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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

Amie L. Rutledge, appellant, v. City of 

Kimball, a political subdivision of 

the State of Nebraska, appellee.

___ N.W.2d ___

Filed December 6, 2019. No. S-18-924.

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. Political Subdivisions Tort Claims Act. Whether the allegations made 

by a plaintiff present a claim that is precluded by exemptions set forth 

in the Political Subdivisions Tort Claims Act is a question of law.

3. Political Subdivisions Tort Claims Act: Appeal and Error. An 

appellate court has an obligation to reach its conclusion on whether a 

claim is precluded by exemptions set forth in the Political Subdivisions 

Tort Claims Act independent from the conclusion reached by the 

trial court.

4. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort 

Claims Act governs claims made against a political subdivision when 

the claim is based upon acts or omissions of an employee occurring 

within the scope of employment.

5. Political Subdivisions Tort Claims Act: Immunity: Waiver. The 

Political Subdivisions Tort Claims Act allows a limited waiver of a 

political subdivision’s sovereign immunity with respect to certain, but 

not all, types of tort actions.

6. Political Subdivisions Tort Claims Act: Immunity: Waiver: Intent: 

Words and Phrases. Neb. Rev. Stat. § 13-910 (Reissue 2012) sets forth 

specific claims that are exempt from the waiver of sovereign immunity, 

including any claim arising out of assault, battery, false arrest, false 

imprisonment, malicious prosecution, abuse of process, libel, slander, 

misrepresentation, deceit, or interference with contract rights. This is 

sometimes referred to as the “intentional torts exception.”

Nebraska Supreme Court Online Library

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

12/06/2019 09:06 AM CST
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

7. Tort Claims Act: Public Officers and Employees: Immunity: Intent: 

Tort-feasors. Under the intentional torts exception, the State is immune 

from suit when the tort claim is based on the mere fact of government 

employment (such as a respondeat superior claim) or on the employment relationship between the intentional tort-feasor and the government 

(such as a negligent supervision or negligent hiring claim).

8. Political Subdivisions Tort Claims Act: Negligence: Liability: 

Damages. When conduct arises out of a battery, it falls within the 

exception of Neb. Rev. Stat. § 13-910(7) (Reissue 2012), and the political subdivision is not liable for damages resulting from the battery, even 

when the pleaded conduct is characterized or framed as negligence.

9. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect 

the plaintiff from injury, a failure to discharge that duty, and damages 

proximately caused by the failure to discharge that duty.

10. Negligence. The threshold issue in any negligence action is whether the 

defendant owes a legal duty to the plaintiff.

11. Negligence: Liability. There is no duty to control the conduct of a 

third person so as to prevent him or her from causing physical harm to 

another, unless a special relation exists between the actor and the third 

person which imposes a duty upon the actor to control the third person’s conduct.

12. ____: ____. When a special relationship exists, an actor in that relationship owes a duty of reasonable care to third parties with regard to risks 

posed by the other that arise within the scope of the relationship.

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

construed in favor of the sovereign and against the waiver.

Appeal from the District Court for Kimball County: Derek 

C. Weimer, Judge. Affirmed.

James R. Korth, of Reynolds, Korth & Samuelson, P.C., 

L.L.O., for appellant.

Steven W. Olsen and Paul W. Snyder, of Simmons Olsen 

Law Firm, P.C., for appellee.

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

Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

Heavican, C.J.

INTRODUCTION

This case arose out of an alleged assault and battery perpetrated by David Ford, an employee of appellee, the City 

of Kimball, Nebraska (City). Appellant, Amie L. Rutledge, 

filed a complaint alleging the City was negligent for failing 

to supervise Ford and for failing to protect the general public 

and Rutledge from Ford when the City knew or should have 

known of Ford’s past violent behavior, violent propensities, 

and prior assaults. The district court granted the City’s motion 

to dismiss on the grounds that the claim was barred by the 

intentional torts exception to the Political Subdivisions Tort 

Claims Act (PSTCA). We affirm.

