Joshua M. v. State

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
JOSHUA M. v. STATE
Cite as 316 Neb. 446
Joshua M. et al., appellants, v.
State of Nebraska et al., appellees.
___ N.W.3d ___
Filed May 3, 2024. 	No. S-21-1037.
1. Tort Claims Act: Appeal and Error. Whether a claim is precluded by
an exemption under the State Tort Claims Act presents a question of law.
2. Jurisdiction. Subject matter jurisdiction is a question of law.
3. ____. When a jurisdictional question does not involve a factual dispute,
the issue is a matter of law.
4. Judgments: Appeal and Error. An appellate court reviews questions of
law independently of the lower court’s conclusion.
5. Immunity. Under the common-law doctrine of sovereign immunity,
a state’s immunity from suit is recognized as a fundamental aspect
of sovereignty.
6. Jurisdiction: Immunity. The doctrine of sovereign immunity is, by its
nature, jurisdictional, and presents a question of subject matter jurisdic-
tion that courts cannot ignore.
7. Jurisdiction. Questions regarding a court’s subject matter jurisdic-
tion should be resolved as a threshold matter before an examination of
the merits.
8. Constitutional Law: Legislature: Immunity. The sovereign immunity
of the State and its political subdivisions is preserved in Neb. Const.
art. V, § 22, and this constitutional provision permits the State to lay its
sovereignty aside and consent to be sued on such terms and conditions
as the Legislature may prescribe.
9. ____: ____: ____. Because Neb. Const. art. V, § 22, is not self-
executing, no suit may be maintained against the State or its political
subdivisions unless the Legislature, by law, has so provided.
10. Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action
waiving sovereign immunity, a trial court lacks subject matter jurisdic-
tion over an action against the State.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:39 AM CDT

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JOSHUA M. v. STATE
Cite as 316 Neb. 446
11. Constitutional Law: Legislature: Claims. The authority to determine
which claims can be brought against the State, and which cannot, is
a power the Nebraska Constitution expressly placed in the legisla-
tive branch.
12. Courts: Immunity: Waiver: Equity. The judiciary does not have
the power to waive sovereign immunity regardless of the equities of
the case.
13. Political Subdivisions Tort Claims Act: Tort Claims Act: Legislature:
Immunity: Waiver. Through the enactment of the State Tort Claims
Act and the Political Subdivisions Tort Claims Act, the Legislature has
waived sovereign immunity with respect to some, but not all, types of
tort claims.
14. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
Waiver. Both the State Tort Claims Act and the Political Subdivisions
Tort Claims Act contain exemptions to the limited waiver of sovereign
immunity, and those exemptions describe the types of tort claims for
which the State and its political subdivisions retain sovereign immunity.
15. Political Subdivisions Tort Claims Act: Tort Claims Act: Dismissal
and Nonsuit: Jurisdiction: Immunity: Waiver. When a claim falls
within an exemption under the State Tort Claims Act or the Political
Subdivisions 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 matter jurisdiction.
16. Statutes: Immunity: Waiver. Statutes purporting to waive the protec-
tion of sovereign immunity are to be strictly construed in favor of the
sovereign and against waiver.
17. Immunity: Waiver. In order to strictly construe statutes against a
waiver of sovereign immunity, courts must read statutory exemptions
from a waiver of sovereign immunity broadly.
18. Political Subdivisions Tort Claims Act: Tort Claims Act: Assault.
Because the exemption for claims arising out of assault or battery is the
same under the State Tort Claims Act and the Political Subdivisions Tort
Claims Act, cases construing the State Tort Claims act exemption are
applicable to cases construing the Political Subdivisions Tort Claims Act
exemption and vice versa.
19. ____: ____: ____. Under the State Tort Claims Act and the Political
Subdivisions Tort Claims Act, a plaintiff cannot avoid the reach of the
exemption for any claim arising out of assault or battery by framing his
or her complaint in terms of negligent failure to prevent the assault and
battery. The exemption does not merely bar claims for assault or battery;
in sweeping language, it excludes any claim arising out of assault or
battery.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
JOSHUA M. v. STATE
Cite as 316 Neb. 446
20. ____: ____: ____. Under the State Tort Claims Act and the Political
Subdivisions Tort Claims Act, the exemption for claims arising out of
assault or battery applies whenever an assault is essential to the claim,
and it bars claims against the government which sound in negligence but
stem from an assault or battery.
21. ____: ____: ____. Under the State Tort Claims Act and the Political
Subdivisions Tort Claims Act, the exemption for claims arising out of
assault or battery encompasses claims that would not exist without an
assault or battery and claims that are inextricably linked to an assault or
battery.
22. Political Subdivisions Tort Claims Act: Tort Claims Act: Assault:
Damages. No matter how a tort claim against the government is framed,
and regardless of the assailant’s employment status, when a claim
seeks to recover damages for personal injury or death stemming from
an assault or battery, it necessarily arises out of assault or battery and
is barred by the exemption for claims arising out of assault or battery
under the State Tort Claims Act and the Political Subdivisions Tort
Claims Act.
Appeal from the District Court for Richardson County:
Julie D. Smith, Judge. Affirmed in part, and in part vacated
and remanded with directions.
Diana J. Vogt and James L. Schneider, of Sherrets, Bruno &
Vogt, L.L.C., for appellants.
Douglas J. Peterson, Attorney General, and Christopher A.
Felts for appellee State of Nebraska.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik,
JJ., and Strong and Smith, District Judges.
Per Curiam.
This is an appeal under the State Tort Claims Act (STCA), 1
and the threshold jurisdictional issue is whether the plain-
tiffs’ claims fall within the scope of the STCA’s exemption
for “[a]ny claim arising out of assault [or] battery” 2 and thus
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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Nebraska Supreme Court Advance Sheets
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JOSHUA M. v. STATE
Cite as 316 Neb. 446
are barred by the State’s sovereign immunity. Our cases have
sometimes been inconsistent in construing and applying this
exemption, and this appeal highlights inconsistency between
our 1977 opinion in Koepf v. County of York 3 and our 2020
opinion in Moser v. State. 4 We discuss the reasoning and hold-
ing of both cases later in our analysis.
The facts of this case are undeniably tragic. In 2015, three
siblings who spent much of their youth in the Nebraska foster
care system filed suit against their former foster parent for
intentional assault and battery, alleging the foster parent physi-
cally and sexually assaulted them. In the same action, the sib-
lings sued the State of Nebraska and the Nebraska Department
of Health and Human Services (collectively DHHS) under the
STCA, alleging DHHS was negligent in recommending and
supervising their placement and in failing to remove them
from such placement when DHHS knew or should have known
they were being physically and sexually abused. In presenting
these tort claims against DHHS, the siblings generally relied
on the reasoning and holding of Koepf.
In 2021, the action was tried to the bench. After the siblings
presented their case in chief, DHHS moved for a directed ver-
dict on the ground of sovereign immunity, relying on Moser to
argue that the siblings’ claims fell within the STCA’s exemp-
tion for “[a]ny claim arising out of assault [or] battery.” 5 The
district court rejected DHHS’ jurisdictional argument based
on Moser and concluded that Koepf remained the controlling
law as to the siblings’ tort claims against DHHS.
At the conclusion of trial, the court entered judgment in
favor of the siblings and against their former foster parent in
the collective sum of $2.9 million. But the court found the
evidence was insufficient to prove DHHS breached its duty
of care to the siblings and thus entered judgment in favor
3 Koepf v. County of York, 198 Neb. 67, 251 N.W.2d 866 (1977).
4 Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020).
5 § 81-8,219(4).

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JOSHUA M. v. STATE
Cite as 316 Neb. 446
of DHHS. The siblings appeal, challenging only the entry of
judgment in favor of DHHS.
We moved this appeal to our docket on our own motion to
address the tension between Koepf and Moser as it regards the
proper construction and application of the STCA exemption
for “[a]ny claim arising out of assault [or] battery.” 6 As we
will explain, the siblings’ negligence claims against DHHS
fall squarely within the STCA’s exemption for claims aris-
ing out of assault or battery and thus are barred by sovereign
immunity. We must therefore vacate the judgment of the dis-
trict court as to DHHS and remand the cause with directions
to dismiss that defendant only. In all other respects, the dis-
trict court’s judgment is affirmed.
I. BACKGROUND
Siblings Joshua M., Sydnie M., and Abigail S. were born
between 1992 and 1995. In September 1995, their biologi-
cal parents were involved in a serious car accident that left
their mother severely disabled and unable to care for them.
At the time, their father was deemed an unfit parent due to
active alcoholism and instability in both employment and
housing. As such, the county attorney of Richardson County,
Nebraska, filed petitions alleging the siblings were within
the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015).
The siblings were adjudicated and became wards of DHHS in
January 1996.
Joshua and Sydnie, who were toddlers at the time, were
placed in foster care with Miles Ruch, Sr., and his wife, Carol
Ruch. Abigail, then an infant, was initially placed in a different
foster home, but joined her siblings in the Ruch home in June
1996. From 1996 to 1999, the siblings resided with the Ruchs
as foster children. The Ruchs were appointed legal guard-
ians for the siblings in 1999, and the siblings resided with the
Ruchs under the guardianship until 2004.
6 Id.

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Nebraska Supreme Court Advance Sheets
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JOSHUA M. v. STATE
Cite as 316 Neb. 446
On the record before us, it is generally undisputed that
from 1996 to 2004, all three siblings were subjected to fre-
quent physical and sexual abuse in the Ruch home. There
was conflicting evidence at trial as to whether such abuse
was reported to DHHS and, if so, how DHHS responded. But
the parties generally agree that in August 2004, Sydnie and
Abigail each told Carol they had been sexually abused by
Miles. Carol confronted Miles, who later confessed to police
that he had sexually abused Sydnie and Abigail. Miles was
arrested and charged with multiple counts of sexual assault of
a child. The record suggests he was convicted pursuant to a
plea agreement, has completed his sentences, and is required
to register as a sex offender.
After Miles’ arrest, the siblings remained in Carol’s custody
under the guardianship for several more months. Eventually,
in response to reports that Carol had physically assaulted and
injured Joshua, the Ruchs resigned as the siblings’ guardians
and the guardianship was terminated. The siblings were then
placed back into DHHS custody.
In July 2005, based in part on recommendations from
DHHS, the siblings were returned to the custody of their bio-
logical father. Several months later, their father was arrested
for sexually assaulting Sydnie and Abigail.
1. Complaint and Motions
for Summary Judgment
In December 2015, the siblings filed this tort action against
Miles and DHHS. The operative complaint was styled as two
causes of action—one against Miles and the other against
DHHS. The siblings’ biological father was not named as a
defendant in this lawsuit.
As against Miles, the operative complaint asserted a claim
of intentional assault and battery based on allegations that
Miles repeatedly “physically and sexually abused” the siblings
while they lived in the Ruch home between September 1995
and December 2004. Although Carol was deceased when the

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
JOSHUA M. v. STATE
Cite as 316 Neb. 446
lawsuit was filed, the operative complaint alleged that she
“participated in and/or [was] aware of the abuse perpetrated
by [Miles].”
As against DHHS, the operative complaint asserted a claim
of negligence based on allegations that DHHS knew or should
have known the siblings were being physically and sexu-
ally abused in the Ruch home and were likely to be sexually
abused in their biological father’s home, but that DHHS failed
to protect the siblings from such abuse. The operative com-
plaint alleged that DHHS breached its duty to protect the
siblings from harm “while in foster care or other placement”
by failing to properly screen and monitor their placement, by
failing to remove them from the Ruch home, and by allowing
them to be reunified with their biological father.
The operative complaint alleged that “[a]s a result of the
assault and battery” by Miles, the siblings sustained damages,
including physical and mental suffering and the cost of medical
care and counseling. The complaint alleged identical damages
as a result of DHHS’ negligence.
Miles did not file a responsive pleading after being served.
DHHS filed an answer, denying the allegations of negligence
and alleging that the tort claims against DHHS were barred by
the doctrine of sovereign immunity.
The siblings and DHHS filed competing motions for sum-
mary judgment, which the court granted in part and overruled
in part. Because no challenge has been raised on appeal to the
court’s rulings on those motions, we do not elaborate further
except to note that the court’s rulings on summary judgment
identified many disputed factual issues that remained for trial.
2. Trial and Motion for
Directed Verdict
A bench trial was held over the course of several days
in June 2021. All three siblings testified about the frequent
physical and sexual abuse they endured in the Ruch home
and how that abuse affected them physically and emotionally.

