Scott v. Lancaster Cty. Sch. Dist. 0001

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
Erin-Ann Scott, mother and next friend of E.S.,
a minor child, appellee, v. Lancaster County
School District 0001, doing business as
Lincoln Public Schools, et al., appellants.
___ N.W.3d ___
Filed March 28, 2025. 	No. S-24-495.
1. Immunity: Jurisdiction. The presence of sovereign immunity is a juris-
dictional matter.
2. Political Subdivisions Tort Claims Act: Appeal and Error. Whether
a plaintiff’s negligence claims are precluded by an exemption to the
Political Subdivisions Tort Claims Act is a question of law for which
an appellate court has a duty to reach its conclusions independent of the
conclusions reached by the district court.
3. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s ruling on a motion for summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party
and drawing all reasonable inferences in that party’s favor.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
5. Political Subdivisions Tort Claims Act: Schools and School Districts.
Public school districts are political subdivisions for purposes of the
Political Subdivisions Tort Claims Act.
6. Political Subdivisions Tort Claims Act: Immunity: Liability. If a
political subdivision proves that a plaintiff’s claim comes within an
exemption pursuant to Neb. Rev. Stat. § 13-910 (Reissue 2022), then the
claim fails based on sovereign immunity, and the political subdivision is
not liable.
7. Torts: Battery: Words and Phrases. The intentional tort of battery is
defined as an actual infliction of an unconsented injury upon or uncon-
sented contact with another.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
8. Battery. A harmful contact intentionally done is the essence of battery.
9. Torts: Battery: Assault: Intent: Words and Phrases. The intent
required for a battery or an assault contemplates only the intent to cause
physical contact or injury or arouse an apprehension of imminent injury,
as the assailant need not intend the precise or particular injury which
followed as the result of the assault or battery.
10. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material fact 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.
11. Political Subdivisions Tort Claims Act: Battery. Although whether a
claim is precluded by an exemption to the Political Subdivisions Tort
Claims Act is generally a question of law, whether an object is consid-
ered part of a plaintiff’s body for purposes of an offensive contact bat-
tery is determined on an objective reasonable person basis.
Appeal from the District Court for Lancaster County, Darla
S. Ideus, Judge. Affirmed.
Joshua J. Schauer and Haleigh B. Carlson, of Perry, Guthery,
Haase & Gessford, P.C., L.L.O., for appellants.
Terry C. Dougherty and Joseph F. Willms, of Woods Aitken,
L.L.P., for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Cassel, J.
INTRODUCTION
During a game of “tag,” an elementary school student’s
classmate grabbed a “pool noodle” held by the student, who
then fell and sustained injuries. The student sued the public
school district for negligence. Asserting the sovereign immu-
nity exemption for a claim arising out of a battery, the district
moved for summary judgment. The district court overruled the
motion, finding a dispute of fact regarding whether the object
was part of the student’s body. In this interlocutory appeal, we
agree that there is a factual dispute that precludes summary
judgment. We affirm.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
BACKGROUND
A 10-year-old student attending an elementary school in
Lincoln, Nebraska, sustained an injury while playing a game of
tag during a physical education class. During the game, the stu-
dent stood in the middle of the gymnasium floor with a “pool
noodle” that was to be used to touch or tag her classmates as
the classmates ran from one end of the floor to the other. Once
tagged, the classmate was to sit down on the floor. Grabbing
the pool noodle after getting tagged was not part of the rules
of the game.
After the student tagged K.H. with the pool noodle, K.H.
grabbed the pool noodle. K.H. yanked and “swayed” the pool
noodle as the student tried to hang onto it. The student did
not consent to the yanking, swaying, and grabbing of the pool
noodle. The pool noodle slipped out of the student’s hands, and
she fell backward, hitting her head on the floor.
Erin-Ann Scott, mother and next friend of the student,
brought a negligence suit against Lancaster County School
District 0001, doing business as Lincoln Public Schools; Board
of Education of Lincoln, Nebraska; Dr. Steve Joel; Dr. Paul
Gausman; Laurel Heidbrink (collectively LPS); and “John or
Jane Does, 1-4.” LPS asserted in its answer that it had sov-
ereign immunity and that the claims were barred under two
exemptions set forth in the Political Subdivisions Tort Claims
Act (PSTCA), 1 particularly the discretionary function exemp-
tion 2 and the intentional torts exemption. 3
LPS moved for summary judgment. It argued that it was
immune from suit because the claim arose out of K.H.’s battery
of the student.
