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Jena Lambert, et al., v. Lincoln Public Schools, et al. Nebraska Discretionary Immunity
The plaintiff was dismissed from school at 3:38 PM and was met by her mother, and the two went to the playground. At about 4:00 PM, another mother and son arrived at the playground, walking the family dog. The mother asked her son to hold the leash while she cleaned up after the dog. He took the dog onto the playground, where it bit the plaintiff. When the mother attempted to help, the dog bit her. The daughter's wound required surgery.
Plaintiff sued the dog owners and the school district. They complied with the notice requirements of the state's tort claims act, and alleged that the school was negligent in failing to properly supervise and monitor the playground to enforce the "no dogs" policy.
Both the school district and the school had regulations against dogs on school grounds. The school's policy was "no dogs on school grounds," which was mentioned in the school handbook and newsletters. A sign near the playground had a red strike through an image of a dog. The principal and a teacher testified that if staff see people with dogs during school hours, they are told to remove them. However, the principal testified that this policy applied only until 3:45 PM, when the schoolday ended, and that the school did not monitor.
The trial court granted summary judgment to the school district on two grounds. First, it held that the case was barred by discretionary immunity. It also held that the school owed no duty. The plaintiff appealed to the Nebraska Supreme Court.
The high court affirmed on the grounds of discretionary immunity. "administrators, in the exercise of this discretion, decided to establish and enforce a 'no dogs' policy only during school hours and decided not to supervise the school playground area at all after students have been dismissed for the day. How to utilize staff and budget to supervise school grounds and regulate activities thereon are administrative decisions grounded in social, economic, and political policy, and they fall within the discretionary function exception."
No. S-19-620, 306 Neb. 192 (June 19, 2020).
Please see the original opinion for the court's exact language.
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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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