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Nebraska Supreme Court Advance Sheets
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JOSHUA M. v. STATE
Cite as 316 Neb. 446
The siblings also adduced testimony from a former DHHS
employee who was involved in supervising their case and
from an expert who testified about the effects of physical
and sexual abuse in children generally, and in the siblings
specifically.
Joshua testified that when Miles was not traveling for work,
Miles would beat the siblings on a daily basis. If the siblings
threatened to call the police, Miles and Carol told them they
would be “beat[en] . . . black and blue before [the police
would] get here” and “the only thing [the police will] be pick-
ing up is a dead body.” Joshua also testified about being sexu-
ally assaulted in the Ruch home; he said Miles told him that
“it was either going to be me or . . . one of my sisters.” Joshua
believed he was protecting his sisters by enduring the sexual
abuse, stating, “[I]f I was letting [Miles] do it to me [then] he
wouldn’t do it to them.”
Sydnie testified that her earliest memory in life was being
sexually assaulted by Miles, who would come into her bed-
room every night he was home and molest her. Sydnie testi-
fied that when Miles was not sexually assaulting her, he was
being physically violent. She testified that Carol was physi-
cally violent too and that Carol would hit the siblings with
a board or “anything that she had around.” Sydnie testified
that Carol was also emotionally abusive, often calling Sydnie
“ugly” and “stupid.”
Abigail testified that she could not recall a time in the Ruch
home when she was not being physically and sexually abused
by Miles. She also described physical abuse by Carol, includ-
ing a time when Carol disciplined her by pressing her hand
onto an electric stove burner. Abigail testified that Carol was
verbally abusive too, constantly calling the siblings “stupid,
ugly, worthless.”
After the siblings presented their case in chief, DHHS
moved for a directed verdict on two grounds—one was juris-
dictional, and the other was on the merits. First, DHHS argued

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
JOSHUA M. v. STATE
Cite as 316 Neb. 446
it had sovereign immunity because the siblings’ claims fell
within the STCA’s exemption in § 81-8,219(4) for “[a]ny
claim arising out of assault [or] battery.” To support this argu-
ment, DHHS relied on the reasoning and holding in Moser, 7
an opinion released by this court in September 2020, which
held that this exemption applied to bar a claim that the State
negligently failed to protect an inmate from a fatal assault by
his cellmate. The district court described DHHS’ argument
as “somewhat compelling,” but ultimately declined to apply
Moser, reasoning that Koepf 8 remained good law and that prin-
ciples of vertical stare decisis compelled the court to follow
Koepf in the instant case.
DHHS also moved for a directed verdict on the merits,
arguing the siblings had failed to establish a prima facie case
of negligence as against DHHS. The district court agreed in
part and directed a verdict in favor of DHHS on the claim
that DHHS was negligent in recommending reunification with
the biological father, concluding the siblings had adduced no
evidence suggesting DHHS had any reason to foresee that he
would sexually abuse the siblings.
After DHHS presented its case in chief, the court took the
matter under advisement pending consideration of written clos-
ing arguments.
3. Judgment
In an order entered December 19, 2021, the district court
found the siblings had proved their claim of intentional assault
and battery against Miles, but had failed to prove their claim
of negligence against DHHS.
As against Miles, the court made express findings that
the allegations of intentional assault and battery were true
and that the “evidence at trial further showed that Miles
7 Moser, supra note 4.
8 Koepf, supra note 3.

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JOSHUA M. v. STATE
Cite as 316 Neb. 446
personally inflicted abuse on all [the siblings] proximately
causing them damages.” The court entered a default judgment
against Miles and in favor of the siblings in the total amount
of $2.9 million.
Regarding the negligence claims against DHHS, the court
began its analysis by quoting Koepf for the proposition that
“[t]he placement in foster homes of defenseless children, and
the supervision of their health and care, once committed to the
custody of the welfare department must be accomplished with
the reasonable care commensurate with the circumstances.” 9
After reviewing the evidence adduced at trial, the court spe-
cifically found that DHHS “acted reasonably under the circum-
stances when [it] placed [the siblings] in foster care with the
Ruchs.” And it found that DHHS “acted reasonably under the
circumstances in supervising and monitoring the foster care
placement,” reasoning:
The evidence of allegations regarding the supervision
and monitoring of [the siblings] while placed in the Ruch
foster home do[es] not rise to the level of a breach of the
duty to reasonably supervise or monitor the placement.
All reported allegations were investigated by DHHS, or
[the siblings] have failed to meet their burden to estab-
lish the allegations were not investigated, and [DHHS]
could not have investigated concerns that were never
brought to [its] attention or which were not substantiated
after initial investigation.
The district court also found that during the period when the
siblings were under guardianship with the Ruchs, DHHS “did
not breach any duty to report and investigate abuse which [it]
had knowledge of and, if necessary, cause a complaint to be
filed under Neb. Rev. Stat. § 43-706.” Ultimately, the district
court concluded the evidence showed that DHHS “did not
have a reason to believe the Ruchs were improper persons to
9 Koepf, supra note 3, 198 Neb. at 73-74, 251 N.W.2d at 871.

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JOSHUA M. v. STATE
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have the care and custody of the [siblings] until the founded
reports of [sexual abuse by Miles in] 2004.”
The siblings filed this timely appeal, challenging several of
the trial court’s rulings regarding the negligence claims against
DHHS. DHHS has not cross-appealed on any issue.
4. Supplemental Briefing
After the parties appeared for oral argument before this
court, we requested supplemental briefs addressing whether
any of the siblings’ claims against DHHS fell within the
statutory exemption for “[a]ny claim arising out of assault [or]
battery.” 10 We also requested supplemental briefing on whether
the reasoning and holding of Koepf, 11 as it regards the assault
and battery exemption, can be reconciled with the reason-
ing and holdings in Moser, 12 Edwards v. Douglas County, 13
Williams v. State, 14 and Dion v. City of Omaha. 15 We discuss
the parties’ supplemental briefing later in our analysis.
II. ASSIGNMENTS OF ERROR
The siblings assign, consolidated and restated, that the
district court erred in (1) granting DHHS a partial directed
verdict on the claims involving placement with their biological
father, (2) finding that DHHS did not breach its duty of care
to the siblings while they were in foster care, and (3) exclud-
ing certain deposition testimony at trial. However, because we
conclude the court lacked subject matter jurisdiction over the
siblings’ claims against DHHS, we do not reach the merits of
any assigned error.
10 § 81-8,219(4).
11 Koepf, supra note 3.
12 Moser, supra note 4.
13 Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
14 Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021).
15 Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).

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JOSHUA M. v. STATE
Cite as 316 Neb. 446
III. STANDARD OF REVIEW
[1] Whether a claim is precluded by an exemption under the
STCA presents a question of law. 16
[2,3] Subject matter jurisdiction is a question of law. 17 When
a jurisdictional question does not involve a factual dispute, the
issue is a matter of law. 18
[4] An appellate court reviews questions of law indepen-
dently of the lower court’s conclusion. 19
IV. ANALYSIS
1. General Principles of
Sovereign Immunity
[5-7] Under the common-law doctrine of sovereign immu-
nity, a state’s immunity from suit is recognized as a funda-
mental aspect of sovereignty. 20 The doctrine of sovereign
immunity is, by its nature, jurisdictional, 21 and presents a
question of subject matter jurisdiction that courts cannot
ignore. 22 Questions regarding a court’s subject matter juris-
diction should be resolved as a threshold matter before an
examination of the merits. 23 We therefore begin our analysis
by reviewing the principles of sovereign immunity that bear
on subject matter jurisdiction in this case.
16 See Doe v. State, 312 Neb. 665, 980 N.W.2d 842 (2022).
17 Id.
18 Id.
19 Id.
20 Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022); Burke
v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019); State ex rel.
Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d 903 (2018).
21 Clark, supra note 20; Davis v. State, 297 Neb. 955, 902 N.W.2d 165
(2017).
22 See, Doe, supra note 16; Edwards, supra note 13.
23 See, Doe, supra note 16; Lambert v. Lincoln Public Schools, 306 Neb.
192, 945 N.W.2d 84 (2020).

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[8-10] The sovereign immunity of the State and its political
subdivisions is preserved in Neb. Const. art. V, § 22, which
provides: “The state may sue and be sued, and the Legislature
shall provide by law in what manner and in what courts suits
shall be brought.” This constitutional provision permits the
State to lay its sovereignty aside and consent to be sued on
such terms and conditions as the Legislature may prescribe. 24
But we have long held that this constitutional provision is
not self-executing and that no suit may be maintained against
the State or its political subdivisions unless the Legislature,
by law, has so provided. 25 As such, it is settled law that
absent legislative action waiving sovereign immunity, a trial
court lacks subject matter jurisdiction over an action against
the State. 26
[11,12] The authority to determine which claims can be
brought against the State, and which cannot, has always been
a power the Nebraska Constitution expressly placed in the
legislative branch. 27 But at one point in our history, a slim
majority of this court believed that if the Legislature had not
acted to waive sovereign immunity for a particular category
of tort cases, then this court could judicially abrogate sover-
eign immunity as it deemed appropriate in tort cases. 28 Not
surprisingly, shortly after those opinions were released, the
Legislature enacted the STCA and the Political Subdivisions
24 Burke, supra note 20; Gentry v. State, 174 Neb. 515, 118 N.W.2d 643
(1962).
25 Doe, supra note 16.
26 Id.
27 See Neb. Const. art. V, § 22.
28 See, e.g., Brown v. City of Omaha, 183 Neb. 430, 434, 160 N.W.2d
805, 808 (1968) (“[w]e are convinced that the rule of governmental tort
immunity is of judicial or common law origin, and that this court has
power to modify it in the absence of legislative action to the contrary”).
Accord, Johnson v. Municipal University of Omaha, 184 Neb. 512, 169
N.W.2d 286 (1969) (purporting to judicially abrogate sovereign immunity
for tort claims arising out of physical condition on land).