But the student’s mother and next friend argued that K.H.’s
conduct could not be considered a battery because K.H. was
not of sufficient age and maturity to possess the capacity to
1 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2022).
2 § 13-910(2).
3 § 13-910(7).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
form the intent to commit battery and because the pool noodle
should not be considered a part of the student’s person. The
pool noodle was a 3-foot-long piece of foam purchased by
the physical education teacher. According to the student’s
affidavit, nothing that K.H. did while holding the pool noodle
caused her to have an emotional reaction, apprehension, or fear
of unwanted contact or injury. The student did not regard the
pool noodle as part of her person. She described it as “a piece
of foam, provided by the gym teacher, to be used as an object
in a game of tag.”
The district court overruled the motion for summary judg-
ment. The court stated there was no question that K.H. intended
to grab the pool noodle and that the student admitted she did
not consent to the contact. The court viewed the critical inquiry
to be whether the pool noodle was part of the student’s per-
son. And the court stated that whether an item is intimately
connected to a person’s body is a question of fact. The court
recognized that the facts of this case differed from other cases
because the student was not holding something she owned
and because she did not choose to hold the pool noodle, but,
rather, she was instructed to do so by an adult. Ultimately, the
court concluded that whether the pool noodle was part of the
student’s person was a disputed question of fact that precluded
summary judgment.
Within 30 days after entry of that order, LPS appealed. We
granted LPS’ petition to bypass review by the Nebraska Court
of Appeals. 4
ASSIGNMENTS OF ERROR
LPS assigns three errors which, consolidated and restated,
allege that after finding that the contact was intentional and
done without consent, the district court erred in failing to dis-
miss the case for lack of subject matter jurisdiction, because
LPS retained sovereign immunity for claims arising out of
a battery.
4 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2024).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
STANDARD OF REVIEW
[1,2] The presence of sovereign immunity is a jurisdictional
matter. 5 Whether a plaintiff’s negligence claims are precluded
by an exemption to the PSTCA is a question of law for which
an appellate court has a duty to reach its conclusions indepen-
dent of the conclusions reached by the district court. 6
[3] An appellate court reviews the district court’s ruling on a
motion for summary judgment de novo, viewing the record in
the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor. 7
ANALYSIS
Appellate Jurisdiction
[4] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. 8 LPS asserts that we have
jurisdiction to consider this appeal. We agree.
Nearly 6 years ago, the Legislature created a new category
of final orders for purposes of appeal. 9 Under Neb. Rev. Stat.
§ 25-1902(1)(d) (Cum. Supp. 2024), a final order includes
an order denying a motion for summary judgment when such
motion is based on the assertion of sovereign immunity or the
immunity of a government official.
Here, the requirements of § 25-1902(1)(d) are met. First,
the district court’s order overruled the motion for summary
judgment. Second, the motion was based on the assertion of
sovereign immunity. Although the motion itself merely stated
that “there is no genuine issue of material fact,” LPS’ brief in
support of its motion argued that LPS was immune from the
5 Garcia v. City of Omaha, 316 Neb. 817, 7 N.W.3d 188 (2024).
6 Id.
7 Id.
8 Simpson v. Lincoln Public Schools, 316 Neb. 246, 4 N.W.3d 172 (2024).
9 See 2019 Neb. Laws, L.B. 179, § 1.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
claims under the intentional torts exemption. Because LPS’
argument in seeking summary judgment was that the claim
fell within an exemption to the PSTCA, the motion was based
on the assertion of sovereign immunity within the meaning of
§ 25-1902(1)(d). 10 Having jurisdiction of this appeal, we turn
now to the exemption that LPS seeks to have applied.
