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RaySean Barber, appellant, v.

State of Nebraska, appellee.

___ N.W.3d ___

Filed April 19, 2024. No. S-23-627.

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

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

Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 

2022), 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. Tort Claims Act: Legislature: Immunity: Waiver. Through the enactment of the State Tort Claims Act, the Legislature has waived sovereign 

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

4. Tort Claims Act: Immunity: Waiver. The State Tort Claims Act contains exemptions to the limited waiver of sovereign immunity, and those 

exemptions describe the types of tort claims for which the State retains 

sovereign immunity.

5. Tort Claims Act: Immunity: Waiver: Jurisdiction: Dismissal and 

Nonsuit. When a claim falls within an exemption under the State Tort 

Claims Act, sovereign immunity for the claim has not been waived 

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

6. Statutes: Waiver: Immunity. In order to strictly construe statutes 

against a waiver of sovereign immunity, courts must read statutory 

exemptions from a waiver of sovereign immunity broadly.

7. Tort Claims Act: Battery: Liability. When deciding whether conduct 

falls within the statutory exemption for any claim arising out of battery 

Nebraska Supreme Court Online Library

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

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under the State Tort Claims Act, it is only necessary to determine 

whether the conduct arises out of a battery, and courts need not determine whether the actor ultimately could be held liable for any damage 

resulting from the battery, based on the presence or absence of affirmative defenses.

8. Battery: Malpractice: Physician and Patient. Although some medical 

malpractice claims involve batteries, not all do.

9. Torts: Battery: Words and Phrases. Battery is defined as the actual 

infliction of unconsented injury upon or unconsented contact with 

another.

10. Torts: Battery: Malpractice: Physician and Patient. Nebraska courts 

distinguish batteries committed by a physician from claims of medical 

malpractice. Battery actions in the medical context are limited to situations where the physician did not gain consent for his or her actions 

or greatly exceeded the scope of that consent, e.g., operating on the 

wrong limb.

11. Torts: Battery. Consent to a medical procedure defeats a battery claim.

12. Torts: Words and Phrases. Consent is willingness in fact for conduct 

to occur. It may be manifested by action or inaction and need not be 

communicated to the actor.

13. Torts: Battery. Consent for medical treatment need not be express in 

order to defeat a battery claim, and implied consent may be inferred 

from the patient’s action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment.

14. Torts: Battery: Malpractice: Physician and Patient. Generally, when 

plaintiffs assert that a physician provided medical treatment without 

their express or implied consent, they present a claim of battery. And 

when plaintiffs assert that a physician acted beyond the scope of any 

express or implied consent when providing medical treatment, they 

present an issue of informed consent properly addressed as a medical 

malpractice claim.

15. Tort Claims Act: Immunity: Complaints. To determine whether a 

claim falls within the exemption for claims arising out of assault or battery, Nebraska courts apply the “gravamen” of the complaint test.

16. Complaints: Words and Phrases. The “gravamen” of a complaint is 

the substantial point or essence of a claim, grievance, or complaint, and 

it is found by examining and construing the substance of the allegations 

of the complaint as a whole without regard to the form or label adopted 

by the pleader or the relief demanded.

17. Tort Claims Act: Assault: Battery. A claim arises out of an assault or 

battery for purposes of Neb. Rev. Stat. § 81-8,219(4) (Cum. Supp. 2022) 
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if the claim stems from, arises out of, is inextricably linked to, is essential to, or would not exist without the assault or battery.

18. ____: ____: ____. When a tort claim against the government seeks to 

recover damages for personal injury stemming from an assault or battery, the claim necessarily arises out of assault or battery and is barred 

by the intentional tort exemption under the State Tort Claims Act.

Appeal from the District Court for Douglas County: Tressa 

M. Alioth, Judge. Affirmed.

RaySean Barber, pro se.

Michael T. Hilgers, Attorney General, Eric J. Hamilton, and 

Zachary B. Pohlman for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik, 

JJ., and Harder, District Judge.

Stacy, J.

