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WILLIAMS v. STATE

Cite as 310 Neb. 588

Cameron Williams, appellant, 

v. State of Nebraska 

et al., appellees.

___ N.W.2d ___

Filed December 17, 2021. No. S-20-604.

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. 

2020), 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. Rules of the Supreme Court: Pleadings: Appeal and Error. An appellate court reviews a district court’s denial of a motion to amend under 

Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an 

appellate court reviews de novo any underlying legal conclusion that the 

proposed amendments would be futile.

4. Jurisdiction. Whether a court has subject matter jurisdiction is a threshold issue.

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

Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 

& Cum. Supp. 2020), the Nebraska Legislature has enacted a limited 

waiver of the State’s sovereign immunity with respect to some, but not 

all, types of tort claims.

6. Political Subdivisions Tort Claims Act: Tort Claims Act: Appeal 

and Error. Because the language of the intentional tort exception is 

nearly identical under both Neb. Rev. Stat. § 13-910(7) (Cum. Supp. 

2020) of the Political Subdivisions Tort Claims Act and Neb. Rev. Stat. 

Nebraska Supreme Court Online Library

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

01/21/2022 09:08 AM CST
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§ 81-8,219(4) (Cum. Supp. 2020) of the State Tort Claims Act, Nebraska 

appellate courts have applied cases construing the exception under the 

Political Subdivisions Tort Claims Act to cases under the State Tort 

Claims Act, and vice versa.

7. Motions to Dismiss: Pleadings. When a court grants a motion to dismiss, a party should be given leave to amend absent undue delay, bad 

faith, unfair prejudice, or futility of amendment. But leave should not be 

granted when it is clear that the defect cannot be cured by amendment.

8. Pleadings. Where leave to amend a complaint is sought before discovery is complete and before a motion for summary judgment has been 

filed, leave to amend should be denied as futile only if the proposed 

amendment cannot withstand a motion to dismiss under Neb. Ct. R. 

Pldg. § 6-1112(b).

9. Motions to Dismiss: Pleadings. Ordinarily, a district court must consider and rule on a pending motion to amend before ruling on a motion 

to dismiss.

Appeal from the District Court for Lancaster County: Lori 

A. Maret, Judge. Affirmed.

Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and James A. 

Campbell, Solicitor General, for appellees.

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

Papik, and Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

Cameron Williams appeals the dismissal of this negligence 

action by the district court for Lancaster County. The claim 

was brought against the State pursuant to Nebraska’s State Tort 

Claims Act (STCA), Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 

(Reissue 2014 & Cum. Supp. 2020). Williams is an inmate 

in the custody of the Nebraska Department of Correctional 

Services (DCS). Williams claims the State was negligent in its 

handling of security when, despite requirements of a “‘keep 

separate’” list, the State placed inmate Jonathan Armendariz, 
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Cite as 310 Neb. 588

who had killed Williams’ brother, in Williams’ housing unit. 

Fearing for his safety, Williams assaulted Armendariz, and in 

retaliation, Williams was later stabbed in his cell.

Applying the intentional tort exception to the STCA, the 

district court concluded that the State was immune and granted 

the State’s motion to dismiss Williams’ negligence claim based 

on lack of subject matter jurisdiction. The district court further 

found that amendment would be futile because the claims are 

inextricably linked to “at least one assault and/or battery” and 

therefore denied Williams’ motion to amend his complaint. 

Williams appeals.

Under settled precedent interpreting the intentional tort 

exception of the STCA, the State is immune from Williams’ 

claims because they arise out of an assault. We affirm the judgment of the district court.

STATEMENT OF FACTS

For purposes of this appeal from the granting of a motion 

to dismiss, our factual record consists only of the allegations 

in the complaint, which at this stage of the proceedings are 

accepted as true. 1

Williams’ complaint alleges he was an inmate in DCS custody when Armendariz was placed in DCS custody. Armendariz 

had murdered Williams’ brother, and when Armendariz began 

serving a sentence in 2011, Williams’ mother was assured that 

in order to ensure Williams’ safety, Armendariz would not 

be placed in the same facility as Williams. DCS was aware 

that Armendariz and other prisoners associated with him, or 

acting on his behalf, including one or more “‘safety threat 

groups’” or “‘gangs,’” posed a threat to Williams’ safety. DCS 

placed Armendariz on Williams’ central-monitoring list, which 

designated the inmates whom DCS should “keep separate” 

from him.

