Britton v. City of Crawford

Howard’s sentence is well within the statutory limits and
is consistent with the nature of the crime and his prior crimi-
nal history. Nothing in our sentencing guidelines requires a
judge to consider the sentences imposed on codefendants.
The district court did not abuse its discretion in imposing
Howard’s sentence.
IV. CONCLUSION
Pelster had reasonable suspicion to detain the vehicle after
the traffic stop, and the length of the continued detention was
not unreasonable. There is sufficient evidence of Rocky’s train-
ing, certification, and field accuracy in the record to support
the district court’s factual finding that the results of the canine
sniff were admissible. The reasonable suspicion factors com-
bined with the alert by the trained canine constituted probable
cause to search the vehicles.
Howard did not enter a de facto guilty plea when he partici-
pated in the stipulated bench trial, and his trial counsel was not
ineffective. There is sufficient evidence to support the convic-
tions of both Laws and Howard, and Howard’s sentence was
not excessive.
We affirm the judgment of the district court in each appeal.
A ffirmed.
H eAvicAn, C.J., not participating.
PAt Britton, P ersonAl rePresentAtive of tHe estAte
of Jesse Britton, deceAsed, APPellAnt, v. city
of crAwford, A neBrAskA PoliticAl
suBdivision, APPellee .
803 N.W.2d 508
Filed September 23, 2011. 	No. S-10-1013.
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings. Because a
motion pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) tests the legal sufficiency of
the complaint, not the claim’s substantive merits, a court may typically look only
at the face of the complaint to decide a motion to dismiss.
2. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R. Pldg.
§ 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff
374 	282 NeBRaSka RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

includes allegations that show on the face of the complaint that there is some
insuperable bar to relief.
3. Pleadings: Appeal and Error. an appellate court reviews de novo a lower
court’s dismissal of a complaint for failure to state a claim.
4. ____: ____. When analyzing a lower court’s dismissal of a complaint for failure
to state a claim, an appellate court accepts the complaint’s factual allegations as
true and construes them in the light most favorable to the plaintiff.
5. Summary Judgment: Motions to Dismiss: Rules of the Supreme Court:
Pleadings. When matters outside of the pleadings are presented by the parties
and accepted by the trial court with respect to a motion to dismiss under Neb.
Ct. R. Pldg. § 6-1112(b)(6), the motion shall be treated as a motion for summary
judgment as provided in Neb. Rev. Stat. §§ 25-1330 to 25-1336 (Reissue 2008),
and the parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by statute.
6. Summary Judgment: Appeal and Error. an appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
7. Summary Judgment: Motions to Dismiss: Notice. When receiving evidence
which converts a motion to dismiss into a motion for summary judgment, it is
important that the trial court give the parties notice of the changed status of the
motion and a reasonable opportunity to present all material made pertinent to
such a motion by the rules governing summary judgment.
8. Political Subdivisions Tort Claims Act: Immunity: Waiver. The Political
Subdivisions Tort Claims act allows a limited waiver of a political subdivision’s
sovereign immunity. This waiver is limited by specifically delineating claims that
are exempt from being brought against a political subdivision.
9. Political Subdivisions Tort Claims Act: Public Officers and Employees.
Where a claim against a political subdivision is based upon acts or omissions of
an employee occurring within the scope of employment, it is governed by the
provisions of the Political Subdivisions Tort Claims act.
10. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of
sovereign immunity of the State or its subdivisions are strictly construed in favor
of the sovereign and against the waiver.
11. Immunity: Waiver. a waiver of sovereign immunity is found only where stated
by the most express language of a statute or by such overwhelming implication
from the text as will allow no other reasonable construction.
appeal from the District Court for Dawes County: leo
doBrovolny, Judge. affirmed.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister,
Snyder & Chaloupka, for appellant.
Steven W. Olsen and John F. Simmons, of Simmons Olsen
Law Firm, P.C., for appellee.
BRITTON v. CITy OF CRaWFORD 	375
Cite as 282 Neb. 374