RaySean Barber appeals from an order dismissing his negligence action against the State of Nebraska. He sued the 

State under the State Tort Claims Act (STCA), 1 alleging that 

medical staff with the Nebraska Department of Correctional 

Services (DCS) negligently determined he was mentally ill 

and dangerous and obtained an involuntary medication order 

(IMO) authorizing monthly injections of the antipsychotic 

medication Haldol against his will. The State moved to dismiss Barber’s complaint for lack of subject matter jurisdiction pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1), arguing 

the claim was barred by the STCA’s exemption for “[a]ny 

claim arising out of . . . battery.” 2 The district court agreed 

and dismissed the complaint, reasoning that “[n]o semantic 

recasting of the events can alter the fact that the unconsented 

and involuntary injection . . . is the cause of Barber’s alleged 

1 See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 

2022).

2 § 81-8,219(4).
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injury—a battery.” We agree that Barber’s claim falls within 

the exemption and affirm.

BACKGROUND

The factual record in this appeal is limited to the allegations 

of Barber’s complaint, which, at this stage of the proceedings, 

we accept as true. 3 Those allegations, and the reasonable inferences therefrom, indicate that while Barber was an inmate in 

the custody of DCS, he was diagnosed with “schizoaffective 

disorder, bipolar type, multiple episodes, currently in acute 

episode.” He refused treatment with antipsychotic medications, prompting DCS medical staff to apply for a series of 

IMOs pursuant to DCS administrative procedures. According 

to the complaint, those procedures required DCS staff to conduct a mental health evaluation before applying for an IMO 

and also required a showing that Barber was mentally ill 

and dangerous.

In November 2019, a hearing was held on the initial IMO 

application before a committee of three DCS psychiatric staff. 

A mental health practitioner employed by DCS was appointed 

to represent Barber at the hearing. The committee found 

that Barber met the criteria for issuance of the IMO. Barber 

appealed the committee’s decision to the director of DCS, who 

upheld it. Thereafter, approximately every 6 months for the 

next 3 years, DCS medical staff followed a similar process to 

apply for and receive another IMO. As a result of the IMOs, 

Barber was injected with Haldol once a month for 3 years during his incarceration, against his will.

COMPLAINT

In March 2023, Barber filed what he describes as a medical malpractice action against the State under the STCA. His 

complaint alleged that DCS employees were negligent in 

“applying for, ordering the initiation and continuation of, and 

3 See, Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021); Brown v. 

State, 305 Neb. 111, 939 N.W.2d 354 (2020).
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upholding” the IMOs and that DCS medical staff “failed to 

adhere to medical standards” when determining he was mentally ill and dangerous.

Barber alleges that as a “proximate result of the IMO,” he 

suffered physical, mental, and emotional damages. The complaint also alleges the IMOs prevented him from participating in work release programs and required him to take other 

“potentially dangerous” medications to control “the side effects 

of the Haldol that he was injected with.” Barber seeks monetary damages of $2.5 billion and “treble damages for the gross 

conduct of the officials.”

Motion to Dismiss and 

District Court Order

The State moved to dismiss Barber’s complaint pursuant to 

§ 6-1112(b)(1), asserting the claim was barred by sovereign 

immunity because it fell within the exemption in § 81-8,219(4) 

for “[a]ny claim arising out of . . . battery.” After a hearing, the 

district court agreed and entered an order granting the State’s 

motion and dismissing Barber’s complaint with prejudice.

The court’s order recited the rule that exemptions to the 

STCA must be read broadly to preserve the State’s limited 

waiver of immunity 4 and observed that in the context of tort 

claims, battery is defined as “an actual infliction of an unconsented injury upon or unconsented contact with another.” 5

The court also noted that in the medical context, a physician’s 

failure to obtain the patient’s consent for treatment is considered a battery. 6 The court concluded that the involuntary 

administration of medication pursuant to an IMO is, “by its 

nature[,] . . . treatment without consent” and thus described 

the “essence” of Barber’s claim to be a battery, reasoning that

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

5 Britton v. City of Crawford, 282 Neb. 374, 382, 803 N.W.2d 508, 515 

(2011) (internal quotation marks omitted).

6 See, e.g., Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008).
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DCS physicians’ diagnoses led to an [IMO] which prevented Barber from exercising his right to direct his 

medical treatment. [DCS] healthcare providers then 

made physical contact with Barber by executing the IMO 

against his wishes and consent by injecting him with 

Haldol. Because his claim arises out of this physical contact, his claim can only be characterized as a battery.

And the court explained that its analysis would be the same 

whether Barber’s claim was construed as an ordinary battery 

or a “medical battery,” reasoning that either way, the claim 

would fall within the exemption for claims arising out of a 

battery. The court dismissed Barber’s complaint, concluding 

that “[n]o semantic recasting of the events can alter the fact 

that the unconsented and involuntary injection . . . is the cause 

of Barber’s alleged injury—a battery.”

