, e.g., Neb. Rev. Stat. § 13-2520 (Reissue 2012) (joint public 

agency may be sued subject to PSTCA); Neb. Rev. Stat. § 47-1005 (Supp. 

2019) (tort claims for violation of Healthy Pregnancies for Incarcerated 

Women Act governed by PSTCA); Neb. Rev. Stat. § 71-15,168(1) (Reissue 

2018) (tort claims against housing agency governed by PSTCA); Neb. 

Rev. Stat. § 76-2328 (Reissue 2018) (claims under One-Call Notification 

System Act subject to PSTCA).
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plain text of the statute provides “immun[ity] from liability” 86

to governing bodies, public safety agencies, and service suppliers and their employees and agents, “except for failure to 

use reasonable care or for intentional acts.” 87 This language 

appears to except both negligent and intentional acts, and it is 

thus unclear what sort of immunity the Legislature intended 

to confer. But we express no opinion in that regard, because 

whatever the proper interpretation may be of the language in 

§ 86-441, it is not a waiver of sovereign immunity.

As stated, statutes purporting to waive the protection of 

sovereign immunity are strictly construed in favor of the sovereign and against the waiver. 88 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. 89 If there 

is any doubt as to whether immunity has been waived, the 

sovereign must prevail. 90 Applying these settled principles, 

we do not construe § 86-441 as an express waiver of sovereign immunity.

CONCLUSION

The Legislature has broadly exempted from the PSTCA 

“[a]ny claim arising out of assault,” 91 and Edwards’ negligence claim against Douglas County falls squarely within this 

exemption. When an exemption under the PSTCA applies, 

the political subdivision is immune from suit, and the proper 

remedy is to dismiss the action for lack of subject matter 

jurisdiction. 92

86 § 86-441.

87 Id.

88 Moser, supra note 3.

89 Id.

90 See Jill B. & Travis B., supra note 22.

91 § 13-910(7).

92 Lambert, supra note 8.
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Miller-Lerman, J., dissenting.

For all the reasons explained in my dissent in Moser v. State, 

307 Neb. 18, 948 N.W.2d 194 (2020), I again respectfully 

disagree with the majority’s conclusion that, based on sovereign immunity, the governmental entity cannot be sued for its 

alleged antecedent negligence if there is an assault by anyone 

anywhere in the picture.

In this case, Julie Edwards’ brother John Edwards called 

the 911 emergency dispatch service at 10:12:17 a.m., after 

being shot by Kenneth Clark. As John lay dying in the basement, he informed the 911 operator that he had been shot in 

the stomach. Thereafter, in a series of seven calls, the 911 

operator variously asked John to move around and to provide 

an exact address for the house, and when John repeated that 

he had been shot, the 911 operator said in a call at 10:33:58, 

“[y]eah, I heard that.” At this point John dialed 911 a long 

time ago. As 911 dawdled, Clark took Edwards upstairs and 

sexually assaulted her at gunpoint. Eventually, law enforcement were dispatched at 10:54:06 a.m. and arrived at approximately 10:58:41 a.m.

In her complaint, Edwards alleged that Douglas County 

(County) had been negligent by virtue of the actions of its 

911 operator, who failed to use reasonable care in handling 

the emergency calls such that the emergency personnel did 

not arrive at the house in a timely manner. Edwards specifically alleged that “[w]hile waiting for emergency personnel 

to arrive, [she] was sexually assaulted at gunpoint.” Edward’s 

Although the district court entered a judgment of dismissal 

on different grounds, we affirm that dismissal on grounds 

of sovereign immunity. 93 The county’s motion for summary 

affirmance or dismissal is overruled as moot.

Affirmed.

93 See Davis, supra note 10 (providing that appellate court may affirm lower 

court’s ruling that reaches correct result, albeit on different reasoning).
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claim was that the 911 operator was dilatory; she did not claim 

that the 911 operator assaulted her.