BACKGROUND

On July 26, 2013, Rutledge filed a claim with the City for 

damages incurred after its then employee, Ford, allegedly 

attacked and choked her in the Kimball City Building. On 

August 2, Rutledge also filed a complaint in the district court 

for Kimball County against Ford for assault and battery.

After her claim was denied by the City, Rutledge amended 

her complaint against Ford to add the City as an additional 

party. As noted above, Rutledge alleged the City was negligent for failing to take proper measures to supervise Ford and 

protect the general public and Rutledge when the City knew 

or should have known of Ford’s past violent behavior, violent 

propensities, and prior assaults.

The City filed a motion to dismiss, claiming Rutledge failed 

to state a claim upon which relief could be granted. On July 

8, 2014, the district court granted the City’s motion after finding the allegations against the City arose out of Ford’s alleged 

assault and battery and, thus, were exempt from application of 

the PSTCA. On September 14, 2018, Rutledge filed a motion 

to dismiss her complaint against Ford with prejudice, which 

was granted by the district court the same day.
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304 Nebraska Reports

RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

ASSIGNMENT OF ERROR

Rutledge’s sole assignment of error is that the trial court 

erred in granting the City’s motion to dismiss for failure to 

state a claim upon which relief may be granted.

STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.1

[2,3] Whether the allegations made by a plaintiff present a 

claim that is precluded by exemptions set forth in the PSTCA 

is a question of law.2 An appellate court has an obligation to 

reach its conclusion on whether a claim is precluded by exemptions set forth in the PSTCA independent from the conclusion 

reached by the trial court.3

ANALYSIS

Rutledge argues her claims are not barred by the intentional torts exception to the PSTCA, because they did not 

arise from Ford’s assault and battery, but from the City’s 

“independent duty to protect [her] from [Ford’s] foreseeable 

acts of violence.”4 The City maintains that Rutledge’s claims 

are barred by the intentional torts exception because they 

arise from an assault and battery and that Rutledge “is simply 

re-framing an injury . . . as negligence” in an attempt to avoid 

the City’s sovereign immunity.5

[4-6] The PSTCA governs claims made against a political 

subdivision when the claim is based upon acts or omissions of 

1 Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 

(2019).

2 Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).

3 Id.

4 Brief for appellant at 8.

5 Brief for appellee at 6.
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RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

an employee occurring within the scope of employment.6 The 

PSTCA allows a limited waiver of a political subdivision’s 

sovereign immunity with respect to certain, but not all, types 

of tort actions.7 Section 13-910 sets forth specific claims that 

are exempt from the waiver of sovereign immunity, including 

“[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.”8 This is sometimes referred to as the “‘intentional 

torts exception.’”9

In Johnson v. State,

10 this court analyzed the intentional 

torts exception contained in the State Tort Claims Act, which 

contains language identical to the PSTCA.11 In that case, an 

inmate filed a negligence claim against the State of Nebraska, 

the Omaha Correctional Center, and the Nebraska Department 

of Correctional Services, alleging she was sexually assaulted 

by an employee of the Department of Correctional Services 

while the employee was acting within the scope of his employment. The plaintiff alleged the defendants were negligent in 

(1) violating Nebraska jail standards with respect to the housing of female inmates, (2) failing to properly supervise their 

employees, (3) failing to properly hire employees, (4) failing 

to properly maintain the Omaha Correctional Center, and (5) 

failing to discipline the employee who allegedly perpetrated 

the sexual assault. The district court dismissed the plaintiff’s 

petition after finding her claims were barred by the intentional 

torts exception because they arose out of an assault. This court 

6 See Neb. Rev. Stat. § 13-910(1) to (12) (Reissue 2012).

7 City of Lincoln v. County of Lancaster, 297 Neb. 256, 898 N.W.2d 374 

(2017).