Barber filed this timely appeal, which we moved to our 

docket on our own motion.

ASSIGNMENT OF ERROR

Barber assigns, restated, that the district court erred in concluding the allegations of his complaint fall within the STCA’s 

exemption for claims arising out of a battery.

STANDARD OF REVIEW

[1,2] 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. 7 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. 8

7 Williams, supra note 3.

8 Id.
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ANALYSIS

Before considering Barber’s assignment of error, we 

briefly review the legal authority permitting states to administer antipsychotic medication to inmates against their will. In 

Washington v. Harper,

 9 the U.S. Supreme Court recognized 

that an inmate in state custody “possesses a significant liberty 

interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth 

Amendment.” But Harper also recognized that states have a 

legitimate interest in providing inmates with medical treatment and in decreasing the danger posed by inmates with an 

untreated mental illness. As such, Harper held that “given 

the requirements of the prison environment, the Due Process 

Clause permits the State to treat a prison inmate who has a 

serious mental illness with antipsychotic drugs against his 

will, if the inmate is dangerous to himself or others and the 

treatment is in the inmate’s medical interest.” 10

Under Harper, the decision to medicate can be “made by 

medical professionals rather than a judge,” 11 so long as the 

medical professionals were not also involved in the inmate’s 

treatment or diagnosis. 12 Harper also addressed the minimal 

procedural safeguards to which an inmate is entitled before 

the State may administer antipsychotic drugs against the 

inmate’s will, including (1) notice, (2) the right to be present 

at an adversary hearing, (3) the right to present and crossexamine witnesses, and (4) the opportunity to seek judicial 

review of the decision under state law. The Harper Court concluded that due process does not require representation by an 

attorney at the adversarial hearing; it is sufficient to provide 

9 Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 108 L. Ed. 

2d 178 (1990).

10 Id., 494 U.S. at 227.

11 Id., 494 U.S. at 231.

12 Harper, supra note 9.
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the inmate with “an independent lay adviser who understands 

the psychiatric issues involved.” 13

The DCS policy governing the IMO procedure is not in 

the appellate record, but Barber’s brief on appeal states that 

“the procedures discussed in Harper were adhered to” 14 by 

DCS, and he does not challenge that procedure in this action. 15

Instead, he seeks monetary damages under the STCA for the 

alleged negligent acts and omissions of DCS staff in seeking, 

administering, and upholding the IMOs that allowed the State 

to inject Barber with Haldol against his will.

STCA

[3-6] Through the enactment of the STCA, the Legislature 

has waived sovereign immunity with respect to some, but not 

all, types of tort claims. 16 The STCA contains exemptions to 

the limited waiver of sovereign immunity, 17 and those exemptions describe the types of tort claims for which the State 

retains sovereign immunity. 18 When a claim falls within an 

exemption under the STCA, sovereign immunity for the claim 

has not been waived and the proper remedy is to dismiss 

the claim for lack of subject matter jurisdiction. 19 And we 

have repeatedly recognized that in order “to strictly construe 

[statutes] against a waiver of sovereign immunity, [courts] 

13 Id., 494 U.S. at 236.

14 Brief for appellant at 12.

15 But see Barber v. Frakes, No. 8:20CV282, 2022 WL 4131193 (D. Neb. 

Sept. 12, 2022) (dismissing Barber’s 42 U.S.C. § 1983 (2018) claim 

alleging DCS officials violated his due process rights under IMOs).

16 See, Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022); Clark 

v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022); Williams, 

supra note 3; Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 

(2021).

17 See § 81-8,219.

18 See Edwards, supra note 16.

19 See, Clark, supra note 16; Edwards, supra note 16.
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must read [statutory] exemptions from a waiver of sovereign 

immunity broadly.” 20

As relevant here, the exemption in § 81-8,219(4) effectively 

retains the State’s sovereign immunity for “[a]ny claim arising 

out of assault [or] battery.” Because the exemption for claims 

arising out of assault or battery is the same under the STCA 

and the Political Subdivisions Tort Claims Act (PSTCA), 21 our 

cases construing the STCA exemption are applicable to cases 

construing the PSTCA exemption and vice versa. 22

This court has construed and applied the exemption for 

claims arising out of assault or battery in several cases, 23 often 

referring to the intentional torts of assault and battery interchangeably. Although the same principles of sovereign immunity apply whether we are discussing claims arising out of 

assaults or claims arising out of batteries, it is helpful to review 

our cases specifically discussing the exemption in the context 

of an intentional battery.