H eAvicAn, c.J., connolly, G errArd, stePHAn, mccormAck ,
and miller-lermAn, JJ.
mccormAck , J.
I. NaTURe OF CaSe
Pat Britton filed this action as personal representative of
the estate of Jesse Britton (Jesse), deceased, against the City
of Crawford (the City) under the Political Subdivisions Tort
Claims act (PSTCa), Neb. Rev. Stat. §§ 13-901 to 13-927
(Reissue 2007 & Cum. Supp. 2010). The district court for
Dawes County granted the City’s motion to dismiss, and
Britton appealed. The issue on appeal is whether the City is
immune from liability under § 13-910(7), which provides that
the PSTCa shall not apply to any claim arising out of a battery.
For the following reasons, we affirm the determination of the
district court.
II. BaCkGROUND
1. fActuAl BAckGround
In 2007, Jesse was a suspect in several burglaries, includ-
ing one involving a stolen firearm. He was 16 years of age.
Richard Thompson, a police officer for the City, and Dan
kling, a conservation officer with the Nebraska Game and
Parks Commission, investigated the burglaries. On October 3,
2007, Thompson and kling received information that Jesse was
hiding in downtown Crawford in a vacant building called the
Frontier Bar. Thompson was also told that Jesse had threatened
to shoot Thompson.
Thompson obtained permission to enter the bar. Thompson
arrived at the bar and assigned two officers to secure the
exterior of the bar at the northeast and southwest corners of
the building. Thompson asked kling to assist him in search-
ing the interior of the bar and requested that kling carry
his state-issued shotgun. Thompson and kling then used the
Realtor’s keys to enter the building. Neither party requested
any additional assistance from the State Patrol or the county
sheriff’s office.
after entering the bar, Thompson and kling heard footsteps
on the second floor. They proceeded upstairs and saw Jesse
crouched behind a piece of furniture. Thompson and kling
376 	282 NeBRaSka RePORTS

shouted commands at Jesse, yelling at Jesse to show them his
hands and drop the gun, but Jesse refused to comply. Jesse
then “sprang up pointing his gun” at Thompson. Thompson and
kling both shouted at Jesse to drop the gun and show them his
hands. after Jesse failed to comply with the commands to drop
the gun, Thompson and kling shot him. Ten to twelve minutes
passed between the time Thompson and kling entered the bar
and the time shots were fired.
2. P rocedurAl BAckGround
(a) Criminal Trial
On November 20, 2007, Thompson was indicted for sec-
ond degree assault pursuant to Neb. Rev. Stat. § 28-309(1)(b)
(Reissue 2008). The criminal case was tried to the district
court. The court determined that Thompson had acted in self-
defense and found that Thompson was not guilty. In so finding,
the court stated:
[T]he Court must reach the conclusion that [Jesse] did,
in fact, point the pistol at [Thompson], at which time the
events ensued resulting in the death of Jesse . . . . The
Court can only conclude that [Thompson] was acting in
self-defense in the situation that presented itself. Thus,
the Court cannot find that [Thompson] acted recklessly in
his firing of his weapon which resulted in [Jesse’s] being
struck by his bullet.
(b) Federal Case
On September 11, 2008, Britton, Jesse’s mother and per-
sonal representative of his estate, filed suit against the City,
Thompson, and kling in the U.S. District Court for the District
of Nebraska under 42 U.S.C. § 1983 (2006) and under the Due
Process and equal Protection Clauses of the U.S. Constitution.
The suit also included the state common-law negligence claim
at issue in the present appeal. Britton alleged in the federal
case that the defendants’ actions violated Jesse’s constitutional
rights and that the defendants’ negligence was the proximate
cause of Jesse’s death.
The U.S. District Court granted the defendants’ motion
for summary judgment on the basis of qualified immunity.
BRITTON v. CITy OF CRaWFORD 	377
Cite as 282 Neb. 374