8 See, id; § 13-910(7).

9 See City of Lincoln v. County of Lancaster, supra note 7, 297 Neb. at 260, 

898 N.W.2d at 378.

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

11 See Neb. Rev. Stat. § 81-8,219(4) (Reissue 2014).
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RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

affirmed the judgment of the district court. In doing so, we 

adopted Justice Kennedy’s concurrence in the U.S. Supreme 

Court case Sheridan v. United States.

12

When addressing the intentional torts exception to the 

Federal Tort Claims Act, Justice Kennedy’s concurrence recognized that an injury could arise from more than one cause 

and stated:

“To determine whether a claim arises from an intentional 

assault or battery and is therefore barred by the exception, 

a court must ascertain whether the alleged negligence was 

the breach of a duty to select or supervise the employeetortfeasor or the breach of some separate duty independent from the employment relation. . . . 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 exception.”13

[7] To summarize, Johnson held that under the intentional 

torts exception, the State is immune from suit when the tort 

claim “is based on the mere fact of government employment 

(such as a respondeat superior claim) or on the employment 

relationship between the intentional tort-feasor and the government (such as a negligent supervision or negligent hiring claim).”14

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

352 (1988).

13 Johnson v. State, supra note 10, 270 Neb. at 322, 700 N.W.2d at 625 

(quoting Sheridan v. United States, supra note 12 (Kennedy, J., concurring 

in judgment)).

14 Johnson v. State, supra note 10, 270 Neb. at 323, 700 N.W.2d at 625.
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RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

[8] Similarly, in Britton v. City of Crawford,

15 this court held 

that when conduct “‘aris[es] out of’ a battery,” it falls within 

the exception of § 13-910(7) and the political subdivision is not 

liable for damages resulting from the battery, even when the 

pleaded conduct is characterized or framed as negligence. In 

Britton, the personal representative of the estate of a deceased 

police shooting victim sued the City of Crawford under the 

PSTCA, alleging it was negligent in handling a standoff where 

the victim had barricaded himself. The City of Crawford filed a 

motion to dismiss the complaint on the grounds that it failed to 

state a cause of action upon which relief could be granted, and it 

argued the City of Crawford could not be held liable under the 

PSTCA, because the complaint alleged assault and battery. The 

district court granted the City of Crawford’s motion to dismiss. 

This court affirmed and held the claim was barred by the intentional torts exception because the alleged negligence was “inextricably linked” to a battery.16 We reasoned that “[w]hile other 

factors may have contributed to the situation which resulted in 

[the victim’s] death, but for the battery, there would have been 

no claim.”17

Here, Rutledge’s claim clearly arises out of a battery. 

Rutledge alleges Ford attacked and strangled her, without her 

consent, intending to cause a harmful or offensive contact 

with her.18 She further alleges the City was negligent because 

it “knew or should have known that FORD had displayed 

past violent behavior and violent propensities, including prior 

15 Britton v. City of Crawford, 282 Neb. 374, 383, 803 N.W.2d 508, 516 

(2011).

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

17 Id.

18 See Britton v. City of Crawford, supra note 15, 282 Neb. at 382, 803 N.W.2d 

at 515 (defining intentional tort of battery as “‘“an actual infliction” of an 

unconsented injury upon or unconsented contact with another’” or “‘any 

intentional, unlawful physical violence or contact inflicted on a human 

being without his consent’”).
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RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

assaults upon citizens[,] while on duty with [the] CITY” and 

“in failing to take proper measures to supervise FORD and protect the general public, specifically RUTLEDGE.” In her brief, 

Rutledge asserts her claim is not barred by the intentional torts 

exception, because it is not based on “vicarious liability, or 

for negligent supervision or negligent hiring.”19 She contends 

that “Ford’s employment status is immaterial,” yet she argues 

the City “was uniquely positioned as his employer, with full 

knowledge of the facts and circumstances of that prior violent act and subsequent control over Ford, to protect [her].”20