For instance, we considered the exemption for claims arising out of battery in Britton v. City of Crawford. 24 There, 

an armed 16-year-old burglary suspect was discovered hiding in a vacant building, and when law enforcement officers attempted to apprehend the suspect, he drew a gun and 

20 Moser, supra note 4, 307 Neb. at 29, 948 N.W.2d at 203. Accord, Brown, 

supra note 3; Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 

(2019); Rouse v. State, 301 Neb. 1037, 921 N.W.2d 355 (2019); Amend v. 

Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018); Stick 

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

21 See Neb. Rev. Stat. § 13-910(7) (Reissue 2022).

22 See, e.g., Moser, supra note 4.

23 See, e.g., Dion, supra note 16; Williams, supra note 3; Edwards, supra

note 16; Moser, supra note 4; Rutledge v. City of Kimball, 304 Neb. 593, 

935 N.W.2d 746 (2019); Britton, supra note 5; 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 v. State, 

297 Neb. 955, 902 N.W.2d 165 (2017); Johnson v. State, 270 Neb. 316, 

700 N.W.2d 620 (2005).

24 Britton, supra note 5.
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pointed it at the officers. One of the officers shot and killed 

the suspect and was charged with second degree assault. As 

an affirmative defense to the charge, the officer claimed selfdefense and was found not guilty. Later, the suspect’s estate 

filed an action under the PSTCA, alleging the officers were 

negligent in how they handled the suspect. The district court 

dismissed the action, finding it was barred by the PSTCA’s 

exemption for claims arising out of battery. 25

On appeal in Britton, we focused first on the definition of 

battery, explaining:

In Nebraska, the intentional tort of battery is defined as 

“‘an actual infliction’ of an unconsented injury upon or 

unconsented contact with another.” We have also recognized the definition of battery as “any intentional, unlawful physical violence or contact inflicted on a human 

being without his consent.” 26

We stated that “contact is unlawful if it is unconsented to” 27

and that “harmful contact intentionally done is the essence of 

battery.” 28 Applying this definition, we concluded that because 

the officer’s conduct in shooting the suspect amounted to 

a battery, the claim fell within the PSTCA’s exemption for 

claims arising out of battery.

In urging a contrary result, the suspect’s estate in Britton

argued that because the officer successfully defended against 

the criminal charges by pleading self-defense, the unconsented contact was not unlawful and thus there was no battery 

for purposes of the PSTCA exemption. We rejected that argument, explaining:

In discussing the intentional torts exception to the 

PSTCA, we have not analyzed whether an affirmative 

defense would remove an intentional tort from coverage 

25 See § 13-910(7).

26 Britton, supra note 5, 282 Neb. at 381-82, 803 N.W.2d at 515.

27 Id. at 382, 803 N.W.2d at 515.

28 Id.
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under the exception. We conclude that such an analysis 

is not appropriate [when determining] whether certain 

claims fall under the exception found in § 13-910(7). The 

plain language of the exception excludes an enumerated 

list of intentional torts. On its face, it does not contemplate whether such intentional acts are legally justified. 

Nor does the exception state that the waiver of sovereign 

immunity only applies to claims based on intentional torts 

for which the actor could be held liable. 29

[7] Britton held that when deciding whether conduct falls 

within the battery exemption in § 13-910(7), “it is only necessary to determine whether the conduct ‘aris[es] out of’ a 

battery,” 30 and courts “need not determine whether the actor 

ultimately could be held liable for any damage resulting from 

the battery, based on the presence or absence of affirmative defenses.” 31

More recently, we considered the battery exemption in 

Dion v. City of Omaha.

 32 There, a film crew was following 

police on a robbery call, and when police shot at a fleeing 

suspect, a member of the film crew was shot and killed. The 

deceased’s estate brought an action under the PSTCA, claiming the officers were negligent in several respects. On appeal, 

we addressed whether the estate’s claim was barred by the 

exemption for claims arising out of battery.