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Tort Claims Act (PSTCA). 29 Both acts expressly declared that
“no suit shall be maintained against [the State or its politi-
cal subdivisions] on any tort claim except to the extent, and
only to the extent, provided” by the STCA or PSTCA. 30 Since
the enactment of the STCA and the PSTCA, this court has
unequivocally held that “[t]he judiciary does not have the
power to waive sovereign immunity regardless of the equities
of the case.” 31
[13-15] Through the enactment of the STCA and the PSTCA,
the Legislature has waived sovereign immunity with respect to
some, but not all, types of tort claims. 32 Both the STCA and
the PSTCA contain exemptions to the limited waiver of sov-
ereign immunity, 33 and those exemptions describe the types of
tort claims for which the State and its political subdivisions
retain sovereign immunity. 34 When a claim falls within an
exemption under the STCA or the PSTCA, sovereign immunity
for the claim has not been waived and the proper remedy is to
dismiss the claim for lack of subject matter jurisdiction. 35
[16] We have long held that statutes purporting to waive the
protection of sovereign immunity are to be strictly construed
29 See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
30 § 81-8,209. Accord § 13-902.
31 McKenna v. Julian, 277 Neb. 522, 529, 763 N.W.2d 384, 390 (2009),
abrogated in part on other grounds, Doe v. Board of Regents, 280 Neb.
492, 788 N.W.2d 264 (2010), overruled, Davis, supra note 21. Accord,
Edwards, supra note 13, 308 Neb. at 280, 953 N.W.2d at 758 (recognizing
“decisions on whether and how to limit the government’s potential tort
liability belong to the Legislature”); Moser, supra note 4, 307 Neb. at 31,
948 N.W.2d at 204 (recognizing it is “clear that it is the province of the
Legislature, and not of this court” to decide whether STCA’s exemption
for assault or battery should be amended).
32 See id. See, also, Dion, supra note 15; Clark, supra note 20; Williams,
supra note 14.
33 See §§ 13-910 and 81-8,219.
34 See, Doe, supra note 16; Edwards, supra note 13.
35 Clark, supra note 20; Edwards, supra note 13.

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in favor of the sovereign and against waiver. 36 We explained
the rationale for this rule in Jill B. & Travis B. v. State 37 :
The principle of strict construction predated the [STCA]
and has been consistently followed after its adoption. We
had long said that statutes authorizing suit against the
State are to be strictly construed, since they are in dero-
gation of the State’s sovereignty. Following adoption of
the [STCA], we emphasized that statutes in derogation
of sovereignty should be strictly construed in favor of
the State, so that its sovereignty may be upheld and not
narrowed or destroyed . . . . unless the intention of the
Legislature to effect this object is clearly expressed. We
also said that because the State has given only conditional
consent to be sued and there is no absolute waiver of
immunity by the State, requirements of the [STCA] must
be followed strictly.
[17] We have repeatedly recognized that in order to “strictly
construe [statutes] against a waiver of sovereign immunity,
[courts] must read [statutory] exemptions from a waiver of
sovereign immunity broadly.” 38
With these sovereign immunity and statutory construction
principles in mind, we turn now to a review of our case
law construing the specific statutory exemption at issue in
this appeal.
36 See Moser, supra note 4. See, also, Catania v. The University of Nebraska,
204 Neb. 304, 282 N.W.2d 27 (1979) (endorsing general rule that statutes
in derogation of sovereign immunity should be strictly construed in favor
of the State), overruled on other grounds, Blitzkie v. State, 228 Neb. 409,
422 N.W.2d 773 (1988).
37 Jill B. & Travis B. v. State, 297 Neb. 57, 68-69, 899 N.W.2d 241, 251-52
(2017).
38 Moser, supra note 4, 307 Neb. at 29, 948 N.W.2d at 203. Accord, Brown
v. State, 305 Neb. 111, 939 N.W.2d 354 (2020); 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. Commn., 298 Neb.
617, 905 N.W.2d 551 (2018); Stick v. City of Omaha, 289 Neb. 752, 857
N.W.2d 561 (2015).

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2. Case law Construing Exemptions for
Any Claim Arising Out of
Assault or Battery
[18] The Legislature enacted the STCA and the PSTCA
in 1969, and it included in both acts an exemption from the
limited waiver of sovereign immunity for “[a]ny claim arising
out of assault [or] battery . . . .” 39 This quoted statutory lan-
guage has remained unchanged since its enactment. Because
the exemption for claims arising out of assault or battery is
the same under the STCA and the PSTCA, our cases constru-
ing the STCA exemption are applicable to cases construing the
PSTCA exemption, and vice versa. 40
Over the years, this court has issued at least 10 published
opinions expressly considering whether a particular claim was
barred by the exemption for claims arising out of assault or
battery. 41 Our opinions have not always applied consistent
reasoning when construing this statutory provision.
Generally speaking, our opinions have followed one of
two analytical approaches when construing the assault or bat-
tery exemption under the STCA and PSTCA. One approach
originated with our 1977 opinion in Koepf, 42 and the other
originated with our 2005 opinion in Johnson v. State. 43 In the
sections that follow, we summarize the reasoning of those
cases and the competing lines of authority that developed.
39 See § 81-8,219(4). See, also, 1969 Neb. Laws, ch. 756.
40 See, e.g., Moser, supra note 4.
41 See, Dion, supra note 15; Williams, supra note 14; Edwards, supra note
13; Moser, supra note 4; Rutledge v. City of Kimball, 304 Neb. 593, 935
N.W.2d 746 (2019); Britton v City of Crawford, 282 Neb. 374, 803 N.W.2d
508 (2011); McKenna, supra note 31; Doe v. Omaha Pub. Sch. Dist., 273
Neb. 79, 727 N.W.2d 447 (2007), overruled in part, Moser, supra note 4;
Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005); Koepf, supra note
3.
42 Koepf, supra note 3.
43 Johnson, supra note 41.

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We ultimately conclude that only the Johnson line of author-
ity, which was expressly endorsed by this court in Moser, 44 is
consistent with the settled duty to strictly construe waivers of
sovereign immunity in favor of the sovereign and to broadly
read exemptions from waivers of immunity. We therefore
expressly overrule the Koepf line of authority and all cases
applying similar reasoning.
(a) Koepf and Similar Cases
In Koepf, a minor child was fatally assaulted by his foster
mother, and his estate sued the county welfare department
to recover wrongful death damages under the PSTCA. The
county argued that the estate’s claim was barred by sovereign
immunity under the PSTCA’s exemption for “[a]ny claim
arising out of assault [or] battery . . . .” 45 Koepf rejected that
argument, calling it “demonstrably erroneous” and reasoning
that the claim was “not based upon the alleged assault by the
foster mother [but instead was] based upon the alleged negli-
gence of the welfare department in the selection and supervi-
sion of the foster home.” 46
In a series of cases following Koepf, this court allowed
tort recovery under the STCA on facts similar to those con-
sidered in Koepf. 47 The plaintiffs in these cases generally
44 Moser, supra note 4.
45 See § 13-910(7).
46 Koepf, supra note 3, 198 Neb. at 72, 251 N.W.2d at 870.
47 See, e.g., Moore v. State, 245 Neb. 735, 515 N.W.2d 423 (1994) (foster
parents whose child was sexually molested by foster child sued DHHS
under STCA for negligent foster care placement); Haselhorst v. State,
240 Neb. 891, 485 N.W.2d 180 (1992) (same); Talle v. Nebraska Dept.
of Soc. Servs., 253 Neb. 823, 572 N.W.2d 790 (1998) (Talle II) (foster
parent assaulted by foster child sued DHHS under STCA for negligent
placement); and Talle v. Nebraska Dept. of Soc. Servs., 249 Neb. 20, 541
N.W.2d 30 (1995) (Talle I) (same). See, also, Teater v. State, 252 Neb.
20, 559 N.W.2d 758 (1997) (former foster child sued State under STCA,
alleging negligent supervision of foster placement resulted in sexual
assault by foster parent; claim dismissed on statute of limitations ground).

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sought to recover for assaults resulting from negligent foster
care placement or supervision, but none of the opinions cited
to or expressly relied on Koepf, and none addressed or ana-
lyzed sovereign immunity for claims arising out of assault
or battery.
In the 2007 case of Doe v. Omaha Pub. Sch. Dist. (Doe), 48
we applied reasoning that was strikingly similar to that in
Koepf, although our opinion did not cite to or discuss Koepf.
In Doe, a student sued a school district under the PSTCA after
being sexually assaulted by another student on school property
during school hours. The school district argued the student’s
claim was barred by the PSTCA’s exemption for claims arising
out of assault or battery, but we disagreed, reasoning:
[The student’s] claim is not based upon the assault
itself, and he could not prevail merely by proving that
it occurred. Rather, he alleges that before the alleged
assault, [the school district] breached an independent
legal duty . . . to take reasonable steps to prevent fore-
seeable violence from occurring on its premises. . . . The
claim therefore does not arise from an assault, but, rather,
from an alleged negligent failure to protect a student
from a foreseeable act of violence. 49
As the above discussion illustrates, both Koepf and Doe
involved claims that a political subdivision negligently failed
to protect a child from a foreseeable assault, and both cases
expressly concluded such claims fall outside the scope of the
PSTCA’s exemption for claims arising out of assault or bat-
tery. As we discuss next, most of our other cases construing
the exemption have expressly rejected such reasoning.
(b) Johnson and Similar Cases
In 2005, we decided Johnson and described that case as
our first opportunity to “interpret the scope” of the STCA’s
48 Doe, supra note 41.
49 Id. at 88, 727 N.W.2d at 456 (citations omitted) (emphasis in original).

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exemption for claims arising out of assault or battery. 50 In
Johnson, a prisoner sued the State under the STCA, alleging
she had been sexually assaulted by a prison guard. The trial
court concluded the claim arose out of an assault and was
thus barred by sovereign immunity. The prisoner appealed,
arguing that her claim did not arise out of assault, but, rather,
arose from independent acts of governmental negligence that
allowed the assault to occur, including negligent hiring and
supervision of the prison guard. 51 Johnson soundly rejected this
argument.
[19] Our analysis in Johnson began by reciting the principle
that statutes purporting to waive the protection of sovereign
immunity must be strictly construed in favor of the sover-
eign and against waiver. Applying that principle, Johnson
held that even though the prisoner’s claim had been framed
as the negligent failure to prevent an assault, the claim fell
squarely within the STCA exemption for claims arising from
assault, reasoning:
“[A plaintiff] cannot avoid the reach of [the assault
or battery exemption] by framing her complaint in terms
of negligent failure to prevent the assault and battery.
[The exemption] does not merely bar claims for assault
or battery; in sweeping language it excludes any claim
arising out of assault or battery.” 52
We have adhered to the reasoning in Johnson in a line of
cases going back more than 20 years, including McKenna
50 Johnson, supra note 41, 270 Neb. at 320, 700 N.W.2d at 623.
51 Johnson, supra note 41.
52 Id. at 320, 700 N.W.2d at 624 (emphasis in original), quoting United
States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985).

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v. Julian, 53 Britton v. City of Crawford, 54 Rutledge v. City of
Kimball, 55 Moser, 56 Edwards, 57 Williams, 58 and Dion. 59
In McKenna, Britton, and Rutledge, we considered personal
injury and wrongful death claims brought under the PSTCA.
McKenna involved a claim that police assaulted the plaintiff
during an improper arrest. Britton involved a claim that police
negligently shot and killed a burglary suspect. And Rutledge
involved a claim that the plaintiff was physically attacked by
an assailant whom the city negligently hired and supervised.
In each of these cases, we recited and applied principles of
strict construction and concluded that although the claims
were framed in terms of negligence by the city, they neverthe-
less arose out of an assault or battery and thus fell within the
scope of the PSTCA’s exemption for assault or battery. 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,
consequently, 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 inextri-
cably linked to a battery. [This] suit is thus barred by the
PSTCA. 60
Similarly, in Rutledge, we said:
53 McKenna, supra note 31.
54 Britton, supra note 41.
55 Rutledge, supra note 41.
56 Moser, supra note 4.
57 Edwards, supra note 13.
58 Williams, supra note 14.
59 Dion, supra note 15.
60 Britton, supra note 41, 282 Neb. at 386, 803 N.W.2d at 518.