The federal claims were dismissed with prejudice. The court
dismissed the common-law claims without prejudice, stat-
ing that it would not exercise ancillary jurisdiction over the
claims because the federal character of the complaint had
been eliminated.
(c) State Negligence Claim
On November 30, 2009, Britton filed suit against the City on
the common-law negligence claims. The operative complaint
alleged that negotiation, nonviolent de-escalation techniques,
and conflict resolution techniques were the appropriate and
reasonable means of dealing with any perceived “‘standoff’”
at the Frontier Bar. The complaint alleged that the shooting
of Jesse was proximately caused by the City’s negligence
in (1) failing to seek Jesse’s removal from the bar through
less aggressive, less provocative means; (2) failing to follow
recognized procedures for dealing with barricaded subjects;
(3) failing to seek the assistance of other law enforcement
resources in order to produce Jesse’s removal from the bar
through nonviolent means; (4) failing to seek the assistance of
Jesse’s family, friends, or other persons Jesse trusted in order
to produce Jesse’s removal from the bar through nonviolent
means; and (5) otherwise selecting tactics for confronting Jesse
that a reasonable law enforcement officer would recognize to
be “high-risk, provocative, and likely to frighten and intimi-
date a barricaded teenager” such as Jesse. Britton also sought
damages for Jesse’s pain and suffering in the time between the
beginning of the standoff and the time of his death.
The City challenged the complaint on a motion under Neb.
Ct. R. Pldg. § 6-1112(b)(6) of the Nebraska Court Rules of
Pleading in Civil Cases, alleging that it failed to state a cause
of action upon which relief could be granted and that the
statute of limitations barred Britton’s claims. at the hearing
on the City’s motion to dismiss, Britton was allowed to offer
evidence. The City argued that the complaint alleged assault
and battery and that, pursuant to the PSTCa, a political sub-
division cannot be held liable for such acts as a matter of law.
The City offered no evidence. Britton offered the complaint,
answer, and memorandum and order of the U.S. District Court
from the federal case, as well as the grand jury indictment
378 	282 NeBRaSka RePORTS

and order from Thompson’s criminal case. The court admitted
the evidence offered by Britton and subsequently granted the
City’s motion to dismiss. The court determined that the claim
was barred by the battery exception to the PSTCa.1 The court
did not rule on the statute of limitations issue, because it was
not necessary to decide the case. Britton appeals.
III. aSSIGNMeNT OF eRROR
Britton assigns that the district court erred in sustaining the
City’s motion to dismiss.
IV. STaNDaRD OF ReVIeW
[1-4] Because a motion pursuant to § 6-1112(b)(6) tests the
legal sufficiency of the complaint, not the claim’s substan-
tive merits, a court may typically look only at the face of the
complaint to decide a motion to dismiss.2 Dismissal under
§ 6-1112(b)(6) should be granted only in the unusual case in
which a plaintiff includes allegations that show on the face
of the complaint that there is some insuperable bar to relief.3
an appellate court reviews de novo a lower court’s dismissal
of a complaint for failure to state a claim.4 When analyzing
a lower court’s dismissal of a complaint for failure to state a
claim, an appellate court accepts the complaint’s factual allega-
tions as true and construes them in the light most favorable to
the plaintiff.5
[5,6] However, § 6-1112(b) provides that when matters out-
side of the pleadings are presented by the parties and accepted
by the trial court with respect to a motion to dismiss under
§ 6-1112(b)(6), the motion “shall be treated” as a motion for
summary judgment as provided in Neb. Rev. Stat. §§ 25-1330
to 25-1336 (Reissue 2008), and the parties shall be given rea-
sonable opportunity to present all material made pertinent to
such a motion by statute. Our review of an order granting a
1 See § 13-910(7).
2 Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
3 Id.
4 Id.
5 Id.
BRITTON v. CITy OF CRaWFORD 	379
Cite as 282 Neb. 374