The estate argued that no battery occurred because the officers’ acts in shooting at the fleeing suspect were “privileged.” 33

We acknowledged that “a privilege to make the contact is 

a defense to battery,” 34 and we explained that although it is 

29 Id. at 382-83, 803 N.W.2d at 515.

30 Id. at 383, 803 N.W.2d at 516.

31 Id.

32 Dion, supra note 16.

33 Id. at 548, 973 N.W.2d at 686.

34 Id. at 550, 973 N.W.2d at 687. See, also, Restatement (Second) of Torts 

§ 118 (1965).
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sometimes described as a “‘privilege to commit battery,’” it 

is more precise to say it is a “privilege to commit what would 

otherwise be a battery.” 35 That is so, we explained, because a 

“privileged act is generally defined as one that would ordinarily be tortious, but which, under the circumstances, does not 

subject the actor to liability.” 36 Then, as we had done earlier 

in Britton, we rejected the suggestion that a valid defense to a 

claim of battery necessarily causes the battery to fall outside 

the PSTCA exemption under § 13-910(7).

Britton and Dion illustrate that when determining whether 

a claim falls within the statutory exemption for claims arising 

out of battery, it is irrelevant whether the actor has a viable 

affirmative defense or justification for committing the battery. 

To the extent Barber argues that the exemption in § 81-8,219(4) 

cannot apply here because the IMO gave DCS staff a privilege 

to commit what would otherwise be a battery, we reject that 

argument as meritless.

But we understand Barber’s primary argument on appeal to 

be that his claim of “unconsented to medical treatment” 37 is 

solely a claim for medical malpractice, and consequently, he 

presents no claim that can be characterized as a battery. To 

address this contention, we first review the legal distinction 

between claims asserting medical battery and claims asserting medical negligence under Nebraska law. Once we determine the nature of the claim Barber has alleged, we consider 

whether it falls within the exemption for claims arising out 

of battery.

Medical Malpractice Versus 

Medical Battery

[8] We have recognized that although some medical malpractice claims involve batteries, not all do. 38 We explained 

35 Id.

36 Id.

37 Reply brief for appellant at 4.

38 See Yoder, supra note 6.
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the relevant distinction in Yoder v. Cotton. 39 In that case, the 

plaintiff was ordered by the Workers’ Compensation Court to 

submit to an independent medical examination (IME). After 

the IME, the plaintiff sued the IME physician, alleging claims 

of battery and negligence. The battery claim was based on 

allegations that the plaintiff had not consented to be touched 

by the physician, but, rather, had been ordered by the court 

to submit to the IME. And the negligence claim alleged the 

physician disregarded the plaintiff’s warnings to be careful 

when examining his right shoulder and instead manipulated 

the shoulder in a way that caused permanent injury.

The district court granted summary judgment on both 

claims, reasoning the battery claim failed because the plaintiff 

had impliedly consented to the IME and the negligence claim 

failed because the plaintiff had not produced expert testimony 

on the issues of standard of care or causation. We affirmed on 

appeal, and in doing so, we addressed which of the plaintiff’s 

claims were properly characterized as battery and which were 

properly characterized as medical negligence.

[9-11] Yoder defined battery as the “actual infliction of 

unconsented injury upon or unconsented contact with another” 40

and explained:

Battery committed by a physician has been distinguished from claims of medical malpractice. . . . Battery 

actions in the medical context have been limited to 

situations where the physician did not gain consent for 

his or her actions or greatly exceeded the scope of that 

consent, e.g., operating on the wrong limb. In all cases, 

consent to a procedure defeated a battery claim. 41

39 Id.

40 Id. at 958, 758 N.W.2d at 635. Accord Britton, supra note 5, 282 Neb. 

at 382, 803 N.W.2d at 515 (defining battery as “actual infliction of an 

unconsented injury upon or unconsented contact with another” (internal 

quotation marks omitted)).

41 Yoder, supra note 6, 276 Neb. at 958-59, 758 N.W.2d at 635-36 (emphasis 

supplied).
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[12,13] Yoder relied on the Restatement (Second) of Torts 

to define consent, stating that “‘[c]onsent is willingness in 

fact for conduct to occur. It may be manifested by action 

or inaction and need not be communicated to the actor.’” 42

Yoder also observed that consent for medical treatment need 

not be express in order to defeat a battery claim, reasoning 

that “‘[a]s a practical matter, health professionals cannot be 

required to obtain express consent before each touch or test 

they perform on a patient.’” 43 Yoder stated that “‘implied 

consent may be inferred from the patient’s action of seeking treatment or some other act manifesting a willingness to 

submit to a particular course of treatment’” 44 and that “‘[i]f 

words or conduct are reasonably understood by another to be 

intended as consent, they constitute apparent consent and are 

as effective as consent in fact.’” 45

Finally, Yoder distinguished claims asserting a lack of exress 

or implied consent to medical treatment from claims asserting a lack of informed consent. Yoder explained that when the 

question is “whether a physician overstepped [the] bounds of 

the patient’s initial consent by failing to inform the patient of 

the risks of treatment,” 46 it presents “an issue of negligence 

properly addressed under a medical malpractice claim” 47 based 

on lack of informed consent, rather than a battery.