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While [the plaintiff’s] claim is characterized as one of
negligence, no claim would exist but for [the] alleged
battery. At oral argument, [the plaintiff] conceded that
there never would have been a lawsuit had she not been
assaulted. Thus, regardless of how the claim is pled, [the]
claim is inextricably linked to a battery. Accordingly, the
alleged negligence falls within the [PSTCA exemption for
claims arising out of assault or battery] and the [defend-
ant city] has not waived its sovereign immunity. 61
Our 2020 opinion in Moser involved a wrongful death
claim brought under the STCA by the estate of an inmate who
was fatally assaulted by his cellmate while housed in a state
prison facility. 62 The estate alleged the State was negligent in
double-bunking the inmates and in failing to protect against
a foreseeable assault. Applying principles of strict statutory
construction, which we noted required a broad reading of the
STCA exemption for “[a]ny claim arising out of assault,” 63
Moser affirmed the district court’s dismissal of the action for
lack of subject matter jurisdiction, concluding the claim fell
squarely within the scope of the exemption.
Moser was also the first time that a majority of this court
addressed historical tension in our case law construing and
applying the assault or battery exemption under the STCA and
PSTCA. Moser specifically discussed the reasoning of Doe, 64
describing that case as an “outlier” 65 in our sovereign immunity
jurisprudence and holding:
Our 	decision 	in 	Doe 	was 	inconsistent 	with 	the
approach we have taken in other cases as it relates to
the “arising out of” language, and it does not comply
61 Rutledge, supra note 41, 304 Neb. at 602, 935 N.W.2d at 753.
62 Moser, supra note 4.
63 § 81-8,219(4).
64 Doe, supra note 41.
65 Moser, supra note 4, 307 Neb. at 28, 948 N.W.2d at 202.

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with our obligation to strictly construe the State’s waiver
of immunity. That decision was wrong, and as such, we
overrule it. 66
In overruling Doe, our opinion in Moser did not expressly
mention Koepf. 67 But to the extent Doe and Koepf applied
similar reasoning, Moser left little doubt that a majority of this
court expressly disapproved of such reasoning.
[20-22] Since Moser, this court’s cases have consistently
applied principles of strict construction when determining
whether a claim falls within the scope of the exemption for
claims arising out of assault or battery. 68 In Edwards, 69 we
held the exemption applied to bar a claim alleging that a
county negligently handled calls to the 911 emergency dis-
patch service and that as a result, emergency personnel did not
arrive in time to stop or prevent the plaintiff from being sexu-
ally assaulted. Edwards reviewed our prior decisions applying
principles of strict construction and summarized the proper
analytical framework to apply when determining whether a
claim falls within the exemption for claims arising out of
assault or battery:
[O]ur 	cases 	have 	construed 	the 	[assault 	or 	battery]
exemption to give it the full breadth demanded by its
plain text and our canons of construction. We have said
the exemption applies whenever an assault “is essential
to the claim,” and it bars claims against the government
which “sound in negligence but stem from [an assault or]
battery.” We have also said the exemption encompasses
claims that “would not exist without an assault or bat-
tery,” and claims which are “‘inextricably linked to [an
66 Id. at 31, 948 N.W.2d at 202.
67 See Koepf, supra note 3.
68 See, Dion, supra note 15; Williams, supra note 14; Edwards, supra note
13.
69 Edwards, supra note 13.

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assault or] battery.’” All of these articulations speak to
the same point: when a tort claim against the govern-
ment seeks to recover damages for personal injury or
death stemming from an assault, the claim necessarily
“arises out of assault” and is barred by the intentional
tort exemption under the PSTCA. The plain language
of the exemption and our principles of strict construc-
tion require this result no matter how the tort claim has
been framed and regardless of the assailant’s employ-
ment status. 70
We applied this framework again in Williams 71 to conclude
the assault or battery exemption barred an inmate’s claim under
the STCA, alleging he was stabbed by a fellow inmate because
the State negligently placed the inmates together in the same
housing unit despite a “keep separate list.”
And most recently, in Dion, we applied this framework
to conclude the exemption barred a wrongful death claim
against the city, alleging that police negligently shot and
killed a film crew member while firing at a robbery suspect.
Dion rejected the plaintiff’s contention that the estate had
“not sue[d] for battery, but, rather, sued for negligence,” 72
explaining that regardless of how the claim is framed by the
plaintiff, courts will
[look to] the gravamen of the complaint [to determine]
whether the plaintiff has alleged an injury independent
of that caused by the excluded acts, i.e., that the injury is
linked to a duty to act that is entirely separate from the
acts expressly excluded from the statutory waiver of sov-
ereign immunity. 73
70 Id. at 277-78, 953 N.W.2d at 756.
71 Williams, supra note 14, 310 Neb. at 589, 967 N.W.2d at 679 (internal
quotation marks omitted).
72 Dion, supra note 15, 311 Neb. at 545, 973 N.W.2d at 684.
73 Id. at 541, 973 N.W.2d at 682.

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(c) Reconciling Case Law
Having summarized the two competing analytical approaches
this court has used when construing and applying the exemp-
tion for claims arising out of assault or battery, we now con-
sider the question we asked the parties to address in their
supplemental briefing: whether the reasoning and holding in
Koepf, as it regards the exemption for claims arising out of
assault or battery, can be reconciled with the reasoning and
holdings in Moser, Edwards, Williams, and Dion. 74
DHHS argues that the reasoning in Koepf was “perfunc-
tory” and contained “no analysis of the statutory text or the
principles of sovereign immunity.” 75 DHHS thus suggests that
for the same reasons Moser concluded the sovereign immunity
analysis in Doe was wrong and must be overruled, we should
now overrule Koepf.
The siblings disagree and generally present two reasons why
they think Koepf remains good law and should be followed
here. First, they point out that when Moser overruled Doe,
it did not cite to or expressly discuss Koepf. They note that
Moser described Doe as an “outlier” 76 in Nebraska’s sovereign
immunity jurisprudence and that Edwards and Williams gener-
ally echoed that characterization. 77 The siblings infer, from
our references to Doe as an outlier, that Koepf must “be an
example of the proper construction the Moser [c]ourt sought to
reinstate.” 78 They are incorrect.
74 See, Dion, supra note 15; Williams, supra note 14; Edwards, supra note
13, Moser, supra note 4; Koepf, supra note 3.
75 Supplemental brief for appellees at 11.
76 Moser, supra note 4, 307 Neb. at 28, 948 N.W.2d at 202.
77 See, Edwards, supra note 13, 308 Neb. at 277, 953 N.W.2d at 756 (stating
that “with the exception of Doe,” our cases construe exemption for assault
or battery “to give it the full breadth demanded by its plain text and our
canons of construction”); Williams, supra note 14, 310 Neb. at 597, 967
N.W.2d at 684 (referring to Doe as “the only case decided in the past 20
years which had departed from” our strict construction precedent).
78 Supplemental brief for appellants at 13.

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Doe and Koepf both suffer from the same analytical failing;
both relied on semantic reframing of the tort claims against
the government in order to evade the exemption for claims
arising out of assault or battery, and neither applied principles
of strict construction to broadly construe the exemption. This
court’s failure to expressly cite or discuss Koepf in our prior
cases does not reflect agreement with the reasoning or holding
in Koepf; rather, it reflects a regrettable failure to look back
far enough in our sovereign immunity jurisprudence to discuss
the case at all.
Alternatively, the siblings argue that the reasoning in Koepf
must have been correct because in several reported opinions
in the 1990s, this court affirmed tort recovery under the
STCA for plaintiffs who alleged they or their child had been
assaulted as a result of DHHS’ negligent foster care place-
ment or supervision. 79 The siblings read too much into these
cases. None of the cases expressly relied on Koepf, and none
addressed the issue of sovereign immunity under the assault
or battery exemption. Moreover, the opinions were decided
during a period when this court treated exemptions under the
STCA and PSTCA as affirmative defenses that were waived
if not raised in a responsive pleading, rather than as a juris-
dictional issue. 80 As such, it is likely the sovereign immunity
issue was not addressed in those cases simply because it was
not raised; the cases do not support the siblings’ contention
that the sovereign immunity analysis in Koepf was correct.
We agree with DHHS that Koepf basically endorsed the
same faulty reasoning and semantic reframing relied upon
in Doe, and for the same reasons we concluded in Moser
that Doe must be overruled as wrongly decided, we likewise
79 See, Talle II, supra note 47; Talle I, supra note 47; Moore, supra note 47;
Haselhorst, supra note 47. See, also, Teater, supra note 47.
80 See Davis, supra note 21 (overruling prior cases holding that exemptions
under STCA and PSTCA are affirmative defenses that must be affirmatively
pled or are waived, reasoning that such cases could not be reconciled with
jurisdictional nature of sovereign immunity).

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conclude that Koepf must be overruled. The siblings have sug-
gested no principled way to distinguish Koepf or to reconcile
its reasoning with Moser, Edwards, Williams, and Dion, and
we see none.
Although Moser implicitly overruled the reasoning of Koepf,
we now expressly overrule Koepf, along with any other cases
applying similar reasoning to conclude that the exemption for
claims arising out of assault or battery cannot apply to a claim
framed as the negligent failure to protect against a foresee-
able assault or battery. Instead, courts considering whether a
claim falls within the scope of the exemption for claims aris-
ing out of assault or battery should apply settled principles of
strict construction using the analytical framework endorsed in
Moser, Edwards, Williams, and Dion.
For the sake of completeness, we acknowledge there are
other appellate cases decided under the STCA and the PSTCA
where the plaintiff’s claim plainly involved allegations that
the government was negligent in failing to prevent an assault
or battery, but where our opinion did not directly address the
exemption for claims arising out of assault or battery and
instead resolved the case on its merits. 81 We caution that such
81 See, e.g., Cingle v. State, 277 Neb. 957, 766 N.W.2d 381 (2009) (prisoner’s
estate brought STCA claim alleging prison employees negligently failed
to prevent fatal assault by cellmate); Ehlers v. State, 276 Neb. 605,
756 N.W.2d 152 (2008) (resident of state institution brought STCA
claim alleging institution employees failed to prevent assault by another
resident); Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997) (prisoner
sued under STCA, alleging prison employees negligently failed to prevent
assault by cellmate), overruled on other grounds, Davis, supra note 21;
Richards v. Douglas County, 213 Neb. 313, 328 N.W.2d 783 (1983)
(stabbing victim brought PSTCA suit against county alleging negligence
in failing to involuntarily commit assailant); Daniels v. Andersen, 195
Neb. 95, 97, 237 N.W.2d 397, 400 (1975) (jail inmate assaulted by fellow
inmate in “‘drunk tank’” sued police and city for negligent supervision).
See, also, Webber v. Andersen, 187 Neb. 9, 187 N.W.2d 290 (1971) (jail
inmate assaulted by cellmate sued city for negligently placing him in cell
with three drunk, belligerent cellmates when police knew or should have
known inmate was at risk of being assaulted).

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cases have no precedential value regarding the proper scope
or interpretation of the exemption for claims arising out of
assault or battery under the STCA or the PSTCA.
Having clarified that the analytical framework endorsed in
Moser represents the correct legal standard for determining
whether a claim falls within the scope of the STCA’s exemp-
tion for claims arising out of assault and battery, we turn next
to the parties’ supplemental briefing on the applicability of that
exemption to the siblings’ claims against DHHS.
3. Siblings’ Claims Arise Out
of Assault or Battery
In its supplemental brief, DHHS argues that the siblings
“have not alleged any harm that does not arise from an assault
or battery within the meaning of § 81-8[,]219(4)” 82 and asserts
that all the siblings’ claims against DHHS are therefore barred
by sovereign immunity.
The siblings disagree and argue that their claims against
DHHS fall outside the assault or battery exemption for two
reasons. Their first argument focuses on the timing of the
alleged negligence. More specifically, the siblings contend that
their claims against DHHS do not arise out of assault or bat-
tery, because DHHS breached its duty of reasonable care “the
minute it placed the [siblings] into a dangerous foster care
placement” and consequently the breach occurred before “any
physical violence [was] inflicted upon [them].” 83 The opinion
in Doe made a similar observation about the timing of the
breach when seeking to justify the conclusion that the assault
or battery exemption did not apply, reasoning:
[The plaintiff’s] claim is not based upon the assault
itself, and he could not prevail merely by proving that
it occurred. Rather, he alleges that before the alleged
assault, [the defendant] breached an independent legal
82 Supplemental brief for appellees at 7.
83 Supplemental brief for appellants at 6.