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 in 

Moser, supra, and again today, the majority refuses to follow 

U.S. Supreme Court precedent. Moser overruled Doe based 

on the dubious notion that the U.S. Supreme Court and the 

Nebraska Supreme Court interpret the same statutory language 

so differently that adhering to U.S. Supreme Court precedent 

would offend Nebraska. As I explained in my Moser dissent, 

there is no meaningful difference between statutory interpretation habits of the Nebraska Supreme Court and the U.S. 

Supreme Court in this regard and reading the text of Neb. Rev. 

Stat. § 13-910(7) (Reissue 2012) in the context of the Political 

Subdivisions Tort Claims Act (PSTCA) provisions of which it 

is a part, including the definition of “claim” in Neb. Rev. Stat. 

§ 13-903(4) (Reissue 2012), I conclude that the intentional tort 

assault exception to the waiver of sovereign immunity does not 

apply; hence, the County is subject to suit in this case.

New Theory by the Government 

on Appeal—Again.

As an aside, I mention that this is one of a number of recent 

cases in which the governmental party introduced a new theory 

for the first time on appeal—in this instance, in a motion for 

summary dismissal or affirmance on the eve of oral argument. 

See Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020) 

(Miller-Lerman, J., dissenting) (noting that theory raised for 

first time in appellate brief); Candyland, LLC v. Nebraska 

Liquor Control Comm., 306 Neb. 169, 944 N.W.2d 740 (2020) 

(Miller-Lerman, J., concurring) (noting that theory raised for 

first time at oral argument); State v. Vann, 306 Neb. 91, 944 

N.W.2d 503 (2020) (Miller-Lerman, J., concurring) (noting 

that theory raised for first time at oral argument resulting in 
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opportunistic and novel use of “plain error” review to overrule 

precedent). Unlike the County’s approach in the trial court, 

where the County asserted that it owed no duty to Edwards, 

about which I make no comment, the County jumped on the 

Moser bandwagon for the first time late in the appeal and now 

contends that the complaint should be dismissed based on the 

intentional tort assault exception to the waiver of sovereign 

immunity. Although Edwards may have a burden in being able 

to prove negligence by the County, in my view, the case should 

not be dismissed based on sovereign immunity, and further, the 

record showed sufficient facts to survive a motion for summary judgment.

The Nebraska Statute and the 

Federal Statute Should Be 

Read the Same Way.

As in Moser, supra, a case involving inmate assault, the 

majority reasons that the government’s earlier negligence arose 

out of the subsequent assault by a nongovernmental assailant. 

The majority believes that Nebraska abides by a unique statutory interpretation scheme, so it cannot follow the interpretation of the same language as found in Sheridan, supra. But, as 

I explained in my dissent in Moser, the interpretation scheme 

is the same, i.e., read the waiver of immunity strictly and the 

exceptions thereto broadly, and therefore, one should expect 

the same result. The majority, however, has chosen to ignore 

the wisdom of the U.S. Supreme Court precedent and insists 

that Nebraska should read the same language differently and 

that this reading is what the Nebraska Legislature intended. I 

respectfully disagree.

As I explained in my Moser dissent and continue to believe, 

the majority has got it wrong. In that dissent, I stated:

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 
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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 [Federal Tort 

Claims Act] exceptions broadly to preclude claims for 

actions Congress intended to except from the FTCA’s 

general waiver of immunity.” Dolan v. Postal Service, 

546 U.S. 481, 499 n.3, 126 S. Ct. 1252, 163 L. Ed. 2d 

1079 (2006) . . . .

The U.S. Supreme Court has warned, however, that 

“‘unduly generous interpretations of the exceptions run 

the risk of defeating the central purpose of the statute,’ 

. . . which ‘waives the Government’s immunity from suit 

. . . .’” 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). 

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) 

and 13-910(7)], [the section] may not bar mixed claims 

of negligence and intentional conduct in the relatively 

uncommon case” where the negligence claim is independent of the intentional tort. Guccione v. U.S., 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.
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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.

Moser v. State, 307 Neb. 18, 35-36, 948 N.W.2d 194, 206 

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

In my view, the majority’s act of broadening the assault 

exception through unnecessary interpretation is a judicial 

expansion beyond the statute’s text and is a usurpation of the 

legislative power.