[14] As such, under the framework discussed in Yoder, 

when plaintiffs assert that a physician provided medical 

treatment without their express or implied consent, they 

42 Id. at 958, 758 N.W.2d at 635 (quoting Restatement (Second) of Torts 

§ 892 (1979)).

43 Id. at 959, 758 N.W.2d at 636 (quoting Jones v. Malloy, 226 Neb. 559, 412 

N.W.2d 837 (1987)).

44 Id.

45 Id. at 958, 758 N.W.2d at 635 (quoting Restatement (Second) of Torts, 

supra note 42).

46 Yoder, supra note 6, 276 Neb. at 959-60, 758 N.W.2d at 636.

47 Id. at 960, 758 N.W.2d at 636.
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present a claim of battery. And when plaintiffs assert that a 

physician acted beyond the scope of any express or implied 

consent when providing medical treatment, they present an 

issue of informed consent properly addressed as a medical 

malpractice claim.

Applying the Yoder framework here, we cannot agree with 

Barber that his complaint presents only a claim of medical 

malpractice and therefore cannot arise out of a battery. This is 

so because Barber has not alleged or argued that DCS medical 

staff went beyond the scope of his express or implied consent 

when obtaining and administering the IMOs. Instead, Barber 

concedes that he did not consent to the injection of antipsychotic medication and that the injections were administered 

against his will. 48 Under Nebraska law, providing medical 

treatment without express or implied consent constitutes a battery, not medical malpractice. 49

Other courts have rejected arguments similar to that presented by Barber. In Lockhart v. Bd. of Regents of the Univ. 

Sys. of Ga.,

 50 the plaintiff gave consent for dental treatment 

of her upper teeth, but the dentist ground down several lower 

teeth instead. The Georgia Tort Claims Act excludes “losses 

resulting from . . . battery,” 51 and the plaintiff in Lockhart

argued this exclusion did not apply because the losses resulted 

from medical malpractice, not from battery. The appellate 

court disagreed, reasoning that under Georgia law, a “medical 

touching without consent is like any other touching without 

consent: it constitutes the intentional tort of battery for which 

an action will lie.” 52 As such, the appellate court concluded 

48 See, e.g., reply brief for appellant at 5 (characterizing claim as one for 

“unconsented to treatment by a physician”).

49 See Yoder, supra note 6.

50 Lockhart v. Bd. of Regents of the Univ. Sys. of Ga., 316 Ga. App. 759, 730 

S.E.2d 475 (2012).

51 Ga. Code Ann. § 50-21-24 (2009).

52 Lockhart, supra note 50, 316 Ga. App. at 762-63, 730 S.E.2d at 478 

(internal quotation marks omitted).
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the unconsented grinding down of the plaintiff’s bottom teeth 

amounted to a medical battery and thus fell within the exemption and was barred by sovereign immunity.

Similarly, in Moos v. United States,

 53 a veteran consented 

to a government surgeon performing surgery on his left leg 

and hip, but the surgeon operated on his right leg and hip. The 

veteran filed a medical malpractice suit under the Federal Tort 

Claims Act, which contained an exception for “[a]ny claim 

arising out of assault [or] battery.” 54 The government successfully moved to dismiss the action for lack of jurisdiction, 

arguing the claim fell within the exception. On appeal, the 

Eighth Circuit Court of Appeals affirmed, reasoning that under 

Minnesota tort law:

“[A] surgeon who performs an operation without the 

consent of the patient is liable for assault and battery 

regardless of lack of intent or negligence on his part. 

Such result is not peculiar to this jurisdiction but is the 

general rule. . . .” This, we think, is an accurate statement 

of the law.