Rutledge further argues her negligence claim is “wholly independent” of Ford’s employment status, because it alleges the 

City was negligent for “failing to protect [her] and the public 

in general.”21

[9-12] We hold that Rutledge’s negligence claim is barred by 

the PSTCA because she cannot allege any potential source of 

duty other than Ford’s employment status. In order to prevail 

in a negligence action, a plaintiff must establish the defendant’s 

duty to protect the plaintiff from injury, a failure to discharge 

that duty, and damages proximately caused by the failure to 

discharge that duty.22 The threshold issue in any negligence 

action is whether the defendant owes a legal duty to the plaintiff.23 This court has held that there is no duty to control the 

conduct of a third person so as to prevent him or her from 

causing physical harm to another, unless “‘a special relation 

exists between the actor and the third person which imposes a 

duty upon the actor to control the third person’s conduct.’”24

19 Brief for appellant at 5.

20 Id. at 8.

21 Id. at 5,7.

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

23 Id.

24 Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 11, 899 N.W.2d 227, 

235 (2017).
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RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

When a special relationship exists, an actor in that relationship 

“‘owes a duty of reasonable care to third parties with regard 

to risks posed by the other that arise within the scope of the 

relationship.’”25 Here, there is no special relationship between 

Ford and the City—other than his employment relationship—

that could give rise to an affirmative duty to protect Rutledge 

from Ford.

At oral argument, Rutledge raised for the first time the 

theory of premises liability. She did not specifically plead 

premises liability in her complaint; however, she cited to this 

court’s holding in Doe v. Omaha Pub. Sch. Dist.26 in support of 

her argument that the City was negligent in failing to protect 

Rutledge and the general public from Ford.

In Doe, a student had been sexually assaulted by another 

student during school and the plaintiff alleged the school district breached its duty to take reasonable steps to prevent foreseeable violence from occurring on its premises. We held that 

the intentional torts exception did not clearly indicate the claim 

was barred, because the alleged breach was of an independent 

legal duty unrelated to any possible employment relationship 

between the assailant and the school district.

The present case is easily distinguished from our holding 

in Doe. Specifically, in Doe, there was no allegation that the 

assailant was an agent or employee of the political subdivision. 

Further, the school district had an existing duty, based on its 

relationship with the student victim, to protect against harm 

when the conduct was sufficiently foreseeable.27 Here, the 

only relationship that existed was the employment relationship 

25 Id. at 12, 899 N.W.2d at 235 (quoting 2 Restatement (Third) of Torts: 

Liability for Physical and Emotional Harm § 41(a) (2012)). See, also, 

Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012); 

Bartunek v. State, 266 Neb. 454, 666 N.W.2d 435 (2003).

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

27 See id. See, also, A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 

784 N.W.2d 907 (2010).
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RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

between Ford and the City; therefore, the intentional torts 

exception preserves sovereign immunity.28

[13] Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly 

construed in favor of the sovereign and against the waiver.29

While Rutledge’s claim is characterized as one of negligence, 

no claim would exist but for Ford’s alleged battery. At oral 

argument, Rutledge conceded that there never would have been 

a lawsuit had she not been assaulted. Thus, regardless of how 

the claim is pled, Rutledge’s claim is inextricably linked to a 

battery. Accordingly, the alleged negligence falls within the 

intentional torts exception to the PSTCA and the City has not 

waived its sovereign immunity.

CONCLUSION

We conclude that Rutledge’s negligence claim arises out of 

a battery and thus is barred by the intentional torts exception to 

the PSTCA. We affirm the judgment of the district court.

Affirmed.

28 See Johnson v. State, supra note 10.

29 Patterson v. Metropolitan Util. Dist., supra note 1.

Papik, J., concurring.

I agree with the court’s determination that the City of 

Kimball is immune from Rutledge’s suit under Neb. Rev. Stat. 