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duty . . . to take reasonable steps to prevent foreseeable
violence from occurring on its premises. 84
But in Moser, we rejected this reasoning from Doe as
semantic reframing, and it can fare no better now. Where,
as here, the personal injury claim is premised on allegations
that the government negligently failed to protect against a
foreseeable assault or battery, the alleged breach of duty
will always precede the assault. Indeed, that was the case in
Johnson, McKenna, Britton, Rutledge, Moser, Williams, and
Dion, and in each of those cases, we focused on the nature of
the personal injury claim, rather than the allegation of negli-
gence asserted against the government, and we concluded the
claim arose out of the assault or battery and thus fell squarely
within the scope of the exemption. 85 The same conclusion is
required in this case. Given the unqualified breadth of the
statutory exemption for “[a]ny claim arising out of assault [or]
battery,” 86 we reject the suggestion that the sovereign immu-
nity analysis must focus only on the alleged governmental
negligence that preceded the commission of an assault or bat-
tery and must ignore that the plaintiff is claiming the govern-
ment’s negligence allowed an assault or battery to occur that
injured the plaintiff. 87
Alternatively, the siblings argue that even if the assault or
battery exemption bars their claims against DHHS for per-
sonal injury arising out of the physical and sexual abuse they
endured, they should still be allowed to recover against DHHS
84 Doe, supra note 41, 273 Neb. at 88, 727 N.W.2d at 456.
85 See, Dion, supra note 15; Williams, supra note 14; Moser, supra note 4;
Rutledge, supra note 41; Britton, supra note 41; McKenna, supra note 31;
Johnson, supra note 41.
86 § 81-8,219(4).
87 Accord Pelham v. Board of Regents, 321 Ga. App. 791, 796, 743 S.E.2d
469, 473 (2013) (“if a plaintiff’s injury was caused by an assault and
battery committed by a third party, the state is immune from suit even if
the assault and battery . . . resulted from the prior negligent performance
of a state officer or employee”).

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based on trial evidence showing they were also “abused emo-
tionally and mentally in the Ruch household.” 88 The dissent
makes a similar argument and suggests this case should be
remanded so the trial court can consider “a pattern of child
abuse that is factually distinct from the physical and sexual
assaults the siblings experienced.” The fundamental flaw in
this argument is that the siblings neither alleged, nor presented
at trial, a separate claim arising out of emotional abuse or
neglect that was factually or causally distinct from their claim
arising out of physical and sexual abuse.
When considering whether a plaintiff has alleged a claim
for emotional abuse that is separate and distinct from claims
arising out of physical and sexual abuse, an appellate court
applies the “gravamen of the complaint test, [and] examines
the underlying substance of a dispute in order to determine
whether sovereign immunity lies.” 89 The gravamen of a com-
plaint “is the ‘substantial point or essence of a claim, griev-
ance, or complaint’ and 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.” 90
Here, the operative complaint sought to recover personal
injury damages based on allegations that the siblings were
“subjected to physical and sexual abuse” by Miles and were
later “sexually abused by their father” and that DHHS “knew
or should have known that the siblings were being abused,”
yet failed to protect them from such abuse. Thus, as framed
by the operative complaint, the gravamen or essence of the
siblings’ tort claim was the significant harm caused by the
pattern of physical and sexual abuse they endured. The opera-
tive complaint sometimes refers to “the assault and battery
88 Supplemental brief for appellants at 8.
89 Dion, supra note 15, 311 Neb. at 541, 973 N.W.2d at 681-82 (internal
quotation marks omitted).
90 Id. at 541, 973 N.W.2d at 682.

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upon the [siblings]” and other times refers to the siblings’
being “subjected to physical and sexual abuse” or refers more
generally to their “being abused.” But the complaint contains
no factual allegations describing any form of abuse other than
physical and sexual abuse. To the extent our dissenting col-
league suggests the complaint can be read to allege “claims
of abuse and injuries that are independent of and do not arise
from assault and battery,” we must respectfully disagree.
Nor, on this record, can we agree with the dissent’s state-
ment that “the siblings have demonstrated acts of abuse that
are independent of the assaults.” At trial, the siblings did
not present a separate and distinct claim arising out of emo-
tional abuse. Instead, consistent with the pleadings, the siblings
adduced substantial and compelling evidence that they were
regularly subjected to physical and sexual abuse while living in
the Ruch home and that they suffered permanent physical and
emotional harm as a result of such abuse. Indeed, it was this
evidence that supported the trial court’s judgment awarding the
siblings $2.9 million against Miles based on intentional assault
and battery.
The dissent is correct that while testifying about the years of
physical and sexual abuse they experienced, the siblings also
testified about emotional cruelty in the Ruch home, includ-
ing demeaning insults, violent outbursts, and threats of more
violence if the siblings reported any of the assaults to the
authorities. Although we do not minimize the siblings’ testi-
mony about the emotional cruelty they experienced in the Ruch
home, the record shows this testimony was adduced while
recounting the pattern of physical and sexual abuse; it was not
presented to support a separate claim unrelated to the physical
and sexual abuse.
The dissent points to the testimony of emotional abuse and
proposes several different legal theories to support the con-
tention that “even under Moser . . . , DHHS is not immune
from negligence based on the emotional abuse by the foster
parents.” But none of the statutes, studies, or legal theories

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proposed by the dissent were presented in the trial court. We
therefore assume the primary purpose of discussing these legal
theories is not to analyze the case before this court, but to sug-
gest a possible roadmap for future litigants.
But in this case, neither the siblings nor their expert wit-
ness testified that the emotional abuse in the Ruch home
resulted in harm that was separate and distinct from the harm
caused by the ongoing physical and sexual abuse. To the
contrary, when proving causation and damages at trial, the
siblings’ expert witness focused exclusively on the cumula-
tive “effects of childhood physical and sexual abuse” and the
psychological and physical harm caused by such abuse. The
expert stated that although a variety of childhood adversities
(including physical abuse, sexual abuse, and emotional abuse)
can impact a child’s mental health and development, empiri-
cal studies show that “physical and sexual abuse contribute
unique harm and damage.” There was simply no attempt at
trial to prove a stand-alone claim arising out of emotional
abuse and no attempt to differentiate the harm caused by
childhood physical and sexual abuse from the harm caused
by unrelated emotional or verbal abuse. Instead, the expert
offered his opinion that the physical and sexual abuse the
siblings endured in childhood resulted in physical and emo-
tional harm that manifested differently in each sibling and
would require significant treatment and counseling to effec-
tively address.
Because the siblings did not plead or litigate a separate
and distinct claim for emotional abuse, and because their own
expert attributed all of their physical and emotional injuries
to the regular physical and sexual abuse they experienced as
children, we respectfully disagree with the dissent that this
case should be remanded “with directions to consider sepa-
rately the siblings’ allegations of negligence by DHHS that
arose from nonassault abuse by the foster parents.” Nor do
we see any practical purpose for such a remand, when the dis-
trict court already made express findings that DHHS did not

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breach its duty of reasonable care in selecting or monitoring
the siblings’ foster care placement and that DHHS reasonably
investigated all reports of abuse it received regarding the sib-
lings. The dissent has not articulated any reversible error in
these findings. Because any claim that DHHS failed to protect
the siblings from emotional abuse would necessarily rest on
the same allegations of negligent placement, monitoring, and
investigation the district court has already rejected on the mer-
its, a remand would be futile.
As such, whether we focus on the allegations of the opera-
tive complaint or on the evidence adduced at trial, our con-
clusion is the same: The siblings’ tort claim against DHHS
seeks to recover personal injury damages based on the alleged
negligent acts or omissions of DHHS employees in failing to
protect the siblings from being physically and sexually abused,
in the Ruch home and later in their biological father’s home.
The siblings’ claims are inextricably linked to the physical
and sexual assaults, and the physical and psychological harm
caused by those assaults is essential to their claims.
As we recognized in Edwards:
[W]hen a tort claim against the government seeks to
recover damages for personal injury or death stemming
from an assault, the claim necessarily “arises out of
assault” and is barred by the intentional tort exemption
. . . . The plain language of the exemption and our prin-
ciples of strict construction require this result no matter
how the tort claim has been framed and regardless of the
assailant’s employment status.” 91
In Edwards, we also stated “it is conceivable there could be
circumstances where the claim is so attenuated from an assault
that it cannot fairly be characterized as arising out of the
assault, [but] we do not have such a claim before us today.” 92
91 Edwards, supra note 14, 308 Neb. at 277-78, 953 N.W.2d at 756.
92 Id. at 279, 953 N.W.2d at 757.

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We must reach the same conclusion on this record. As
alleged and tried below, the siblings’ tort claims against
DHHS necessarily arose out of assault or battery and thus fell
squarely within the exemption in § 81-8,219(4).
Because the State has not waived its sovereign immunity
as to the siblings’ claims against DHHS, the district court
lacked subject matter jurisdiction over those claims. We must
therefore vacate the judgment of the district court as to DHHS
and remand the cause with directions to dismiss the claims
against DHHS. The monetary judgment against Miles for
intentional assault and battery is unaffected by our reasoning
and is affirmed.
V. CONCLUSION
While it is true that “[i]mmunity from suit against a sov-
ereign state has always resulted in hardship on those falling
within its scope,” 93 the authority to determine which tort
claims can be brought against the State, and which cannot,
is a power the Nebraska Constitution expressly placed in the
legislative branch. 94 The Legislature has elected to waive the
State’s sovereign immunity as to some tort claims, but it used
sweeping language to retain immunity for “[a]ny claim aris-
ing out of assault [or] battery.” 95 This court is required by
settled principles of strict construction to read that exemption
broadly in order to preserve the State’s immunity. Applying
those principles here, we must conclude the siblings’ claims
against DHHS fall squarely within the exemption for claims
arising out of assault or battery and thus are barred by sover-
eign immunity.
There is no debating that the abuse of a child entrusted to
the foster care system is deplorable. If the Legislature deter-
mines, as a matter of public policy, that tort recovery should
93 Brown, supra note 28, 183 Neb. at 442, 160 N.W.2d at 812 (Carter, J.,
dissenting; White, C.J., and Newton, J., join).
94 See Neb. Const. art. V, § 22.
95 § 81-8,219(4).