motion for summary judgment is not restricted to the allega-
tions of the complaint, but instead requires that we determine
whether the pleadings and admissible evidence offered at the
hearing show that there is no genuine issue as to any material
fact or the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.6
[7] as a threshold matter, we must determine whether we
are reviewing a ruling on a motion to dismiss or a ruling on
a motion for summary judgment. We have recognized that
when receiving evidence which converts a motion to dismiss
into a motion for summary judgment, it is important that the
trial court “‘give the parties notice of the changed status of the
motion and a “reasonable opportunity to present all material
made pertinent to such a motion”’ by the rules governing sum-
mary judgment.”7
In this case, the district court granted Britton’s request to
submit evidence. The City requested that the court take notice
that the receiving of evidence converted the motion to dismiss
to a motion for summary judgment. Britton did not object to
the City’s request, and the court allowed the parties a reason-
able opportunity to present all material pertinent to a motion
for summary judgment. accordingly, we apply the standard of
review applicable to orders granting summary judgment, as set
forth above.
V. aNaLySIS
[8] The PSTCa allows a limited waiver of a political sub-
division’s sovereign immunity with respect to certain, but not
all, types of tort actions.8 This waiver is limited by specifically
delineating claims that are exempt from being brought against
a political subdivision such as the City.9
6 Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873
(2010).
7 Doe v. Omaha Pub. Sch. Dist., supra note 2, 273 Neb. at 83, 727 N.W.2d
at 452, quoting 5C Charles alan Wright & arthur R. Miller, Federal
Practice and Procedure § 1366 (3d ed. 2004).
8 See Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010).
9 See § 13-910(1) through (12).
380 	282 NeBRaSka RePORTS

[9] Where a claim against a political subdivision is based
upon acts or omissions of an employee occurring within the
scope of employment, it is governed by the provisions of the
PSTCa.10 Britton does not allege, nor does she argue, that
Thompson and kling acted outside the scope of their employ-
ment at the time of the alleged negligence. Britton argues that
her claim alleged that the City breached its duty of care in its
handling of a “barricaded suspect situation.”11
The district court determined that “the assault and battery
exception in the [PSTCa] found at §13-910(7) applies and
bars the action.” This exception to the general waiver of the
PSTCa, sometimes called the intentional torts exception, pro-
vides that the PSTCa shall not apply to “[a]ny claim arising
out of assault, battery, false arrest, false imprisonment, mali-
cious prosecution, abuse of process, libel, slander, misrepresen-
tation, deceit, or interference with contract rights.”12
[10,11] Statutes that purport to waive the protection of sov-
ereign immunity of the State or its subdivisions are strictly
construed in favor of the sovereign and against its waiver.13 a
waiver of sovereign immunity is found only where stated by
the most express language of a statute or by such overwhelm-
ing implication from the text as will allow no other reason-
able construction.14
1. BAttery
The City maintains that the intentional torts exception bars
Britton’s claims because they arise out of a battery. Britton
argues that the City cannot rely on the intentional torts excep-
tion because Thompson pled not guilty to the criminal assault
charge. as stated above, the district court found Thompson not
guilty on the basis of self-defense.
We first address whether Thompson’s and kling’s actions
qualify as a battery as it is contemplated in § 13-910(7). In
10 See McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009).
11 Brief for appellant at 11.
12 § 13-910(7).
13 Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005).
14 Id.
BRITTON v. CITy OF CRaWFORD 	381
Cite as 282 Neb. 374

Nebraska, the intentional tort of battery is defined as “‘an
actual infliction’ of an unconsented injury upon or unconsented
contact with another.”15 We have also recognized the defini-
tion of battery as “any intentional, unlawful physical violence
or contact inflicted on a human being without his consent.”16
These definitions are not inconsistent. We have noted, regard-
ing the requirement that the contact be “‘unlawful,’” that such
contact is “‘an angry, rude, insolent, or revengeful touching of
the person . . . .’”17
“Unlawful” is a legal term. a contact is unlawful if it is
unconsented to.18 The Restatement (Second) of Torts19 does not
use the term “unlawful” in its definition of battery and states:
an actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or
an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other
directly or indirectly results.
a 	harmful 	contact 	intentionally 	done 	is 	the 	essence 	of
battery.20
In discussing the intentional torts exception to the PSTCa,
we have not analyzed whether an affirmative defense would
remove an intentional tort from coverage under the exception.
We conclude that such an analysis is not appropriate for the
determination of whether certain claims fall under the excep-
tion found in § 13-910(7). The plain language of the excep-
tion excludes an enumerated list of intentional torts. On its
face, it does not contemplate whether such intentional acts are
legally justified. Nor does the exception state that the waiver of
15 Bergman v. Anderson, 226 Neb. 333, 336, 411 N.W.2d 336, 339 (1987).
16 State v. Washington, 232 Neb. 838, 839, 442 N.W.2d 395, 396 (1989).
17 Newman v. Christensen, 149 Neb. 471, 474, 31 N.W.2d 417, 418 (1948).
18 See, In re Baldwin, 245 B.R. 131 (9th Cir. 2000), affirmed 249 F.3d 912
(9th Cir. 2001); 6 am. Jur. 2d Assault and Battery § 5 (2008).
19 Restatement (Second) of Torts § 13 at 25 (1965).
20 See Newman v. Christensen, supra note 17. See, also, Barouh v. Haberman,
26 Cal. app. 4th 40, 31 Cal. Rptr. 2d 259 (1994).
382 	282 NeBRaSka RePORTS

