Tolbert v. Omaha Housing Authority

A lice TolberT And chAz TolberT, P ersonAl rePresenTATives
of The esTATes of vicToriA lynn TolberT burgess And
T ishA cAssAndrA TolberT, eT Al ., APPellAnTs , v .
omAhA housing A uThoriTy , A PoliTicAl
subdivision , eT Al ., APPellees .
747 N.W.2d 452
Filed April 1, 2008. 	No. A-06-1065.
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal and
Error. A district court’s grant of a motion to dismiss for failure to state a claim
under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003) is reviewed
de novo, accepting all the allegations in the complaint as true and drawing all
reasonable inferences in favor of the nonmoving party.
2. Pleadings: Appeal and Error. Whether a complaint states a cause of action is a
question of law, to be reviewed on appeal de novo.
3. Pleadings: Proof: Dismissal and Nonsuit. A motion seeking dismissal of a com-
plaint for failure to state a cause of action should be granted only if it appears
beyond doubt that the plaintiff can prove no set of facts which would entitle him
or her to relief.
4. Federal Acts: Public Health and Welfare: Public Assistance. The Department
of Housing and Urban Development “Section 8” subsidy program is established
under federal law, and its purpose is to help low-income families obtain decent,
safe, and sanitary housing by subsidizing rent payments. The program is admin-
istered by a state or local government agency such as a housing authority, and
the federal government provides funding to the local agency to provide the
subsidy payments.
5. Federal Acts: Public Health and Welfare: Public Assistance: Real Estate. The
Department of Housing and Urban Development “Section 8” subsidy program
allows a housing authority to contract with private landowners to make rental
properties available for eligible tenants. Landowners are required to meet certain
housing quality standards for safe and habitable housing, and a housing authority
is required to inspect any property offered for rental under the Section 8 program
to determine whether it meets the housing quality standards.
6. Federal Acts: Public Health and Welfare: Public Assistance. Federal regu-
lations set forth the housing quality standards required by the Department of
Housing and Urban Development “Section 8” subsidy program, which standards
consist of certain performance and acceptability requirements for key aspects of
housing quality.
7. Federal Acts: Public Health and Welfare. Federal law preempts state law and
bars a private right of action against a public housing authority.
8. Federal Acts: Public Health and Welfare: Public Assistance. Under Nebraska
law, a Department of Housing and Urban Development “Section 8” subsidy pro-
gram tenant may not bring an action against a public housing authority for failure
to inspect rental properties and enforce the housing quality standards.
618 	16 NebRASkA APPeLLATe RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
W. russell boWie iii, Judge. Affirmed.
Sheri e. Cotton for appellants.
Thomas A. Grennan and Francie C. Riedmann, of Gross &
Welch, P.C., L.L.o., for appellee omaha Housing Authority.
sievers , cArlson, and moore, Judges.
cArlson, Judge.
INTRoDUCTIoN
Alice Tolbert and Chaz Tolbert, individually and as personal
representatives of the estates of Victoria Lynn Tolbert burgess
and Tisha Cassandra Tolbert, and John Tolbert, as guardian
ad litem on behalf of Rictavianna Tolbert, a minor child (col-
lectively referred to as “the plaintiffs”), appeal from an order
of the district court for Douglas County granting a motion to
dismiss the plaintiffs’ amended complaint for failure to state a
cause of action filed by the omaha Housing Authority (oHA).
on appeal, the plaintiffs allege that the trial court erred in
determining that a federal statute controls a state’s power to
protect the health, safety, and welfare of its citizens, in finding
that the sole cause of the injury to the plaintiffs was an unfore-
seeable criminal act, and in dismissing the plaintiffs’ complaint.
For the reasons set forth below, we affirm.
bACkGRoUND
on January 23, 2006, the plaintiffs filed their amended com-
plaint against oHA and “Mr. Jamison and Mrs. Jamison,” doing
business as Jamison Realty. The plaintiffs alleged that on April
5, 2003, Victoria Lynn Tolbert burgess and Tisha Cassandra
Tolbert (Tolbert) resided in a large two-story, single-family
dwelling in Douglas County as tenants pursuant to a federal
housing subsidy program commonly known as Section 8. The
plaintiffs alleged that oHA is the administrator of Section 8
housing and that the Section 8 program requires property own-
ers who participate in the Section 8 program to provide safe
housing. The plaintiffs also alleged that Section 8 prohibits
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oHA from contracting with a property owner if the property
sought to be leased by the owner is unsanitary or unsafe.