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be allowed against the State or its political subdivisions for at
least some claims arising out of assault or battery, it can nar-
row the scope of the current exemption under the STCA and
the PSTCA through the usual lawmaking process. But it is not
the proper role of this court, even when faced with tragic and
compelling facts, to pick and choose which tort claims aris-
ing out of an assault or battery should be permitted under the
STCA and the PSTCA and which should not.
Because the siblings’ tort claims against DHHS are barred
by sovereign immunity, we must vacate the judgment of the
district court as to DHHS and remand the cause with directions
to dismiss that defendant. In all other respects, the judgment
is affirmed.
Affirmed in part, and in part vacated
and remanded with directions.
Funke and Freudenberg, JJ., not participating.
Miller-Lerman, J., dissenting.
In this case, the majority overlooked an opportunity to limit
its Moser interpretation of the intentional tort exception when
it failed to differentiate between immune child assault and
nonimmune child abuse. By demonstrating its reluctance to
distinguish between the two, the majority has effectively ruled
that once there is an assault in the picture rendering the State
immune, the State is also immune from suit resulting from
cruel emotional child abuse. I do not think this holding is sup-
ported by statute or the record. I respectfully dissent.
I disagree with the majority’s conclusions in two funda-
mental respects. I believe the claims of negligence against the
Nebraska Department of Health and Human Services (DHHS)
arising from the abuse by the foster parents should not be dis-
missed; I would remand the cause for further proceedings in
light of the new law announced today.
First, the majority reasons that whatever “tort recovery
should be allowed against the State or its political subdivisions
for at least some claims” is “a matter of public policy” that can

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be remedied by the lawmaking process. To the contrary, this is
not a legislative “public policy” failure. The problematic out-
come in this case is the result of the application by the majority
of its statutory interpretation in Moser and the progeny thereof
with which, as I have repeatedly written, I respectfully dis-
agree. See Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d
666 (2022); Williams v. State, 310 Neb. 588, 967 N.W.2d
677 (2021); Edwards v. Douglas County, 308 Neb. 259, 953
N.W.2d 744 (2021); Moser v. State, 307 Neb. 18, 948 N.W.2d
194 (2020). An assault and battery by a civilian nongovern-
mental person does not give rise to a statutory “claim,” and
without a claim, there can be no exception thereto that would
relieve DHHS of the liability to which it otherwise consented.
One cannot apply the assault and battery exception to a nonex-
istent claim, and properly read, DHHS is not immune under the
statutes as they exist.
Second, the majority concludes that the siblings have nei-
ther alleged nor proved harm “separate and distinct” from that
caused by the physical and sexual assaults in the period dur-
ing which the siblings were in the custody of DHHS in foster
care. To the contrary, the complaint and record show claims
of abuse and injuries that are independent of and do not arise
from assault and battery. The complaint and record show that
in addition to the beatings and sexual assaults, DHHS failed to
remove the siblings from the foster home when it had “actual”
notice of the abuse; that for many years, the caseworker “ha[d]
been trying to report abuse/neglect” by the foster parents;
and that the foster parents warned the siblings that if they
reported the abuse and it were investigated, “the only thing
they’ll be picking up is a dead body.” Contrary to the majority
opinion, the siblings have demonstrated acts of abuse that are
independent of the assaults. So even applying Moser, where
the conduct makes certain claims not actionable due to an
exception, claimants such as the siblings are not barred by the
statutes from pursuing distinct claims arising out of conduct
not encompassed by an exception. As I said in my partial

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dissent in Dion, “‘[t]he presence of sovereign immunity does
not render the State’s actions nontortious (it simply means that
the State has not consented to suit in its courts with regard to
certain claims).’ . . . The State’s actions are not nonliable.” 311
Neb. at 559, 973 N.W.2d at 692 (Miller-Lerman, J., concurring
in part, and in part dissenting) (emphasis omitted) (citations
omitted). Under the statutes, DHHS is not immune from those
claims arising out of abuse.
As 	explained 	more 	fully 	below 	in 	the 	“Statutory
Interpretation” section and the “Application and Resolution”
section of my dissent, because the district court was under-
standably applying Koepf v. York County, 198 Neb. 67, 251
N.W.2d 866 (1977), which the majority failed to overrule until
today, and quite apart from the beatings and sexual assaults,
I would reverse the judgment and remand the cause with
directions to consider separately the siblings’ allegations of
negligence by DHHS that arose from nonassault abuse by the
foster parents. I would reverse the order of the district court
with respect to the subset of the siblings’ negligence claims
arising from abuse and remand the cause to the trial court for
further proceedings.
FACTS
In addition to the extensive sexual and physical assaults
that are the subject of the majority opinion, the allegations and
trial record detail distinct negligence of DHHS related to the
foster parents’ abuse.
The siblings were in the care and custody of DHHS for a
period of their childhood beginning in 1995. In their com-
plaint, the siblings allege that DHHS breached duties owed
to them when, inter alia, DHHS knew or should have known
that the siblings were being “abuse[d]” while in foster care
at various times, “fail[ed] to properly screen and monitor the
foster home into which the siblings were place[d],” “failed to
follow established policies and procedures in failing to moni-
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failed “to remove [the siblings] from the [foster] home when
[DHHS] had actual or constructive notice of the abuse,” and
failed to supervise the siblings sufficiently to ensure their
health, safety, and welfare. The operative complaint was filed
in 2016.
The siblings presented evidence that DHHS knew that
the foster home had the potential to be dangerous for young
children and that the foster mother’s history of abuse showed
that the foster parents lacked proper judgment. The siblings
presented evidence that during the period they were in DHHS’
care and custody, DHHS was or should have been aware that
the siblings were berated, demeaned, and forced to shower
and undress in front of the foster father, so he could mas-
turbate as he watched. The foster father later confessed to
the police that he sexually abused Sydnie M. and Abigail S.
“a couple of dozen times.” The siblings experienced abuse
around meals and feeding, were isolated from other siblings,
and endured verbal abuse. Both Sydnie and Abigail testified
that they were regularly called stupid, ugly, or worthless. The
siblings had inappropriate access to guns and ammunition in
the foster home. The foster parents attempted to silence the
siblings and, according to the testimony, said that if the abuse
was investigated, “the only thing they’ll be picking up is a
dead body.”
Examples in our record show that the siblings, along with
others reporting on their behalf, sought help from therapists
and DHHS, but were not successful at changing the escalat-
ing abuse. In 1997, DHHS sent a letter to the foster parents
advising them that DHHS had received reports of abuse and
neglect in the home. In 1997, DHHS received a report by a
daycare worker regarding bruising, and the report also relayed
that the foster mother had told a nonplaintiff foster child who
is a half sister of the siblings to pack her bags and leave if
she did not like it in the home. A 1997 report by DHHS stated
that “‘the source of [Sydnie’s] anger and explosive anti-social
feelings needs to be looked at.’” The half sister informed

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her therapist in 1997 that the foster father threatened to beat
her “‘[until] you’re not barely breathing’” and that the foster
mother told her, “[N]obody wants you.’” In 1997, a DHHS
licensing visit at the foster home showed that rifles present
there were unlocked and noted an abuse report on the fos-
ter mother.
After the foster parents became the siblings’ guardians in
1999, a 2004 report stated that the foster mother left the sib-
lings alone for days at a time and that the siblings’ clothes did
not fit them. In 2004, DHHS received another report about
the foster mother, in which it was noted that “[f]or the past
ten years, [which included a period in which the siblings were
in DHHS custody,] reporter has been trying to report abuse/
neglect on [the foster parents].” At that time, DHHS acknowl-
edged that it had received prior intakes “related to abuse and
neglect issues.”
CHILD ABUSE
As discussed more fully below in the “Application and
Resolution” section of this dissent, our cases and statutes
concerning child abuse inform this court’s understanding of
the nature of the siblings’ allegations of “abuse,” which in
common usage describes multiple modes of harm to children.
“Child Abuse” is not synonymous with “assault and battery,”
the latter of which, as we have recognized, requires harmful
or offensive contact. See, Dion v. City of Omaha, 311 Neb.
522, 973 N.W.2d 666 (2022); Restatement (Second) of Torts
§ 13(a) (1965). Child abuse exists separately from assault and
battery, and unlike the majority, I do not conflate the conduct
underlying these two very different harms.
Nebraska law recognizes that not all cases of child abuse
require physical violence or sexual abuse. Neb. Rev. Stat.
§ 28-707 (Reissue 2016). We have observed that our statutes
criminalize a range of physical and mental abuse, neglect,
and endangerment and define abuse with “‘broad and rather
comprehensive 	language.’” 	State 	v. 	Mendez-Osorio, 	297

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Neb. 520, 534, 900 N.W.2d 776, 787 (2017) (quoting State
v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990)). See
§ 28-707. See, also, State v. Ettleman, 303 Neb. 581, 930
N.W.2d 538 (2019).
A person commits child abuse under § 28-707(1) if he or
she knowingly, intentionally, or negligently causes or permits
a minor child to be
(a) Placed in a situation that endangers his or her life or
physical or mental health;
(b) Cruelly confined or cruelly punished;
(c) Deprived of necessary food, clothing, shelter, or
care;
(d) Placed in a situation to be sexually exploited by
allowing, encouraging, or forcing such minor child to
solicit for or engage in prostitution, debauchery, pub-
lic indecency, or obscene or pornographic photography,
films, or depictions;
(e) Placed in a situation to be sexually abused as
defined in section 28-319, 28-319.01, or 28-320.01; or
(f) Placed in a situation to be a trafficking victim as
defined in section 28-830.
Quite apart from assault and battery, § 28-707 includes abuse
that endangers a child’s mental health. Mendez-Osorio, supra.
Abuse presenting as criminal endangerment in § 28-707(1)(a)
encompasses not only conduct directed at the child but also
conduct that presents the likelihood of injury due to the child’s
having been placed in a situation caused by the defendant’s
conduct. See Mendez-Osorio, supra. Furthermore, causing a
child to witness harm is recognized as psychological child
abuse. See Restatement of the Law, Children and the Law
§ 2:22(b) (Tentative Draft No. 3, 2021) (psychological abuse);
Stephanie Holt et al., The Impact of Exposure to Domestic
Violence on Children and Young People: A Review of the
Literature, 32 Child Abuse & Neglect 797 (2008).
Notably, we have recognized that child neglect is also
encompassed within our understanding of child abuse. Neglect

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occurs in the absence of proper parental care, and we have
explained that a parent or someone standing in place of a par-
ent provides “‘proper parental care’” by, inter alia,
“providing a home, support, subsistence, education, and
other care necessary for the health, morals, and well-
being of the child. It commands special care for the
children in special need because of mental condition. It
commands that the child not be placed in situations dan-
gerous to life or limb, and not be permitted to engage in
activities injurious to his health or morals.”
In re Interest of Jeremy U. et al., 304 Neb. 734, 746, 936
N.W.2d 733, 743 (2020) (commenting in adjudication case).
Across the civil, criminal, and juvenile laws, our statutes
and precedent recognize the profound harms caused by child
abuse and acknowledge that child abuse may occur by means
in addition to assault and battery. See, § 28-707; In re Interest
of Janet J., 12 Neb. App. 42, 666 N.W.2d 741 (2003), disap-
proved on other grounds, In re Interest of Jac’Quez N., 266
Neb. 782, 669 N.W.2d 429 (2003) (recognizing that § 28-707
does not require assault or serious bodily injury).
In Mendez-Osorio, supra, we referred to a law journal
article that described the Adverse Childhood Experience (ACE)
study about childhood exposure to domestic violence. See
Lynn Hecht Schafran, Domestic Violence, Developing Brains,
and the Lifespan: New Knowledge From Neuroscience, 53
Judges’ J. 32 (summer 2014). Other courts routinely refer to
ACE’s. For example, in State v. Bright, 200 So. 3d 710, 726
(Fla. 2016), the Supreme Court of Florida referred to ACE
study evidence as identifying 10 factors of trauma and adverse
environments, stating:
The ACE factors indicative of trauma are (1) child-
hood physical abuse; (2) childhood verbal abuse; (3)
childhood sexual abuse; (4) childhood physical neglect;
(5) childhood emotional neglect; and (6) domestic vio-
lence in the household. The factors indicative of an
adverse environment are: (7) parents who are separated

