Barber v. State

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
BARBER v. STATE
Cite as 316 Neb. 398
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 rea-
sonable 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 enact-
ment 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 con-
tains 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 mat-
ter 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
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BARBER v. STATE
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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 deter-
mine whether the actor ultimately could be held liable for any damage
resulting from the battery, based on the presence or absence of affirma-
tive 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 situ-
ations 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 mani-
festing 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 bat-
tery, 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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BARBER v. STATE
Cite as 316 Neb. 398
if the claim stems from, arises out of, is inextricably linked to, is essen-
tial 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 bat-
tery, 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 neg-
ligence 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 dis-
miss Barber’s complaint for lack of subject matter jurisdic-
tion 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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BARBER v. STATE
Cite as 316 Neb. 398
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 infer-
ences 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 medica-
tions, 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 con-
duct 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 dur-
ing his incarceration, against his will.
COMPLAINT
In March 2023, Barber filed what he describes as a medi-
cal 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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BARBER v. STATE
Cite as 316 Neb. 398
upholding” the IMOs and that DCS medical staff “failed to
adhere to medical standards” when determining he was men-
tally ill and dangerous.
Barber alleges that as a “proximate result of the IMO,” he
suffered physical, mental, and emotional damages. The com-
plaint also alleges the IMOs prevented him from participat-
ing 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 mon-
etary 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 uncon-
sented 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 con-
sidered 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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BARBER v. STATE
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DCS physicians’ diagnoses led to an [IMO] which pre-
vented 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 con-
tact, 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 con-
cluding 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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BARBER v. STATE
Cite as 316 Neb. 398
ANALYSIS
Before 	considering 	Barber’s 	assignment 	of 	error, 	we
briefly review the legal authority permitting states to admin-
ister 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 antipsy-
chotic 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 treat-
ment 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 cross-
examine witnesses, and (4) the opportunity to seek judicial
review of the decision under state law. The Harper Court con-
cluded 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 exemp-
tions 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 inter-
changeably. Although the same principles of sovereign immu-
nity 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 aris-
ing out of battery in Britton v. City of Crawford. 24 There,
an armed 16-year-old burglary suspect was discovered hid-
ing in a vacant building, and when law enforcement offi-
cers 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 self-
defense 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 recog-
nized the definition of battery as “any intentional, unlaw-
ful 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 uncon-
sented contact was not unlawful and thus there was no battery
for purposes of the PSTCA exemption. We rejected that argu-
ment, 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 contem-
plate 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 nec-
essary 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 affirma-
tive 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, claim-
ing 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 offi-
cers’ 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 ordinar-
ily 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 assert-
ing medical negligence under Nebraska law. Once we deter-
mine 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 mal-
practice 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 distin-
guished 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 seek-
ing 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 assert-
ing 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 antipsy-
chotic medication and that the injections were administered
against his will. 48 Under Nebraska law, providing medical
treatment without express or implied consent constitutes a bat-
tery, not medical malpractice. 49
Other courts have rejected arguments similar to that pre-
sented 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 exemp-
tion 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 suc-
cessfully 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 argu-
ment that he has asserted only a medical malpractice claim.
Having determined that the nature of Barber’s claim is a bat-
tery, 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 exemp-
tion 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 pur-
poses 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 aris-
ing 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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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 situ-
ation 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, conse-
quently, 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 incorpo-
rated 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.