The plaintiffs stated that at the time of a fire in the dwelling
where Tolbert and burgess lived, the first floor had a door at the
back of the property, the front of the property had a closed-in
porch, and the front door had been removed. Previously, there
had also been a door on the second floor, leading to outside
stairs from one of the bedrooms. However, that door had been
boarded shut and the stairs had been removed. The plaintiffs
also alleged that both Tolbert and burgess were disabled.
The plaintiffs alleged that on April 5, 2003, an arsonist
started the aforementioned fire and the fire blocked the only
door leading out of the dwelling. Tolbert and burgess “perished
as a result of the fire, burgess near the walled up door at the
front of the dwelling and [Tolbert] near the boarded-up door
in the second floor bedroom.” The plaintiffs made several alle-
gations against Jamison Realty, but because this appeal does
not directly involve Jamison Realty, we will not repeat those
allegations here.
The plaintiffs alleged that the act of oHA in permitting
the use of the property as rental property under Section 8 and
further continuing to permit the property to be used as rental
property under Section 8 was a willful, reckless disregard of the
safety of Tolbert and burgess; members of the public who were
their guests, invitees, or licensees; and any other person who
may enter the premises, for the following reasons:
a. [oHA] was charged with the duty of inspecting the
property and insuring it was safe and sanitary[.]
b. [oHA] was charged with the duty of insuring that
in the event of a fire, the tenants had adequate emer-
gency exits[.]
c. [oHA] knew that the parties living in the home were
disabled persons.
d. [oHA] knew that at one time the property had a front
and back entrance and another entrance on the second
floor of the property, for a total of three entryways.
e. [oHA] knew on the date of the last annual inspec-
tion the property had only one usable entryway and that
entryway was located on the rear of the property.
620 	16 NebRASkA APPeLLATe RePoRTS

f. [oHA] knew that if a fire blocked the stairs, or the
pathway to the only door, the persons in the front of the
house and on the second floor would not be able to escape
the fire.
g. [oHA] had the power and authority to either require
the landlord to make the property safe or to move [Tolbert
and burgess] to a residence that was safe and sanitary.
h. With reckless indifference to the consequences of
the inadequate fire exits[,] and with consciousness that
the failure to have [adequate exits] would probably cause
serious injury or death, [oHA] took no action to insure
[Tolbert’s and burgess’] fire safety.
The plaintiffs also alleged that they had complied with
Nebraska’s Political Subdivisions Tort Claims Act. The plain-
tiffs brought three causes of action against oHA and Jamison
Realty, the first for wrongful death, the second for predeath
injuries and damages, and the third for funeral and medi-
cal expenses.
on February 1, 2006, oHA filed a motion to dismiss the
plaintiffs’ action pursuant to Neb. Ct. R. of Pldg. in Civ. Actions
12(b)(6) (rev. 2003), stating that the plaintiffs’ amended com-
plaint fails to state a claim upon which relief may be granted.
oHA also moved to dismiss the plaintiffs’ complaint pursuant
to rule 12(b)(7) for failure to join a necessary party, more spe-
cifically the party who started the fire.
A hearing on oHA’s motion was held on March 9, 2006.
on April 20, the trial court granted oHA’s motion to dismiss
under rule 12(b)(6). Specifically, the court found that even if it
construed all of the allegations in the plaintiffs’ complaint in
their favor and assumed that oHA was negligent, federal law
“clearly states that the [plaintiffs] have no private right to bring
an action against oHA to recover damages.” The trial court also
concluded as a matter of law that the arsonist’s criminal act was
an efficient intervening cause precluding the court from deter-
mining whether any alleged negligence by oHA proximately
caused Tolbert’s and burgess’ deaths. The trial court did not
address whether the plaintiffs failed to join a necessary party.
The trial court dismissed the plaintiffs’ claims against oHA
with prejudice. The plaintiffs appeal.
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ASSIGNMeNTS oF eRRoR
on appeal, the plaintiffs assign that the trial court erred (1)
in determining that a federal statute controls a state’s power
to protect the health, safety, and welfare of its citizens and
(2) in finding that the sole cause of the injury to the plain-
tiffs was an unforeseeable criminal act and in dismissing the
plaintiffs’ complaint.