The Intentional Tort Assault Exception Applies to 

Claims Alleging Intentional Torts Committed 

by Governmental Employees But Not 

to Intentional Torts Committed by 

Nongovernmental Assailants.

The majority states that there is no basis for applying the 

exception “differently depending on whether the assailant was 

a governmental or a nongovernmental actor.” To the contrary, 

the difference is in the very text of the PSTCA statute, which 

the majority avoids quoting in its intentional tort exception 

analysis. The statutory language shows that the language of the 

intentional tort exception (sometimes referred to as “exemption”) applies to intentional torts committed by governmental 

employees but not to intentional torts committed by nongovernmental actors.

The majority relies on the § 13-910(7) exception, but fails 

to explain—“exception to what?” The answer is that the exception is applicable only to a “claim” that a governmental 

employee—not a nongovernmental person—committed the 

very tort sought to be excepted. That is, the tort allegedly committed by the governmental employee must be the same tort 
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for which the exception is applicable. So, if the governmental 

employee commits an assault, the governmental entity can 

receive immunity based on the assault exception to the waiver 

of sovereign immunity. But if the governmental employee 

commits a nonassault act of negligence, the governmental 

entity cannot receive immunity based on the assault exception 

where the assault was committed by a random individual who 

is not a governmental employee.

The PSTCA’s general waiver of immunity applies only 

to “tort claims” of its employees. Neb. Rev. Stat. § 13-902 

(Reissue 2012). The type of claims covered by the PSTCA 

waiver of immunity are defined in Neb. Rev. Stat. § 13-903(4) 

(Reissue 2012), where “claim” is defined as:

Tort claim shall mean any claim against a political subdivision for money only on account of damage to or loss 

of property or on account of personal injury or death, 

caused by the negligent or wrongful act or omission of 

any employee of the political subdivision, while acting 

within the scope of his or her office or employment, 

under circumstances in which the political subdivision, if 

a private person, would be liable to the claimant for such 

damage, loss, injury, or death but shall not include any 

claim accruing before January 1, 1970.

Thus, under § 13-903(4), a “claim” is an “act or omission” 

of an “employee” of the political subdivision. An “employee” 

under § 13-903(3) is defined as “[e]mployee of a political subdivision shall mean any one or more officers or employees of 

the political subdivision . . . .”

The exception on which the majority relies in its resort to 

statutory interpretation is found in § 13-910, which provides:

The [PSTCA] shall not apply to:

. . . .

(7) Any claim [defined as a negligent or wrongful act 

or omission by a governmental employee in § 13-903(4),] 

arising out of assault, battery, false arrest, false imprisonment, malicious prosecution, abuse of process, libel, 
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slander, misrepresentation, deceit, or interference with 

contract rights.

Construing the same language, the U.S. Supreme Court 

has explained:

The exception should therefore be construed to apply 

only to claims that would otherwise be authorized by 

the basic waiver of sovereign immunity. Since an assault 

by a person who was not employed by the Government 

could not provide the basis for a claim under the FTCA 

[or the [PSTCA], the [intentional tort] exception could 

not apply to such an assault; rather, the exception only 

applies in cases arising out of assaults by federal [or 

governmental subdivision] employees.

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

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

The definitional statute, § 13-903(4), which is omitted from 

the majority’s analysis, states “claim” “shall mean . . . negligent or wrongful act or omission of any employee of the 

political subdivision.” (Emphasis supplied.) Under the PSTCA, 

sovereign immunity is waived for certain acts, and such acts 

give rise to “claims” which form the basis of viable lawsuits 

unless such claims are excepted. “Claim” is a statutory word 

of art. So the exception for “[a]ny claim arising out of assault” 

in § 13-910(7) by definition plainly means that a “negligent or 

wrongful act or omission of an employee of the political subdivision” of the kind described will be excepted. See § 13-903(4) 

(emphasis supplied).