sovereign immunity only applies to claims based on intentional
torts for which the actor could be held liable. Furthermore, we
have consistently recognized that the key requirement of the
intentional torts exception is that the actor intended the con-
duct.21 If the conduct was unintentional or negligent, it falls
outside of the scope of the exception. accordingly, we hold
that in deciding whether conduct falls within the “battery”
exception of § 13-910(7), it is only necessary to determine
whether the conduct “aris[es] out of” a battery. We need not
determine whether the actor ultimately could be held liable for
any damage resulting from the battery, based on the presence
or absence of affirmative defenses.
Britton argues that Thompson defended against the crimi-
nal charges by “pleading and admitting that his actions were
not intentional.”22 This is a mischaracterization of the record.
Thompson did plead not guilty. However, the plea was based
on self-defense. Thompson did not argue that he accidentally or
unintentionally shot Jesse. By invoking the affirmative defense,
Thompson admitted that he intended to shoot Jesse, but that
he should not be held criminally liable for his actions because
they were legally justified.23
The shooting at issue in this case constituted a battery
as that tort is defined in Nebraska and as contemplated by
§ 13-910(7). Thompson’s admission that his actions were
intentional supports our determination that the shooting was a
battery. as noted above, our previous analysis of the intentional
torts contemplated in § 13-910(7) has focused on whether the
actor intended the acts alleged in the claim. There is no allega-
tion that Thompson and kling did not intend to shoot Jesse.
Thompson and kling intended to shoot Jesse, and the shoot-
ing qualifies as a battery under Nebraska law. We therefore
address whether the claims alleged by Britton arise out of
the battery.
21 See McKenna v. Julian, supra note 10.
22 Brief for appellant at 22-23 (emphasis in original).
23 See State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
BRITTON v. CITy OF CRaWFORD 	383
Cite as 282 Neb. 374

2. “A risinG out of ” BAttery
In Johnson v. State,24 this court addressed the intentional
torts exception contained in the State Tort Claims act,25 which
is identical to the exception articulated in § 13-910(7) of the
PSTCa. Johnson involved a negligence claim asserted against
the State of Nebraska for a failure to supervise, hire, and dis-
cipline. This court determined that the claim in Johnson was
barred because it arose out of assault and battery and that a
failure to supervise, hire, and discipline was simply a way to
reframe the claim.
Britton does not contend that Jesse’s death was the result
of negligent supervision or hiring, and therefore, Johnson is
distinguishable on these facts. However, in Johnson, we ana-
lyzed the statutory language “arising out of assault.”26 Our
analysis here must similarly apply the meaning of the phrase
“arising out of battery.” The phrase “arising out of” battery
as it is used in § 13-910(7) creates a broader exemption than
that which would be created by use of the language “for a bat-
tery.”27 Britton’s argument is primarily one of characterizing
or framing the pleaded conduct as negligence even though the
injuries suffered by Jesse were the result of a battery, an inten-
tional tort.
In Johnson,28 we adopted the reasoning of four of the
eight participating justices in United States v. Shearer,29 who
concluded:
“[The plaintiff] cannot avoid the reach of [the inten-
tional torts exception] by framing her complaint in terms
of negligent failure to prevent the assault and battery.
[The exception] does not merely bar claims for assault
24 Johnson v. State, supra note 13.
25 See Neb. Rev. Stat. § 81-8,219(4) (Reissue 2008).
26 Johnson v. State, supra note 13.
27 Id.; Hammond v. Nemaha County, 7 Neb. app. 124, 581 N.W.2d 82
(1998).
28 Johnson v. State, supra note 13, 270 Neb. at 320, 700 N.W.2d at 624
(emphasis in original).
29 United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. ed. 2d 38
(1985).
384 	282 NeBRaSka RePORTS