STANDARD oF ReVIeW
[1-3] A district court’s grant of a motion to dismiss for
failure to state a claim under rule 12(b)(6) is reviewed de
novo, accepting all the allegations in the complaint as true and
drawing all reasonable inferences in favor of the nonmoving
party. See Washington v. Conley, 273 Neb. 908, 734 N.W.2d
306 (2007). Whether a complaint states a cause of action is a
question of law, to be reviewed on appeal de novo. Dennes v.
Dunning, 14 Neb. App. 934, 719 N.W.2d 737 (2006). A motion
seeking dismissal of a complaint for failure to state a cause of
action should be granted only if it appears beyond doubt that
the plaintiff can prove no set of facts which would entitle him
or her to relief. Id.
ANALySIS
on appeal, the plaintiffs argue that the trial court erred in
determining that a federal statute controls a state’s power to
protect the health, safety, and welfare of its citizens.
Neb. Rev. Stat. § 13-910(3) (Cum. Supp. 2006) states that the
Political Subdivisions Tort Claims Act shall not apply to
[a]ny claim based upon the failure to make an inspection
or making an inadequate or negligent inspection of any
property other than property owned by or leased to such
political subdivision to determine whether the property
complies with or violates any statute, ordinance, rule, or
regulation or contains a hazard to public health or safety
unless the political subdivision had reasonable notice of
such hazard or the failure to inspect or inadequate or
negligent inspection constitutes a reckless disregard for
public health or safety.
The plaintiffs contend that their amended complaint set out
facts sufficient to show that oHA’s actions in the instant case
622 	16 NebRASkA APPeLLATe RePoRTS

constituted a reckless disregard for public health or safety
under § 13-910(3) and that therefore, they are not barred from
bringing a claim against oHA under state law. oHA argues,
and the trial court agreed, that federal, not state, law applies
because the plaintiffs alleged that oHA had a legal duty to
protect Tolbert and burgess under the federal statutes and regu-
lations governing Section 8 rental properties.
[4] As the trial court stated, the Department of Housing
and Urban Development (HUD) Section 8 subsidy program is
established under federal law and its purpose is to help low-
income families obtain “decent, safe and sanitary housing” by
subsidizing rent payments. 24 C.F.R. § 982.1(a)(1) (2007). The
program is administered by a state or local government agency
such as oHA, and the federal government provides funding
to the local agencies to provide the subsidy payments. See,
generally, id.
[5,6] The HUD Section 8 subsidy program allows a hous-
ing authority to contract with private landowners to make
rental properties available for eligible tenants. Landowners are
required to meet certain housing quality standards for “safe
and habitable housing,” and a housing authority is required
to inspect any property offered for rental under the Section 8
program to determine whether it meets the housing quality stan-
dards. See 42 U.S.C. § 1437f(o)(8)(A) and (b) (Supp. V 2005).
Federal regulations set forth the housing quality standards,
which standards consist of certain performance and accept-
ability requirements for key aspects of housing quality. See 24
C.F.R. § 982.401(a)(2) (2007).
The regulations specifically state that they do not
create any right of the family, or any party other [than]
HUD or the [public housing authority], to require enforce-
ment of the [housing quality standards] requirements by
HUD or the [public housing authority], or to assert any
claim against HUD or the [pubic housing authority], for
damages, injunction or other relief, for alleged failure to
enforce the [housing quality standards].
See 24 C.F.R. § 982.406 (2007).
[7] Nebraska has yet to decide whether a Section 8 tenant
may bring an action against a public housing authority for
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failure to inspect rental properties and enforce the housing
quality standards. other jurisdictions have held that even if
state law provides for suit against a public housing authority
under these facts, federal law preempts state law and bars a
private right of action against a public housing authority.
For example, in Housing Auth. of City of South Bend v.
Grady, 815 N.e.2d 151 (Ind. App. 2004), the roommate of a
tenant who received Section 8 tenant-based assistance from a
city housing authority brought an action against the owner of
the residence and the housing authority, the action arising out
of an incident in which the roommate fell through the upstairs
floor of the residence and sustained injuries. The housing
authority filed a motion for summary judgment, and the trial
court overruled the motion.
The housing authority appealed, and the Indiana Court of
Appeals held that the Indiana statute providing that the housing
authority could sue and be sued was preempted by a federal reg-
ulation providing that the regulatory scheme governing Section
8 housing does not give rise to a private right of action against
a public housing authority. In doing so, the court stated:
Congress obviously carved out this specific area to be
governed by the federal regulation rather than state or
local law. This is evidenced by the fact that 24 C.F.R.