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or divorced; (8) growing up in a household where some-
one is incarcerated; (9) growing up in a household where
there is someone with a serious alcohol or drug problem;
and (10) growing up in a household where there is some-
one with serious mental illness. If a person encounters
just one of those factors, then that person is considered
significantly more at risk for psychological and men-
tal problems. Furthermore, the more factors applicable,
the higher the risk. For instance, an individual who has
experienced five ACE factors is predicted to live twenty
years less than an individual without any ACE factor.
It has also been observed that “[a]n increased number of
ACEs affects a child’s health and brain development.” Tisdale
v. State, 257 So. 3d 357, 363 (Fla. 2018).
As relevant to the instant case, the record contains evidence
that each sibling experienced numerous ACE factors and the
testimony indicates the cumulative harmful effect of these
traumas on the mental health of each of the siblings. Although
the majority opinion seems to recognize that the siblings
have suffered psychological abuse, it has ruled out an award
because it would be difficult to measure the damages. In my
view, difficulty in assessing damage due to ACE factors is not
a viable legal rationale for denying relief.
THE STATE TORT CLAIMS ACT: STATUTORY
CONSTRUCTION IS NOT A MATTER
OF PUBLIC POLICY, AND THE
STATUTE SHOWS DHHS
IS NOT IMMUNE
Through the State Tort Claims Act (STCA), the Nebraska
Legislature has enacted a limited waiver of the State’s sov-
ereign immunity with respect to some, but not all, types of
tort claims. Williams v. State, 310 Neb. 588, 967 N.W.2d 677
(2021). See Neb. Const. art. V, § 22 (“[t]he state may sue
and be sued, and the Legislature shall provide by law in what
manner and in what courts suits shall be brought”). Under the

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definitional section of the Nebraska statutes, a tort “claim”
under the STCA “means any claim against the State . . . 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.” Neb.
Rev. Stat. § 81-8,210(4) (Reissue 2014) (emphasis supplied).
So a “claim” is the name given to an “act” by “any employee
of the state.” Id.
The majority has concluded that DHHS is immune from
this negligence suit by relying on the intentional tort excep-
tion, Neb. Rev. Stat. § 81-8,219(4) (Cum. Supp. 2022), which
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.” See, also, Neb. Rev. Stat.
§ 13-910(7) (Reissue 2012) (comparable provision of Political
Subdivisions Tort Claims Act). According to the majority,
when an exception in the STCA applies, a tort claim is not one
for which the State has consented to be sued. Doe v. State, 312
Neb. 665, 980 N.W.2d 842 (2022). The majority of this court
reads the intentional tort exception broadly and concludes,
as it has since Moser v. State, 307 Neb. 18, 948 N.W.2d
194 (2000), that injuries resulting from assaults caused by
nongovernmental actors are claims to which the exception
applies and that therefore, DHHS is shielded by sovereign
immunity. Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d
666 (2022); Williams, supra; Edwards v. Douglas County, 308
Neb. 259, 953 N.W.2d 744 (2021).
Unlike Moser and its progeny, instead of using the unadorned
word “claim,” which is a statutory word of art in sovereign
immunity cases, the majority herein has started using the
terms “tort claim” and “personal injury claim” to describe the
intentional acts of the foster parents. Perhaps, the majority
has belatedly recognized the fact that “claims” that give rise
to immunity (such as an assault) can only be caused by state
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What is specifically at issue in this case is the language of the
STCA’s exception to the waiver of immunity in § 81-8,219(4),
which states: “Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, or interference with contract rights . . .”
(Emphasis supplied.) The plain language of § 81-8,219(4) lim-
its its application to any “claim.” Section 81-8,210(4) defines
a statutory “claim” as any act by an employee of the state.
Section 81-8,219(4) does not use the expression “[t]ort claim,”
defined in § 81-8,210(4), and reference to “tort claim” by the
majority attempts to substitute “tort claim” and its baggage
for “claim” in § 81-8,219(4) and is a distraction. The excep-
tion in § 81-8,219(4) simply applies to “statutory claim,”
which under § 81-8,210(4) is an act “of any employee of
the state.”
In any event, in this case, there is a statutory “claim” for
negligence against DHHS, but there is no statutory “claim”
of assault by a DHHS employee. No one claims the case-
workers assaulted the siblings. Where there is no statutory
claim of assault by a State actor, there is no exception. See
§ 81-8,210(4) (“claim” covered by STCA is one involving act
by “any employee of the state”). Where there is no statutory
claim of assault by a state employee, there is no intentional
tort exception and there is no immunity based on an intentional
tort. In its order discussing the charges of harm against DHHS,
the district court found that such harm “was not caused by an
‘assault and battery.’”
As recited above, the “claims” covered by the STCA are
those claims that involve “the negligent or wrongful act or
omission of any employee of the state.” § 81-8,210(4). As a
matter of statutory construction, it logically follows that, as
stated by the U.S. Supreme Court:
The exception [of assault and battery] should therefore
be construed to apply only to claims that would oth-
erwise be authorized by the basic waiver of sovereign
immunity. Since an assault by a person who was not

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employed by the Government could not provide the
basis for a claim under the [Federal Tort Claims Act
or the STCA], 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
state] employees.
Sheridan v. United States, 487 U.S. 392, 400, 108 S. Ct. 2449,
101 L. Ed. 2d 352 (1988).
My view continues to be that assaults by state employ-
ees acting within their scope of employment are claims and
fall within the STCA but are relieved by its exemptions;
assaults by nonstate actors are not statutory claims and do
not fall within the STCA. As stated in my dissent in Moser
v. State, 307 Neb. 18, 43-44, 948 N.W.2d 194, 211 (2020)
(Miller-Lerman, J. dissenting), the U.S. Supreme Court case
of Sheridan, supra (to which I subscribe, but the majority
rejects),
has been described as carving out an “exception to an
exception to an exception to a general rule.” CNA v.
United States, 535 F.3d 132, 148 (3d Cir. 2008). The
general rule is sovereign immunity, the first exception is
the [STCA’s] limited waiver of the government’s immu-
nity, the second exception is the intentional tort excep-
tion that reinstates the government’s immunity, and the
third exception is the narrow category of cases, identified
in Sheridan, which may proceed against the sovereign.
As noted, the third category [certain acts of negligence
by state employees] reflects the independent affirmative
duty doctrine.
The majority states that the outcome in this case is a matter
of public policy that could be remedied by the Legislature.
Indeed, the majority has repeatedly suggested the Legislature
could address its Moser-based ruling. See Williams v. State,
310 Neb. 588, 967 N.W.2d 677 (2021). Furthermore, sev-
eral legislative bills have been introduced in recent years
to address the Moser problem. See, 2024 Neb. Laws, L.B.

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25 (vetoed by Governor after legislative session) and L.B.
1192; 2023 Neb. Laws, L.B. 325 and L.B. 341; 2021 Neb.
Laws, L.B. 54. But in my view, this issue is one of statutory
construction, not public policy, and the solution is within the
majority’s grasp. In the absence of ambiguity, statutory inter-
pretation is not a matter of public policy. See Espinoza v. Job
Source USA, 313 Neb. 559, 984 N.W.2d 918 (2023). Absent
such reevaluation by the majority, Nebraskans are bound by
Moser, and I next apply Moser to this case and conclude that
even applying Moser and given the record of abuse, DHHS is
not immune from suit for nonassault abuse-based acts.
STATUTORY INTERPRETATION: APPLICATION OF
ONE EXCEPTION TO WAIVER OF IMMUNITY
DOES NOT BAR OTHER DISTINCT
CLAIMS ARISING FROM OTHER
FACTUAL CIRCUMSTANCES
Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. In re Guardianship of Jill
G., 312 Neb. 108, 977 N.W.2d 913 (2022). Further, under the
legal principle of expressio unius est exclusio alterius, “‘an
expressed object of a statute’s operation excludes the statute’s
operation on all other objects unmentioned by the statute.’”
Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 14, 917
N.W.2d 133, 143 (2018). The exception statute, § 81-8,219(4),
applies only to claims arising out of the enumerated acts of
assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, or interference
with contract rights, and not to a claim arising out of abuse or
other acts not listed.
Distinct Allegations and Proof
Interpreting the federal counterpart to the STCA, 28 U.S.C.
§ 2680(h) (2018), the U.S. Supreme Court has acknowl-
edged that “when one aspect of the Government’s conduct

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is not actionable” under a statutory exception to the waiver
of sovereign immunity, a claimant is not necessarily barred
from pursuing a “distinct claim arising out of other aspects
of the Government’s conduct.” Block v. Neal, 460 U.S. 289,
298, 103 S. Ct. 1089, 75 L. Ed. 2d 67 (1983) (interpreting
language in Federal Tort Claims Act, § 2680(h)). We applied
a similar principle in Woollen v. State, 256 Neb. 865, 593
N.W.2d 729 (1999), abrogated, A.W. v. Lancaster Cty. Sch.
Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010), where we
noted that even though a series of causal events or instru-
ments may include an element that, alone, would be excepted
by § 81-8,219, the STCA does not preclude a tort claim
when it arises out of other acts not enumerated by § 81-8,219
(§ 81-8,219 stating that despite presence of “snow or ice con-
dition[] or other temporary condition[] caused by nature on
any highway” for which that State is immune under excep-
tion, State was not immune if proximate cause of injury was
poor condition of road itself). As I observed in my partial
dissent in Dion v. City of Omaha, 311 Neb. 522, 559, 973
N.W.2d 666, 692 (2022) (Miller-Lerman, J., concurring in
part, and in part dissenting):
“[T]he presence of sovereign immunity does not render
the State’s actions nontortious (it simply means that the
State has not consented to suit in its courts with regard
to certain claims).” Wallace v. Dean, 3 So. 3d 1035, 1045
(Fla. 2009) (emphasis in original). The State’s actions are
not nonliable. See id. The presence of sovereign immu-
nity is distinct from lack of liability. See id.
Similarly, I have previously observed elsewhere that immunity
under one statute does not necessarily indicate that an action
will be barred under another statute with a differing scheme.
Dion, supra (Miller-Lerman, J., concurring in part, and in
part dissenting) (citing Davis v. Harrod, 407 F.2d 1280 (D.C.
Cir. 1969)).
The immunity issue must be evaluated on appeal in light
of the allegations and proof introduced at trial. See Woollen,

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supra. And we have counseled against reading the exception
that precludes liability so broadly that it eclipses the limited
waiver of immunity in the STCA. See Brown v. State, 305
Neb. 111, 939 N.W.2d 354 (2020) (stating that exception
should not be read so broadly that it has judicially expanded
exception). As articulated by the D.C. Court of Appeals, a tort
claim distinct from a claim barred by an intentional tort excep-
tion to the Federal Tort Claims Act is viable if it includes “at
least one distinct element, involving an independent breach
of a standard of care,” that a fact finder may “analyze[] and
consider[] . . . on its own terms apart from the intentional tort
of battery.” See District of Columbia v. Chinn, 839 A.2d 701,
707 (D.C. 2003) (discussing negligence claim not based on
excepted excessive force claim).
Georgia courts have interpreted the intentional tort excep-
tion to the waiver of sovereign immunity in The Georgia Tort
Claims Act, Ga. Code Ann. § 50-21-24 (7) (2009), in a manner
unlike the U.S. Supreme Court in Sheridan v. United States,
487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 352 (1988), but
similar to the majority’s reading of the STCA announced in
Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020), which
the majority applies yet again today. The cases in Georgia
under a Moser-like scheme are instructive. The Georgia inten-
tional tort exception provides that the state shall have no
liability for losses resulting from “[a]ssault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, or interference with contractual rights.”
§ 50-21-24(7). The Georgia courts considering whether the
state has waived its immunity focus on the nature of “the act
causing the underlying loss regardless of who committed the
act.” Youngblood v. Gwinnett Rockdale, Etc., 273 Ga. 715,
717, 545 S.E.2d 875, 878 (2001). Thus, Georgia courts focus
on whether the damage was suffered exclusively because of
the assault and battery, as distinguished from other causes. See
Beasley v. Georgia Dept. of Corrections, 360 Ga. App. 33, 861
S.E.2d 106 (2021).