. . . [T]he plaintiff’s claim against the Government is, 

under applicable law, one arising out of an assault and 

battery, of which the court had no jurisdiction under the 

Tort Claims Act. 55

Based on the foregoing, we conclude that because Barber’s 

claim alleges medical treatment without consent, it presents a 

claim of battery under Nebraska law, and we reject his argument that he has asserted only a medical malpractice claim. 

Having determined that the nature of Barber’s claim is a battery, we turn now to whether his claim falls within the STCA’s 

exemption for “[a]ny claim arising out of . . . battery.” 56

53 Moos v. United States, 225 F.2d 705 (8th Cir. 1955).

54 See 28 U.S.C. § 2680(h) (2018).

55 Moos, supra note 53, 225 F.2d at 706.

56 § 81-8,219(4).
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Barber’s Claim Arose 

Out of Battery

[15,16] To determine whether a claim falls within the exemption for claims arising out of assault or battery, Nebraska courts 

apply the “gravamen of the complaint test.” 57 The “gravamen” 

of a complaint is the “substantial point or essence of a claim, 

grievance, or complaint,” and it is found by examining and 

construing the substance of the allegations of the complaint 

as a whole without regard to the form or label adopted by the 

pleader or the relief demanded. 58

Here, accepting the allegations of Barber’s complaint as 

true and drawing all reasonable inferences in his favor, the 

gravamen of his complaint is that the acts or omissions of 

DCS staff in administering Haldol injections against his will 

resulted in his personal injury. Because we have already 

concluded that the nonconsensual medical treatment at issue 

here constitutes a battery under Nebraska law, the only issue 

remaining for our consideration is whether Barber’s claim 

arises out of a battery.

[17,18] A claim arises out of an assault or battery for purposes of § 81-8,219(4) if the claim stems from, arises out of, 

is inextricably linked to, is essential to, or would not exist 

without the assault or battery. 59 In other words, when a tort 

claim against the government seeks to recover damages for 

personal injury stemming from an assault or battery, the claim 

necessarily arises out of assault or battery and is barred by the 

intentional tort exemption under the STCA. 60

The batteries at issue here were allegedly committed by DCS 

employees, and we have consistently held that claims arising out of assaults and batteries committed by governmental 

57 Dion, supra note 16, 311 Neb. at 541, 973 N.W.2d at 681-82 (internal 

quotation marks omitted).

58 Id.

59 See Dion, supra note 16.

60 See Edwards, supra note 16.
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Cite as 316 Neb. 398

employees fall within the exemption, no matter how the claims 

are framed. 61 As we explained in Britton:

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 plaintiff’s] claim. Even if it is 

possible that negligence was a contributing factor to [the 

suspect’s] death, the alleged negligence was inextricably 

linked to a battery. 62

Barber’s claim—that DCS staff negligently subjected him 

to an IMO and injected him with Haldol against his will—is 

a claim that “arises out of” a battery. But for the involuntary 

administration of medication, he would have no claim, and no 

semantic recasting of events can alter the fact that the injection 

of antipsychotic medication without Barber’s consent is the 

basis for his tort claim. Because Barber’s claim arose out of 

a battery, it is barred by the exemption in § 81-8,219(4). His 

arguments to the contrary have no merit.

CONCLUSION

For the foregoing reasons, the district court’s dismissal of 

Barber’s complaint for lack of subject matter jurisdiction was 

correct, and it is affirmed.

Affirmed.

Funke, J., participating on briefs.

Freudenberg, J., not participating.

61 See, e.g., Britton, supra note 5; McKenna, supra note 23; Johnson, supra

note 23.

62 Britton, supra note 5, 282 Neb. at 386, 803 N.W.2d at 518.

Miller-Lerman, J., concurring.

As I read the complaint, Barber did not plead a medical 

malpractice action based on a failure to diagnose. Barber did 

plead a medical battery, i.e., a battery, by a state employee. 
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As such, I think the State is immune under Neb. Rev. Stat. 

§ 81‐8,219(4) (Cum. Supp. 2022) and that such immunity is 

settled in the pre‐Moser v. State, 307 Neb. 18, 948 N.W.2d 194 

(2020), jurisprudence, e.g., Britton v. City of Crawford, 282 

Neb. 374, 803 N.W.2d 508 (2011). To the extent the Moser

framework, to which I have repeatedly dissented, is incorporated in the majority opinion’s analysis, I respectfully believe 

it is not necessary. Based on application of the pre‐Moser

jurisprudence, I concur in the result.