Williams was housed at Tecumseh State Correctional 

Institution (TSCI) from 2013 until 2018. During the summer 

1 See Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020).
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of 2017, despite the identified risks to Williams, Armendariz 

was transferred to TSCI’s restrictive housing unit, otherwise 

referred to as the “Special Management Unit” (SMU). Neither 

Williams nor his mother was informed until October 2017 

of Armendariz’ presence at TSCI. When they learned that 

Armendariz was at TSCI, Williams and his mother warned 

the State and requested protection and a transfer of Williams 

from TSCI. Williams’ mother requested that TSCI separate 

Armendariz and Williams immediately. The warden of TSCI 

told Williams’ mother that Williams was at no risk because 

Armendariz was being housed in the SMU for disciplinary reasons and was separate from Williams, who was in the general 

population unit.

Williams then contacted Scott Frakes, the director of DCS, 

to alert him that the central monitoring “keep separate” restriction was being violated. Williams also requested a transfer 

from his unit manager. Over the next several months, Williams 

made repeated attempts to warn DCS and request a transfer, 

but no action was taken to separate or protect Williams.

Williams again requested a transfer during his reclassification in March 2018. After several weeks, Williams was notified 

that he had been approved to be transferred to the Nebraska 

State Penitentiary (NSP). On May 10, Williams’ mother wrote 

to Frakes to remind him of the danger Armendariz posed 

to Williams, and she requested that the pending transfer 

be expedited.

On May 25, 2018, Armendariz was released from the SMU 

and moved to the same housing unit at TSCI where Williams 

was being housed. The inmates in the housing unit were free 

to move around. Williams knew he would be in frequent direct 

contact with Armendariz and feared being assaulted or killed.

According to Williams, he had “no choice but to protect himself,” so Williams assaulted Armendariz, after which 

Williams was placed in the SMU for 5 days. When Williams’ 

mother learned of the incident, she left messages with officials 

at TSCI to try to expedite Williams’ transfer. She eventually 
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spoke by phone with a deputy warden, who apologized for the 

incident and assured her that Williams would be transferred to 

NSP as soon as possible. Williams was eventually transferred 

to NSP and placed in the general population.

On September 22, 2018, two inmates entered Williams’ 

cell at NSP and assaulted him. Williams was stabbed multiple 

times. DCS told Williams that its “‘Gang Intel’” believed the 

assault was in retaliation for Williams’ attack on Armendariz 

at TSCI.

Williams filed a negligence claim under the STCA, naming as defendants the State, DCS, Frakes, and other State 

actors. Williams’ complaint alleged that the defendants knew 

Armendariz posed a foreseeable risk of physical harm to 

Williams and negligently failed to protect Williams from that 

harm. Williams alleged that as a result, he suffered “physical, 

emotional, mental, and psychological injuries” and sought to 

recover damages for future medical treatment, past and future 

pain and suffering, past lost wages and future loss of earning 

capacity, and past and future disability.

The State moved to dismiss Williams’ complaint for lack 

of subject matter jurisdiction. Before the hearing, Williams 

requested leave to amend the complaint to “allege additional 

facts further establishing . . . subject matter” jurisdiction of his 

claims and to “articulate additional facts establishing the elements of [Williams’] negligence claim in greater detail.”

In its written order, referring to the intentional tort exception 

in the STCA, § 81-8,219(4), the district court determined that 

Williams’ negligence claim was barred by sovereign immunity 

because it arose from “multiple layers of assault/battery.” Next, 

the district court denied Williams’ motion for leave to amend 

his complaint because it concluded that allowing Williams to 

amend would be futile, as all claims would be “clearly inextricably linked to at least one assault and/or battery” and “thus 

‘arise out of’ an assault or battery and are barred by sovereign immunity.”

Williams appeals.
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ASSIGNMENTS OF ERROR

Williams assigns, summarized and restated, that the district 

court erred when it found that (1) Williams’ claim arises from 

an assault or battery and is barred by sovereign immunity and 

(2) amendment of the complaint would be futile.