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A federal district court in Georgia applied Georgia law to a
complex case against Georgia’s department of human services
involving child abuse, where the state had placed a child into
the custody of a couple who abused her and ultimately killed
her. Daniel v. Georgia Dept. of Human Services, 420 F. Supp.
3d 1350 (N.D. Ga. 2019). The custodian asserted that the
child’s death occurred after the child choked on a “chicken
tender” and the custodian “performed the Heimlich maneuver”
and hit the child on the back to dislodge the food. Id. at 1362.
Autopsy records showed that the child’s body was battered
and beaten, but also showed that the child suffered from blunt
impact injuries to her torso that “‘reflect inflicted trauma.’”
Id. The court noted that the Georgia intentional tort exception
could immunize the state from liability for the custodian’s
having killed the child if the child’s death resulted solely from
an assault or battery. Id. However, because it was possible that
a fact finder could find liability based on other acts for which
the state would be responsible, the application of the assault
and battery exception was a triable question. That is, just
because assault is in the picture, it does not preclude liability
on another basis.
The majority has concluded that there is no harm that was
“separate and distinct” from physical and sexual assaults. The
majority concludes analytically that “but for” the assaults,
there are no injuries. On this record, I cannot agree. As I stated
in my dissent in Moser:
The “but for” rationale adopted by the majority suf-
fers from several defects, including confusing “claim”
with “injury.” Not only is it belied by the language of
the statute [defining “claim”] discussed above, but it
ignores a basic precept of tort law that one injury “can
arise from more than one wrongful act[s]”—in this case,
a negligence “claim” which is distinct from an assault.
See Sheridan v. United States, 487 U.S. 392, 405, 108
S. Ct. 2449, 101 L. Ed. 2d 352 (1988) (Kennedy, J.,
concurring). See, also, 1 Restatement (Third) of Torts:

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Liability for Physical and Emotional Harm § 34 (2010).
An event may have more than one proximate cause. See
1 Restatement (Third), supra. An intentional act inter-
vening between a negligent act and the result does not
always vitiate liability for the negligence. Id. A supersed-
ing cause of harm will not excuse an actor’s negligence
where the actor should have realized the likelihood that
such a situation might be created and the third person
might avail himself of the opportunity to commit such a
tort or crime. Id. As Justice Kennedy stated in Sheridan,
the “but for” approach adopted by the Sheridan dissent
(and by this court’s majority) implies that the “intentional
act somehow obliterates the legal significance of any neg-
ligence [or abuse] that precedes or follows it.” 487 U.S. at
406 (Kennedy, J., concurring).
307 Neb. at 42, 948 N.W.2d at 210 (Miller-Lerman, J.,
dissenting).
In line with the foregoing authorities, I conclude that when
an action against the State includes proof of abuse that is
separate and distinct from the intentional torts of assault or
battery, the intentional tort exception does not preclude liabil-
ity for the abuse. The actions of DHHS are not nonliable.
Example of Proof of Distinct Abuse
The majority opinion repeatedly states that all claims of
abuse in this case are the result of either an assault or battery
or are so intertwined with an assault or battery that DHHS
is exempt from liability under the statutory exemption for
intentional acts. That is, in the majority’s view, there are no
instances of abuse that are independent of an assault or bat-
tery. The majority opinion suggests that under § 81-8,219(4),
once assault and battery are in the picture, all acts of abuse
arise therefrom and the intentional act somehow obliterates
the legal significance of other acts. I disagree with the major-
ity’s reading of the statute and do not believe such reading is
what the Legislature intended. Echoing our opinion in Brown

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v. State, 305 Neb. 111, 122, 939 N.W.2d 354, 362 (2020), the
majority’s opinion has read the exception so broadly that it has
“judicially expand[ed] the . . . exception.”
As to the majority view that there is no act of abuse sepa-
rate and distinct from assault and battery, I believe the record
refutes this assertion and that to the contrary, there is testimony
regarding incidents not necessarily directed toward the sib-
lings. By way of example, I refer to the following testimony of
Abigail regarding the foster father’s hurting pet dogs:
[Abigail:] And then another incident I can think of that
wasn’t necessarily towards us children in the home, but
if the dogs - they had weiner dogs, Dachshund dogs, if
they would do anything naughty, they would take the dog
and shove it in the trash can as hard as they could to hurt
the dog and the dog’s nose if it did anything bad.
[Counsel:] Did they do that often?
[Abigail:] Yes. Anytime the dog did anything that was
— they didn’t like, you know, the dog maybe got excited
and peed a little bit or was in their way when they were
walking or if — you know, just anything that you could
think of that would annoy them, they would do that to
a dog.
According to an article quoting Professor Margaret Drew
of the University of Massachusetts Law School, “[s]ome-
times animals are abused in front of kids,” which “‘keeps
the children under the abuser’s control as well.’” Julianne
Hill, Animal Abuse and Domestic Violence Can Go Hand in
Hand, 109 A.B.A. J. 57 (2023). The cases are in accord. E.g.,
People v. Bishop, No. F076745, 2022 WL 1420932 (Cal. App.
May 5, 2022) (unpublished opinion) (stating abuse of dogs in
presence of family member constitutes domestic violence). In
People v. Kovacich, 201 Cal. App. 4th 863, 895 133 Cal. Rptr.
3d 924, 951 (2011), the defendant admitted that he “‘went
overboard’” kicking the family dog as a form of discipline
after it “got into” some garbage. However, he stated that he
did not believe the dog died from the kicking and that family

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members’ seeing him kick the dog was “not ‘out of the ordi-
nary.’” Id. The opinion continued that in an abusive relation-
ship, “harming an animal is ‘a very high-level threat to the
victim as to the ability of the perpetrator to not only threaten
to do something incredibly harmful but to actually act it out
in front of them.’” Id. The court ruled that this behavior
was an “abuse . . . committed against [the defendant’s] wife
and children,” who witnessed the act, which “amounted to
‘domestic violence’” within the California statutes. Id.
Similarly, in the present case, the siblings suffered abuse
separate and distinct from assault and battery by witness-
ing the dog’s being harmed. This exemplifies a circumstance
we anticipated in Edwards v. Douglas, 308 Neb. 259, 279,
953 N.W.2d 744, 757 (2021), “where the claim . . . cannot
fairly be characterized as arising out of the assault” and bat-
tery. Therefore, the injuries of the siblings that do not arise
from assault and battery upon the siblings do not give rise
to immunity.
APPLICATION AND RESOLUTION
As observed in my discussion above, by applying Moser v.
State, 307 Neb. 18, 948 N.W.2d 194 (2020), the majority has
concluded that the acts of assault and battery perpetuated by
nongovernmental persons immunize DHHS. But even under
Moser, as long as the bad acts in this case are not exclusively
those excepted under the intentional tort exception for assault
or battery, § 81-8,219(4), DHHS is not completely immunized.
So, if this case is about abuse as distinguished from assault
and battery, DHHS is not immune. I conclude that this case
involves actionable abuse and that DHHS is not immune from
negligence arising from the abuse.
As discussed above, abuse is different from assault and
battery. Indeed, the American Law Institute has taken the
position that “psychological abuse is the most widely under-
reported form of child maltreatment even though some experts
conclude that it is the most harmful and has the longest

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lasting, and potentially permanent, effects.” Restatement of
the Law, Children and the Law § 2.22, comment a. (Tentative
Draft No. 3, 2021). And we have recognized that some claims
can be sufficiently attenuated from an assault such that they
are not encompassed by the intentional tort exception. See
Edwards, supra.
Nebraska case law and statutes are informative. As noted
above, we have defined “abuse” with “‘broad and rather com-
prehensive language.’” State v. Mendez-Osorio, 297 Neb. 520,
534, 900 N.W.2d 776, 787 (2017). As further noted above,
§ 28-707 includes abuse that endangers a child’s mental, as
well as physical, health. Abuse includes being deprived of nec-
essary food, clothing, shelter, or care. § 28-707. Child abuse
differs from assault and battery, the latter of which generally
includes physical contact or violence.
The complaint and the evidence at trial amply show that
the foster parents abused the siblings. As recited above, the
complaint alleged that DHHS breached duties owed to the
siblings when, inter alia, DHHS knew or should have known
that they were being “abuse[d]” while in foster care at vari-
ous times, failed “to properly screen and monitor the foster
home into which the siblings were place[d],” failed “to follow
established policies and procedures in failing to monitor the
[siblings’] care,” failed “to keep [the siblings] safe,” failed “to
remove [the siblings] from the [foster] home when [DHHS]
had actual or constructive notice of the abuse,” and failed to
supervise the siblings sufficiently to ensure their health, safety,
and welfare.
Also, as recited above, the evidence at trial showed, as the
siblings claimed, that during the period they were in DHHS’
care and custody, DHHS was or should have been aware that
the siblings were berated, demeaned, starved, and forced to
shower and undress in front of the foster father. The siblings
experienced abuse around meals and feeding, were isolated
from other siblings, and endured verbal abuse. Both Sydnie
and Abigail testified that they were regularly called stupid,

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ugly, or worthless. The siblings had inappropriate access to
guns and ammunition in the foster home. The foster parents
attempted to silence the siblings and, according to the testi-
mony, said that if the abuse were investigated, “the only thing
they’ll be picking up is a dead body.” This case involves abuse
independent and distinct from assault and battery.
I believe the majority’s conclusion that the siblings have
not demonstrated harm “separate and distinct” from that
caused by physical and sexual assaults of the siblings is not
an accurate reflection of the record. The approach of the
majority ignores a pattern of child abuse that is factually
distinct from the physical and sexual assaults the siblings
experienced in the foster home. As explained above, acts of
abuse are not enumerated in the intentional tort exception
to the waiver of sovereign immunity in § 81-8,219(4) and
should be considered on their own apart from the intentional
torts of assault and battery. Considered on its own, abuse is a
separate and distinct basis of liability, and even under Moser
v. State, 307 Neb. 18, 948 N.W.2d 1194 (2020), DHHS is not
immune from negligence based on the emotional abuse by the
foster parents.
CONCLUSION
When the siblings filed their complaint in 2015, Koepf v.
County of York, 198 Neb. 67, 251 N.W.2d 866 (1977), had
been controlling precedent for nearly 40 years and held that
the assault and battery exception did not apply to a claim
of negligent foster care placement or supervision. After the
siblings, relying on Koepf, presented their case in chief and
rested, DHHS brought the recently filed Moser opinion to the
district court’s attention. Although Moser may have cast doubt
on Koepf, it did not explicitly overrule that precedent.
The parties and the district court have been caught in the
midst of this evolving legal framework. In view of the major-
ity’s conclusion today overruling Koepf and the changed
circumstances created thereby, rather than dismiss, I would

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remand the cause and afford the siblings and the district court
an opportunity to evaluate the cause within the new legal
landscape. We have recognized that the appellate court has
the power to vacate an order for which there is no jurisdiction
and remand the cause with appropriate directions. See Davis
v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021). One appel-
late court has observed that in the interest of justice, “‘[t]he
most compelling case for such a remand is where we overrule
existing precedents on which the losing party relied at trial.’”
Bulanek v. WesTTex 66 Pipeline Co., 209 S.W.3d 98, 100
(Tex. 2006).
While under the eye of DHHS and in its custody, the sib-
lings were beaten, sexually assaulted, and emotionally abused
by the foster parents. The people paid to keep them safe
delivered fear. As explained above, in my view, even under
the Moser line of cases created by the majority, the siblings
can sue the State for damages caused by the nonassault cruel
emotional abuse. However, under the majority’s reading of the
statutes, they cannot sue the State. Is this what the Legislature
intended?