NE Tort Claims Act, Misrepresentation

Nebraska case law summary by Attorney Richard Clem: Tort claims act, misrepresentation.

Jill B. & Travis B. v. State. NE Tort Claims Act, Misrepresentation

The parents in this Nebraska case were interested in adopting a child. On at least three occasions, they asked a family services specialist with the state where there had been anything "sexually" in the child's past, and the specialist replied that there had not. The parents were, however, told that there had been concerns about inappropriate contact with a brother. The specialist was, however, aware of allegations that the child had been sexually abused. About five months after the placement, the parents learned that the child had sexually abused their child. They brought a lawsuit against the State of Nebraska under the tort claims act, alleging negligence. In particular, they claimed that there had been a failure to warn and negligent supervision.

The case went to trial, and the trial court ruled in favor of the state. The trial court found that the case amounted to a claim of misrepresentation. Under the State Tort Claims Act, claims for misrepresentation or deceit are specifically excluded. Therefore, the case was dismissed on the grounds of sovereign immunity. The parents appealed, and the Nebraska Supreme Court agreed to hear the case.

The high court first noted that the Tort Claims Act is to be strictly construed. It is a waiver of the state's sovereign immunity, and liability can be found only when the most express of language is used. In construing the statute, it looked to decisions of the U.S. Supreme Court construing the similar Federal Tort Claims Act. While negligence claims are generally allowed, intentional torts are not. Therefore, the court had to examine whether misrepresentation constituted negligence or an intentional tort. It noted that the essence of the claim was whether the information had been communicated, which is an intentional act.

For these reasons, the Supreme Court affirmed the trial court's ruling. In so holding, it disapproved of the earlier decision, Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003).

297 Neb. 57 (Neb. June 30, 2017).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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