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. 2 Whether the allegations made 

by a plaintiff constitute a cause of action under the STCA or 

whether the allegations set forth claims which are precluded 

by the exemptions set forth in the act is a question of law, for 

which an appellate court has a duty to reach its conclusions 

independent of the conclusions reached by the district court. 3

[3] An appellate court reviews a district court’s denial of a 

motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an 

abuse of discretion. However, we review de novo any underlying legal conclusion that the proposed amendments would 

be futile. 4

ANALYSIS

Williams contends the district court erred when it granted 

the State’s motion to dismiss and denied his motion for leave 

to amend his complaint. We find no merit to Williams’ assignments of error.

Motion to Dismiss.

[4] The first issue presented is whether the intentional tort 

exception to the State’s waiver of sovereign immunity under 

§ 81-8,219(4) barred Williams’ claim. Because this presents 

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

3 Id.

4 Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).
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a question of subject matter jurisdiction, we address it as a 

threshold issue. 5

[5,6] Through the STCA, the Nebraska Legislature has 

enacted a limited waiver of the State’s sovereign immunity 

with respect to some, but not all, types of tort claims. 6 The 

STCA contains specific exceptions to the waiver of sovereign immunity. As relevant here, the intentional tort exception in § 81-8,219(4) provides that sovereign immunity is not 

waived for “[a]ny claim arising out of assault, battery, false 

imprisonment, false arrest, malicious prosecution, abuse of 

process, libel, slander, or interference with contract rights . . 

. .” Because the language of this exception is nearly identical 

under both Neb. Rev. Stat. § 13-910(7) (Cum. Supp. 2020) 

of the Political Subdivisions Tort Claims Act (PSTCA) and 

§ 81-8,219(4) of the STCA, we have applied cases construing 

the exception under the PSTCA to cases under the STCA, and 

vice versa. 7

Our cases construing and applying the intentional tort exception have consistently barred claims like the one alleged by 

Williams. In Moser v. State,

 8 we applied the intentional tort 

exception to bar a negligence claim brought by the estate of 

a man who was fatally assaulted by a cellmate. We concluded 

that the claim that prison officials had negligently doublebunked the two inmates arose out of the assault and thus fell 

within the STCA’s exception in § 81-8,219(4) for “[a]ny claim 

arising out of assault.”

In Edwards v. Douglas County,

 9 we applied that same exception to bar a claim brought by a woman who was held hostage 

and sexually assaulted by a former boyfriend. The woman 

5 See Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 

(2020).

6 See Moser v. State, supra note 2.

7 Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).

8 Moser v. State, supra note 2.

9 Edwards v. Douglas County, supra note 7.
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alleged that the county was negligent in its handling of a series 

of calls to the 911 emergency dispatch service, which led to a 

delay in responding, and was therefore liable. We rejected that 

assertion, noting that no matter how the negligence claim was 

restated, it arose out of the underlying assault and fell within 

the intentional tort exception of the PSTCA.

In Britton v. City of Crawford,

 10 a burglary suspect was shot 

and killed during a standoff with police. The suspect’s personal 

representative filed a claim against the city, alleging that law 

enforcement was negligent in its tactics. We concluded that the 

claim was barred by the intentional tort exception. We reasoned 

that the exception not only bars claims for assault and battery, 

but bars claims arising out of an assault and battery.

For his claim, Williams’ complaint alleges that the State negligently failed to separate Williams from Armendariz and his 

supporters. But the injury and damages Williams alleges plainly 

arose from Williams’ preemptive assault on Armendariz, from 

the retaliatory assault on Williams, and from Williams’ fear of 

a potential assault on him by Armendariz. We therefore conclude that Williams’ negligence claim against the State is one 

which arose from an assault, is barred by the intentional tort 

exception to the State’s waiver of sovereign immunity under 

the STCA, and was properly dismissed by the district court.

Leave to Amend.

Williams next argues that although his claim for negligence 

was dismissed, the district court erred when it denied him 

leave to amend his complaint to allege, inter alia, negligent 

infliction of emotional distress as a separate theory of recovery. Although Williams did not offer a proposed amendment to 

the district court, the parties discussed emotional damages at 

the hearing. Williams suggested he would make his complaint 

more specific and offer additional facts. However, the district 

court found that any such amendment would be futile because 

it would also arise out of “multiple layers of assault/battery” 

10 Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
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and consequently be barred by sovereign immunity under 

§ 81-8,219(4).