These statutory words defining “claim” are plain, direct, and 

unambiguous. We have repeatedly said:

When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, understood in context. Rogers v. Jack’s Supper 

Club, 304 Neb. 605, 935 N.W.2d 754 (2019). 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 
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plain, direct, and unambiguous. Id. It is not within the 

province of the courts to read meaning into a statute that 

is not there or to read anything direct and plain out of a 

statute. Id.

Parks v. Hy-Vee, 307 Neb. 927, 944-45, 951 N.W.2d 504, 518 

(2020). Instead of accepting that the text of these statutes is 

plain, the majority opinion takes a lengthy excursion in statutory interpretation, and in so doing, it ignores the controlling 

statutory text defining “claim” and this context to which exceptions are applied.

So in the instant case, we ask: What is the alleged wrongful act of the governmental employee which forms the basis 

for the “claim”? Edwards’ “claim” against the County is based 

on its alleged negligent handling of the 911 calls. The claim 

is based on what the County’s employees did in the course of 

their employment, and no one is claiming in this case that a 

County employee assaulted Edwards. The claim does not arise 

out of the assault; the assault is an independent intentional tort. 

Nevertheless, the majority persists in misconstruing the statute. 

As in Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020), 

the plaintiff alleges that negligence was committed by a governmental entity and that the assault is the subsequent injury 

or event. In my view, the majority gets it backward; it reasons 

that the later “assault,” which is a listed act in § 13-910(7), led 

to the earlier negligence claim.

What if Clark stole money out of Edwards’ purse during 

the period of the delay? Stealing is not listed as an excepted 

act in § 13-910(7). Would the majority reason that the claim 

of negligently delayed 911 handling arose from the subsequent theft and, because theft is not on the list of § 13-910(7), 

that the County is not immune and remains subject to suit? 

That is, in the majority view, the Legislature, in enacting 

§ 13-910(7), believed that whether a political subdivision can 

be sued for its earlier negligence depends on the fortuitous 

nature of the crime committed later by the nongovernmental 
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employee. The majority’s reasoning is neither warranted by 

statutory text nor sensible.

Referring to the language and purpose of the statute, I ask: 

Should a government’s liability for its earlier negligent act 

depend on the type of crime a third party later commits? Does 

that make the government’s act nontortious? What is the incentive for good 911 hygiene if 911 negligence can be obliterated 

by the later criminal act of a third party? Is the reading of the 

statute by the majority what the Legislature intended?

We recently stated that “[i]t is a court’s duty to discover, 

if possible, the legislative intent from the statute itself.” In re 

Guardianship & Conservatorship of J.F., 307 Neb. 452, 458, 

949 N.W.2d 496, 502 (2020). And we have long held that it 

is presumed that the Legislature intended a sensible, rather 

than an absurd, result. Hoiengs v. County of Adams, 254 Neb. 

64, 574 N.W.2d 498 (1998). We have specifically applied the 

preference for a sensible reading to the PSTCA. E.g., Stick v. 

City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015). With 

the foregoing in mind, I respectfully believe that the interpretation of the majority of the intentional tort exception in the 

PSTCA is neither supported by the text of the statute, sensible, 

nor intended by the Legislature. Instead, it is an unwarranted 

judicial expansion of a statutory exception.

The Court Invites the 

Legislature to Act.

The majority reading strays from the text of the statute, 

strays from the principles of statutory construction in general 

and in the sovereign immunity jurisprudence in particular, 

strays from the reading of the same language by the U.S. 

Supreme Court, strays from a sensible reading of § 13-910, 

and strays from the fact the Legislature has long acquiesced in 

this court’s reading of the assault exception in Doe v. Omaha 

Pub. Sch. Dist., 273 Neb 79, 727 N.W.2d 447 (2007), and 

in my view, the majority inappropriately comments on fiscal 

considerations in its legal analysis. After having judicially 
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expanded the statutory intentional tort exception, the majority finds itself in the awkward position of entreating the 

Legislature to consider restoration of the intentional tort assault 

exception to the status quo ante Moser. I welcome restoration 

by the Legislature.

The majority view developed in Moser has broad consequences. This case involves a woman seeking to avoid violence. What if 911 dawdled while your daughter was being 

sexually assaulted at gunpoint?