§ 13-910(7) (Reissue 2012) because it arises out of a battery. I 

write separately to express concern regarding the soundness of 

the primary case upon which the plaintiff relies, Doe v. Omaha 

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

As the court notes, we held in Doe that a claim that a school 

district negligently failed to protect one student from being 

sexually assaulted by another did not “arise out of” an assault 

and thus could proceed under the Political Subdivisions Tort 

Claims Act (PSTCA). We held that the claim did not arise 

out of an assault, because the plaintiff alleged that the school 
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RUTLEDGE v. CITY OF KIMBALL

Cite as 304 Neb. 593

district breached a legal duty independent of any employment relationship between it and the assailant. We said that 

the claim was “not based upon the assault itself” and that 

the plaintiff “could not prevail merely by proving that it 

occurred.” Doe, 273 Neb. at 88, 727 N.W.2d at 456. I do not 

believe, however, that this analysis is consistent with our general principles of statutory interpretation, the particular way 

in which we have said that the PSTCA should be interpreted, 

or our case law.

We generally interpret statutes according to their plain and 

ordinary meaning. See State ex rel. Peterson v. Creative Comm. 

Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019). As we have 

observed, the use of the phrase “arising out of” in § 13-910(7) 

means that more than just claims for the listed intentional torts 

are exempted and that plaintiffs may not reframe claims that 

arise out of those intentional torts to escape the exemption. See 

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

(2011). So when does a claim “arise out of” one of the listed 

intentional torts? In a case involving identical language in the 

Federal Tort Claims Act, Justice O’Connor explained that if the 

phrase “arising out of an assault or battery” is given its ordinary 

meaning, it would cover any case in which a battery is essential 

to the claim. Sheridan v. United States, 487 U.S. 392, 108 S. 

Ct. 2449, 101 L. Ed. 2d 352 (1988) (O’Connor, J., dissenting; 

Rehnquist, C.J., and Scalia, J., join). In my view, this is correct. A claim may arise out of more than just a battery, but if 

the claim would not exist without a battery, as a matter of plain 

language, it arises out of a battery.

Even if I were not persuaded that the plain language of 

§ 13-910(7) can only be read to exempt any claim that would 

not exist without one of the intentional torts enumerated therein, 

I believe that reading should still control under our principles 

for interpreting the PSTCA. We have said that because statutes that waive sovereign immunity are to be strictly construed against waiver, exemptions from a waiver of sovereign 

immunity must be read broadly. See Stick v. City of Omaha, 
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Cite as 304 Neb. 593

289 Neb. 752, 857 N.W.2d 561 (2015). If § 13-910(7) is read 

broadly, it would certainly seem to exempt cases in which an 

assault, battery, or one of the other listed intentional torts was 

essential to the claim.

Not only is this interpretation of § 13-910(7) consistent 

with its language and our rules for interpreting the PSTCA, 

we have previously relied on this interpretation to hold that a 

claim is barred. In Britton, we held that a claim of negligence 

was barred, explaining that “but for the battery, there would 

have been no claim.” 282 Neb. at 386, 803 N.W.2d at 518. The 

court relies on similar reasoning in this case, concluding that 

Rutledge would have no claim but for the alleged battery.

It is difficult for me to reconcile the result in Doe v. Omaha 

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

the foregoing. The plaintiff in Doe clearly would not have 

had a claim if not for the assault. That, it seems to me, should 

have been the end of the matter for all the reasons discussed 

above. And yet, the plaintiff was allowed to proceed because 

there was a breach of an “independent legal duty, unrelated to 

any possible employment relationship.” Id. at 88, 727 N.W.2d 

at 456.

In this case, Rutledge attempts to argue that, as in Doe, the 

defendant breached a legal duty independent of an employment relationship. I think that the court reasonably explains 

why Rutledge did not identify and certainly did not plead facts 

demonstrating such a duty and that it is thus not necessary to 

confront the viability of Doe today. Before we rely on Doe 

again, however, I believe we should consider whether it is 

consistent with our general approach and specific decisions in 

this area.