[7,8] When a court grants a motion to dismiss, a party should 

be given leave to amend absent undue delay, bad faith, unfair 

prejudice, or futility of amendment. 11 But leave should not 

be granted when it is clear that the defect cannot be cured by 

amendment. 12 Considering the question of whether an amendment is futile, we have said: “[W]here leave to amend is sought 

‘before discovery is complete and before a motion for summary judgment has been filed . . . [l]eave to amend . . . should 

be denied as futile . . .’” only if the proposed amendment 

cannot withstand a motion to dismiss under Neb. Ct. R. Pldg. 

§ 6-1112(b)(6). 13 We apply this reasoning to dismissal for lack 

of jurisdiction. 14

Williams’ proffered amendments, including allegations of 

negligent infliction of emotional distress, cannot withstand a 

motion to dismiss. Like his other negligence allegations discussed above, recasting his claim as one for negligent infliction 

of emotional distress does not change the fact that the injury 

arose out of one or both of the assaults discussed above. We 

have previously rejected “semantic recasting of events” to 

“circumvent the assault and battery exemption through ‘artful 

pleading.’” 15 Williams’ complaint was futile under the STCA 

intentional tort exception, § 81-8,219(4), and we find no error 

in the district court’s denial of leave to amend.

11 See, Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018); 

Bailey v. First Nat. Bank of Chadron, 16 Neb. App. 153, 741 N.W.2d 184 

(2007).

12 Id.

13 Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 16, 899 N.W.2d 227, 

238 (2017).

14 See Bailey v. First Nat. Bank of Chadron, supra note 11.

15 Edwards v. Douglas County, supra note 7, 308 Neb. at 279, 953 N.W.2d 

at 757. See, Moser v. State, supra note 2; Jill B. & Travis B. v. State, 297 

Neb. 57, 899 N.W.2d 241 (2017) (citing JBP Acquisitions, LP v. U.S. ex 

rel. F.D.I.C., 224 F.3d 1260 (11th Cir. 2000)).
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Sequence of Decisions.

[9] Finally, Williams claims that the district court made a 

reversible procedural error because its order addressed the 

State’s motion to dismiss before addressing Williams’ motion to 

amend the complaint. We have stated that ordinarily, a district 

court must consider and rule on a pending motion to amend 

before ruling on a motion to dismiss. 16 However, here, subject 

matter jurisdiction was at issue under § 81-8,219(4), and the 

district court was first required to determine the applicable 

law to resolve both motions. The court effectively decided that 

both the existing and proposed complaints sound in negligence 

and that amendment is futile due to § 81-8,219(4) because the 

assaults are foundational to all of Williams’ allegations and 

proposed amendments. Here, the district court’s decision to 

decide the jurisdictional and amendment issues together was 

not error.

We briefly address the dissent, but only to point out that it 

offers nothing new to our jurisprudence on the intentional tort 

exception. The majority and dissenting opinions in Moser 17 and 

Edwards 18 exhaustively addressed the relevant issues of sovereign immunity and statutory construction. In those cases, the 

majority explained this court’s precedent construing the exception to apply whenever a tort claim against the State arises 

from an assault. The majority also explained why, in Moser, 

this court overruled the only case decided in the past 20 years 

which had departed from such precedent.

In both Moser and Edwards, the dissent advanced a contrary 

interpretation of the statutory exception, which would immunize the State from tort claims arising from assaults committed 

by state employees, but would allow the State to be sued for 

assaults committed by someone other than a state employee. 

In response to the majority and dissenting opinions in Moser

16 See Eadie v. Leise Properties, supra note 11.

17 Moser v. State, supra note 2.

18 Edwards v. Douglas County, supra note 7.
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and Edwards, the Legislature has begun considering proposed 

amendments to the statutory language. That public policy 

debate in the Legislature is ongoing, and this court should 

allow it to develop unencumbered by judicial rhetoric urging 

any particular legislative outcome.

CONCLUSION

The district court correctly dismissed Williams’ negligence 

claim against the State because it arose out of an assault and 

thus was barred by the intentional tort exception. Further, the 

district court did not abuse its discretion in denying Williams 

leave to amend the complaint, because such amendments 

would be futile. Accordingly, we affirm the judgment of the 

district court.