or battery; in sweeping language it excludes any claim
arising out of assault or battery. We read this provision to
cover claims like [the plaintiff’s] that sound in negligence
but stem from a battery committed by a Government
employee.”
and we further agreed:
“To determine whether a claim arises from an intentional
assault or battery and is therefore barred by the exception,
a court must ascertain whether the alleged negligence was
the breach of a duty to select or supervise the employee-
tortfeasor or the breach of some separate duty indepen-
dent from the employment relation. . . . If the allegation
is that the Government was negligent in the supervision
or selection of the employee and that the intentional tort
occurred as a result, the intentional tort exception . . . bars
the claim. Otherwise, litigants could avoid the substance
of the exception because it is likely that many, if not
all, intentional torts of Government employees plausibly
could be ascribed to the negligence of the tortfeasor’s
supervisors. To allow such claims would frustrate the pur-
poses of the exception.”30
In Westcott v. City of Omaha,31 the eighth Circuit Court
of appeals addressed the intentional torts exception of the
Nebraska PSTCa. The plaintiff in Westcott alleged that an
officer was negligent in his mistaken assumption that a suspect
was armed, which in fact he was not. The officer based his
decision to shoot on this assumption, and the shooting resulted
in the suspect’s death. The eighth Circuit determined that the
allegedly negligent assumption was “inextricably linked” to
battery; therefore, the suit was barred by the PSTCa.32
Britton alleged in her amended complaint and argues on
appeal that the “barricaded suspect situation”33 imposed a
30 Johnson v. State, supra note 13, 270 Neb. at 322, 700 N.W.2d at 625, quot-
ing Sheridan v. United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. ed.
2d 352 (1988) (kennedy, J., concurring in judgment).
31 Westcott v. City of Omaha, 901 F.2d 1486 (8th Cir. 1990).
32 Id. at 1490.
33 Brief for appellant at 11.
BRITTON v. CITy OF CRaWFORD 	385
Cite as 282 Neb. 374

standard of care for law enforcement and that the present tort
claim is based on the City’s handling of and decisionmak-
ing in such a situation. This court has stated that where a
plaintiff’s tort claim is based on the mere fact of government
employment (such as a respondeat superior claim) or on the
employment relationship between the intentional tort-feasor
and the government (such as a negligent supervision or negli-
gent hiring claim), the intentional torts exception applies and
the political subdivision is immune from suit.34 Britton’s claims
are similarly based on the mere fact of Thompson’s and kling’s
government employment. as the basis for her claims, Britton
alleges conduct of Thompson and kling while acting within
the scope of their employment. Britton does not plead any facts
that would explain how the City would be liable without the
connection of the employment relationship between Thompson,
kling, and the City. Therefore, the City is protected by sover-
eign immunity.
While other factors may have contributed to the situation
which resulted in Jesse’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 Jesse’s
death and, consequently, the basis of Britton’s claim. even if it
is possible that negligence was a contributing factor to Jesse’s
death, the alleged negligence was inextricably linked to a bat-
tery. Britton’s suit is thus barred by the PSTCa.
VI. CONCLUSION
For the foregoing reasons, we determine that the pleadings
and admissible evidence offered at the hearing show that the
City is immune from Britton’s suit pursuant to § 13-910(7).
accordingly, we affirm the district court’s determination that
the City is entitled to judgment as a matter of law.
A ffirmed.
wriGHt, J., not participating.
34 Johnson v. State, supra note 13.
386 	282 NeBRaSka RePORTS