§ 982.406 was enacted without comment and by the clear,
unambiguous language used to draft the regulation. See
Dept. of Housing and Urban Development, 60 Fed.Reg.
34,660, 34,680 (1995). Thus, the history of the enact-
ment of § 982.406, as well as the text of the regulation,
evince the clear intent of Congress to preempt state and
local law with regard to the enforcement of the [housing
quality standards].
Grady, 815 N.e.2d at 157.
The Indiana Court of Appeals then turned to the basis of
the roommate’s claims against the housing authority, which
consisted of improper inspection of the residence, failure to
identify structural issues and ensure their correction, failure
to enforce its own policies regarding Section 8 housing, and
failure to warn of structural defects. After reviewing the room-
mate’s claims, the court concluded that each of the roommate’s
624 	16 NebRASkA APPeLLATe RePoRTS

claims related to the roommate’s attempt to enforce the housing
quality standards of the Section 8 housing assistance program.
Therefore, the court held that all of the roommate’s claims were
preempted by federal law pursuant to § 982.406. See, also, Kent
v. Epherson, 864 So. 2d 708 (La. App. 2003) (affirming trial
court’s dismissal of plaintiffs’ cause of action against housing
authority for failure to state cause of action and holding that
plaintiffs could not recover against housing authority follow-
ing act of arson at apartment complex that took lives of four
individuals, because no private action existed against hous-
ing authority for alleged failure to comply with requirements
of Section 8 housing quality standards); Rivera v. Village of
Spring Valley, 284 A.D.2d 521, 727 N.y.S.2d 458 (2001) (hold-
ing that plaintiffs could not recover damages against housing
authority for injuries resulting from lead poisoning because
statutory and regulatory scheme governing Section 8 housing
does not give rise to private cause of action against public
housing authority).
In the instant case, the trial court sustained oHA’s motion
to dismiss the plaintiffs’ complaint under rule 12(b)(6) after
concluding that the plaintiffs’ amended complaint “essentially
seeks relief from oHA, the public housing authority, for its
failure to enforce the Housing Quality Standards.” The court
explained, “This type of action is specifically barred by federal
regulation. See 24 C.F.R. § 982.406.”
In their amended complaint, the plaintiffs allege that the act
of oHA in permitting the use of the property as rental property
under Section 8 and further continuing to permit the property
to be used as rental property under Section 8 was a willful
reckless disregard of the safety of Tolbert and burgess and
members of the public because oHA failed to inspect the prop-
erty; failed to ensure that the tenants had adequate emergency
exits, especially those tenants with disabilities; failed to require
the landlord to make the property safe or to move Tolbert and
burgess to a residence that was safe and sanitary; and failed to
take action to ensure Tolbert’s and burgess’ safety in the event
of a fire.
[8] After reviewing these allegations de novo, we conclude
that all of these allegations are based on oHA’s failure to
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comply with the housing quality standards regulations under
§ 982.406. Therefore, even if we accept all of the plaintiffs’
allegations in their complaint as true and draw all reasonable
inferences in favor of the plaintiffs, federal law clearly states
that the plaintiffs have no private right to bring an action
against oHA to recover damages. We hold that the federal law
regarding Section 8 housing was clearly meant to be overriding
and that therefore, federal law preempts any Nebraska law on
the matter. Therefore, under Nebraska law, a Section 8 tenant
may not bring an action against a public housing authority for
failure to inspect rental properties and enforce the housing
quality standards.
In summary, it appears beyond a doubt that the plaintiffs
cannot prove any set of facts which would entitle them to relief.
See Dennes v. Dunning, 14 Neb. App. 934, 719 N.W.2d 737
(2006). Therefore, the trial court did not err in granting oHA’s
rule 12(b)(6) motion to dismiss for failure to state a cause
of action.
CoNCLUSIoN
After reviewing the record, we conclude that the trial court
did not err in determining that the federal rules governing
Section 8 housing bar a private cause of action against a public
housing authority. because of our holding, we find it unneces-
sary to determine whether the sole cause of the injury to the
plaintiffs was an unforeseeable criminal act. The trial court’s
order dismissing the plaintiffs’ amended complaint with preju-
dice is affirmed.
A ffirmed .
mArTA mcnAmee , APPellAnT, v . mArrioTT
reservATion cenTer , APPellee .
747 N.W.2d 30
Filed April 1, 2008. 	No. A-07-994.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat.
§ 48-185 (Reissue 2004), an appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (1) the compensation court
626 	16 NebRASkA APPeLLATe RePoRTS