Affirmed.

Miller-Lerman, J., dissenting.

For all of the reasons explained in my dissents in Moser 

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

v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021), I 

respectfully disagree with the majority’s opinion that a negligence claim is barred by sovereign immunity if there is an 

assault by anyone anywhere in the picture. In this case, the 

authorities knowingly placed Cameron Williams and the killer 

of Williams’ brother, Jonathan Armendariz, in the same housing unit in contravention of the safety objectives of the “‘keep 

separate’” list. Assaults by inmates later ensued. Even though 

the State authorities were indifferent to their actual knowledge of the risk of such placement, they are immune from suit 

under Moser and Edwards. This is how it works under current Nebraska jurisprudence: State actors can be dangerously 

negligent with impunity and immunity if a nonstate actor later 

perpetrates an expected assault.

Regarding his claims, Williams’ complaint alleges that 

despite every effort on his part to warn the proper officials 

that Armendariz posed a serious threat to his safety, numerous 
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acts of negligence placed him in serious danger, causing emotional and ultimately physical harm. According to the complaint, the State failed to follow its safety procedures and 

negligently handled inmate safety with the result that Williams 

and Armendariz came into contact at the Tecumseh State 

Correctional Institution. Later, lax security by State officials 

at the Nebraska State Penitentiary allowed assailants tied to 

Armendariz to enter Williams’ cell and stab him.

Although Williams may have a heavy burden in being able 

to prove negligence by the State, in my view, he has alleged 

sufficient facts to survive a motion to dismiss. Thus, without 

opining on the strength of Williams’ negligence claims and 

ignoring whether Williams is a compelling plaintiff, I wish to 

return to the majority’s continued expansion of the intentional 

tort exception to the State’s waiver of sovereign immunity 

under both Neb. Rev. Stat. § 13-910(7) (Cum. Supp. 2020) of 

the Political Subdivision Tort Claims Act (PSTCA) and Neb. 

Rev. Stat. § 81-8,219(4) (Cum. Supp. 2020) of the State Tort 

Claims Act (STCA).

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). As I 

explained in Moser, supra, and in Edwards, supra, and repeat 

again today, the majority continues to refuse to follow U.S. 

Supreme Court precedent. In my analysis which follows are 

excerpts of my dissents in Moser, supra, and Edwards, supra, 

without citation, discussing the viability of claims based on 

antecedent negligent acts by the State occurring before an 

assault or battery, and why such negligence can be considered 

a viable “claim” stated.

Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2021), 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 
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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 § 81-8,219(4) and its counterpart § 13-910(7) in the context 

of the STCA and PSTCA of which they are respectively a part, 

including the definition of “claim” in § 81-8,219(4) and similarly 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 State is subject to suit in this case.

The Nebraska Statute and the Federal Statute 

Should Be Read the Same Way.

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

majority reasons that the State’s earlier negligence “claim” 

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 by the U.S. 

Supreme Court in Sheridan, supra. But, as I explained in my 

dissents in Moser, supra, and Edwards v. Douglas County, 308 

Neb. 259, 953 N.W.2d 744 (2021), the federal and Nebraska 

interpretation schemes are the same, i.e., read the waiver of 

immunity strictly and the exceptions thereto broadly, and therefore, one should expect the same result. The Moser majority, 

however, chose to ignore the wisdom of the U.S. Supreme 

Court precedent and insisted that Nebraska should read the 

same language differently and that this reading is what the 

Nebraska Legislature intended. I respectfully disagree.

In my Moser and Edwards dissents, 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 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 
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(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 [v. State], 305 Neb. [111,] 

122, 939 N.W.2d [354,] 361 [(2020)] (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.

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 
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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). Accord Edwards, supra

(Miller-Lerman, J., dissenting).

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

exception yet again through erroneous 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 the Intentional Tort of Assault 

Committed by Governmental Employees But Not 

to the Intentional Tort of Assault Committed 

by Nongovernmental Assailants.

In the very text of the PSTCA and STCA statutes, 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 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 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. See, e.g., Britton v. City of Crawford, 282 Neb. 374, 

803 N.W.2d 508 (2011) (concluding that police officers who 

shot victim committed intentional battery and were immune). 

But if the governmental employee commits a nonassault act of 
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Cite as 310 Neb. 588

negligence, the governmental entity cannot receive immunity 

based on the assault exception where the assault was committed later by a random individual who is not a governmental employee.

The Nebraska statutes’ general waiver of immunity applies 

only to “tort claims” of its employees. See Neb. Rev. Stat. 

§§ 81-8,210(4) (Reissue 2014) and 13-902 (Reissue 2012). 

For example, the types of claims covered by the STCA waiver 

of immunity are defined in § 81-8,210(4), where “claim” 

is defined:

Tort claim means any claim against the State of Nebraska 

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 state, while acting within the scope of his or her 

office or employment, under circumstances in which the 

state, if a private person, would be liable to the claimant 

for such damage, loss, injury, or death . . . .

(Emphasis supplied.) Thus, under § 81-8,210(4), a “claim” 

is an “act or omission” of an “employee” of the State. An 

“[E]mployee,” as defined under § 81-8,210(3), is “any one or 

more officers or employees of the state or any state agency and 

shall include duly appointed members of boards or commissions when they are acting in their official capacity.”

The intentional tort exception on which the majority relies 

is found in § 81-8,219(4) and provides that the STCA shall not 

apply to “Any claim [defined in § 81-8,210(4) as a negligent or 

wrongful act or omission by a governmental employee] arising 

out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contract rights.” (Emphasis supplied.) 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 
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WILLIAMS v. STATE

Cite as 310 Neb. 588

not provide the basis for a claim under the FTCA [or the 

STCA and 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, § 81-8,210(4), which is omitted 

from the majority’s analysis, states that “claim” shall mean 

“negligent or wrongful act or omission of any employee of 

the state.” (Emphasis supplied.) Under the STCA, 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 intentional tort exception for “[a]ny claim arising out 

of assault” in § 81-8,219(4) (emphasis supplied) by definition 

plainly means that a “negligent or wrongful act or omission 

of any employee of the state” of the kind described will be 

excepted, see § 81-8,210(4). An assault by an inmate is not 

a “claim.”

As I stated previously:

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

2449, 101 L. Ed. 2d 352 (1988), where liability against 

the government was not precluded, the Court relied on 

two cases which involved assaults by inmates rather 

than by governmental employees. Both cases alleged 

negligence by federal employees by failing to prevent 

the assault that caused injury: United States v. Muniz, 

374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963) 

(allowing 12 inmates to gather to beat up one inmate, 

the plaintiff), and Panella v. United States, 216 F.2d 622 

(2d Cir. 1954). The Sheridan Court agreed with Judge 

(later Justice) Harlan’s reasoning in Panella based on 

statutory interpretation to the effect that the intentional 

tort exception only applied to claims already authorized 

by the waiver of sovereign immunity, that is, to claims 
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WILLIAMS v. STATE

Cite as 310 Neb. 588

involving torts committed by governmental employees. In 

Nebraska, that concept is found in § 81-8,210(4), which 

provides that the claims to which sovereign immunity is 

waived are “the negligent or wrongful act or omission of 

any employees of the [S]tate.” Contrary to § 81-8,210(4), 

the majority’s reasoning assumes that the waiver of the 

State’s immunity includes a claim against the State under 

the [STCA] based solely on an inmate’s assault of another 

inmate. But there is no such cognizable claim under the 

[STCA], so one cannot logically apply an exception to a 

nonexistent claim. See Sheridan, supra. 

Moser v. State, 307 Neb. 18, 44-45, 948 N.W.2d 194, 211 

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

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 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 opinion of Edwards v. Douglas County, 308 Neb. 

259, 953 N.W.2d 744 (2021)—on which the majority relies 

in this case—took, as I have previously observed, a lengthy 

excursion in statutory interpretation but tellingly omitted the 

controlling statutory text defining “claim” and the context to 

which exceptions are applied.

So in the instant case, referring to the complaint, I ask: 

What is the alleged wrongful act of the State employees 

which forms the basis for the “claim”? Williams’ “claim” 
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WILLIAMS v. STATE

Cite as 310 Neb. 588

against the State is based on the alleged negligent acts of State 

employees who, knowing of the safety risk and in contravention of the “keep separate” list, placed Williams and the killer 

of his brother in the same housing unit. The claim is based 

on what State employees did in the course of their employment, and no one is claiming in this case that a State employee 

assaulted Williams. The “claim” was fait accompli before any 

assaults. The claim did not arise out of the assault; the assault 

is an intentional tort, but the prior negligence claim is independent of the intentional tort. Nevertheless, the majority persists 

in following Moser and Edwards. As in Moser, the plaintiff 

alleges that negligence was committed by a governmental 

entity and the assault is the subsequent injury or event. In my 

view, the majority continues to get it backwards; it reasons that 

the later “assault” which is listed in § 81-8,219(4) led to the 

earlier negligence claim.

What if Armendariz or his associates stole or damaged 

Williams’ property found in his cell after the authorities ignored 

the “keep separate” list? Stealing is not listed as an excepted 

act in § 81-8,219(4). Would the majority reason that the claim 

of negligently failing to adhere to the safety objectives of 

the “keep separate” list arose from the subsequent theft and, 

because theft is not on the list of § 81-8,219(4), that the State is 

not immune and remains subject to suit? That is, in the majority’s view, the Legislature, in enacting § 81-8,219(4), believed 

that whether the State can be sued for its earlier negligence 

depends on the fortuitous nature of the crime committed later 

by the nongovernmental employee. The majority’s reasoning is 

neither warranted by statutory text nor sensible.

Referring to the language and purpose of § 81-8,219(4), I 

ask: Should a government’s liability for its earlier negligent 

act depend on the type of crime a nongovernmental third party 

later commits? Does that make the government’s act nontortious? What is the incentive for adhering to inmate safety 

precautions if failure to do so can be obliterated by the later 

criminal act of a nongovernmental third party? Is the reading 

of the statute by the majority what the Legislature intended?
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WILLIAMS v. STATE

Cite as 310 Neb. 588

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

if possible, 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), and we 

should also give the STCA a sensible reading. With the foregoing in mind, I respectfully believe that the interpretation by the 

majority of the intentional tort exception in the STCA 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 majority’s reading strays from the text of § 81-8,219(4), 

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 § 81-8,219(4), 

and strays from the fact the Legislature since 2007 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). I respectfully disagree with the majority’s description 

of its foray in Moser v. State, 307 Neb. 18, 948 N.W.2d 194 

(2020), in 2020 as “settled precedent.”

As I stated in my dissent in Moser:

The Sheridan [v. United States, 487 U.S. 392, 108 S. 

Ct. 2449, 101 L. Ed. 2d 352 (1988),] Court held that 

“in at least some situations[,] the fact that an injury was 

directly caused by an assault or battery will not preclude 

liability against the Government for negligently allowing the assault to occur.” 487 U.S. at 398. Contrary to 

the majority’s view to the effect that the State’s alleged 

negligence arises from the assault, the roots of the assault 

lie in the State’s own alleged negligence. So it would be 
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WILLIAMS v. STATE

Cite as 310 Neb. 588

contrary to the language of the [STCA] and unsound to 

afford immunity to an alleged breach of duty by a governmental entity because an intervening event, the very 

anticipation of which made that governmental entity’s 

conduct negligent, has brought about the expected harm. 

Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986). 

307 Neb. at 44, 948 N.W.2d at 211 (Miller-Lerman, J., 

dissenting).

The Consideration of the Legislature Is Invited.

After having judicially expanded the statutory intentional 

tort exception, the majority in Edwards v. Douglas County, 308 

Neb. 259, 953 N.W.2d 744 (2021), found itself in the awkward 

position of entreating the Legislature to consider restoration 

of the intentional tort assault exception to the status quo ante 

Moser. E.g., see 2021 Neb. Laws, L.B. 54, pending in the 

Legislature. The majority again today refers this matter to the 

Legislature. I too welcome consideration by the Legislature.

The majority view developed in Moser, in Edwards, and 

again today has broad consequences. In this case, the State 

allegedly violated the “keep separate” list designed to keep 

inmates separated and safe. I respectfully dissent from the 

majority’s reasoning in Moser, Edwards, and the instant case. 

Under the majority’s reasoning, if the State negligently violates 

a “keep separate” directive effectively promoting a cage match 

between inmates and the expected assault ensues, the State is 

immune from suit; I dissent.