Exemption for Claim
Arising Out of Battery
[5,6] LPS is a public school district. Public school districts
are political subdivisions for purposes of the PSTCA. 11 If
a political subdivision proves that a plaintiff’s claim comes
within an exemption pursuant to § 13-910, then the claim fails
based on sovereign immunity, and the political subdivision is
not liable. 12 In that situation, the proper remedy is to dismiss
the claim for lack of subject matter jurisdiction. 13
LPS asserts that the student’s claim comes within the exemp-
tion in § 13-910(7) because it arises out of battery. For pur-
poses of this opinion, we are not required to decide whether
the claim arose from a battery; rather, we decide only whether
there is a fact question regarding the existence of a battery. We
turn our focus to the specified tort.
[7-9] The intentional tort of battery is defined as an actual
infliction of an unconsented injury upon or unconsented con-
tact with another. 14 A harmful contact intentionally done is the
essence of battery. 15 The intent required for a battery or an
assault contemplates only the intent to cause physical contact
or injury or arouse an apprehension of imminent injury, as
10 See Simpson v. Lincoln Public Schools, supra note 8.
11 MacFarlane v. Sarpy Cty. Sch. Dist. 77-0037, 316 Neb. 705, 6 N.W.3d 527
(2024).
12 Id.
13 See Joshua M. v. State, 316 Neb. 446, 5 N.W.3d 454 (2024).
14 Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).
15 Id.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
the assailant need not intend the precise or particular injury
which followed as the result of the assault or battery. 16
There is no dispute that K.H. grabbed onto the pool noodle
that the student was holding and that the student did not con-
sent to K.H.’s grabbing, yanking, or swaying the pool noodle.
LPS contends intentional, unconsented to contact is sufficient
for battery.
But K.H. did not actually touch the student; rather, K.H.’s
contact was with something in the student’s hands. The ques-
tion is whether such touching qualifies as contact with the
student’s body.
The parties and the district court cited commentary contained
in a legal treatise on tort law. With respect to the “[m]eaning of
‘contact with another’s person,’” it stated in part:
Since the essence of the plaintiff’s grievance consists
in the offense to the dignity involved in the unpermitted
and intentional invasion of the inviolability of his person
and not in any physical harm done to his body, it is not
necessary that the plaintiff’s actual body be disturbed.
Unpermitted and intentional contacts with anything so
connected with the body as to be customarily regarded
as part of the other’s person and therefore as partaking
of its inviolability is actionable as an offensive contact
with his person. There are some things such as clothing
or a cane or, indeed, anything directly grasped by the
hand which are so intimately connected with one’s body
as to be universally regarded as part of the person. On
the other hand, there may be things which are attached
to one’s body with a connection so slight that they are
not so regarded. The line of distinction is very difficult
to draw. It is a thing which is felt rather than one to be
defined, since it depends upon an emotional reaction. 17
16 Bergman v. Anderson, 226 Neb. 333, 411 N.W.2d 336 (1987).
17 Restatement (Second) of Torts § 18, comment c. at 31 (1965).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
The parties disagree about whether K.H.’s contact with the
pool noodle held by the student constituted contact with the
student. LPS argues that “unconsented contact with items held
by the person is the same as contact with the person” for pur-
poses of a battery. 18 And here, the pool noodle was being used
as an extension of the student’s arm for purposes of the game.
However, the student stated in her affidavit that she did not
consider the pool noodle to have “even a remote connection
to [her] body.” She further stated that she “did not regard it as
any part of [her] person, and the fact that [she] was touching
it at the same time as [K.H.] did not make [her] regard it as
part of [her] body.”
[10] Due to the procedural posture of the case, this dis-
agreement matters. We are reviewing a ruling on a motion for
summary judgment. Summary judgment is proper only when
the pleadings, depositions, admissions, stipulations, and affi-
davits in the record disclose that there is no genuine issue as
to any material fact 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. 19 And because the student is
the nonmoving party, we must view the record in the light
most favorable to her and draw all reasonable inferences in
her favor.
[11] Although whether a claim is precluded by an exemp-
tion to the PSTCA is generally a question of law, whether an
object is considered part of a plaintiff’s body for purposes
of an offensive contact battery is determined on an objec-
tive reasonable person basis. Whether a contact is offensive
depends on whether it “offends a reasonable sense of personal
dignity.” 20 “[I]t must be one which would offend the ordinary
person . . . . It must, therefore, be a contact which is unwar-
ranted by the social usages prevalent at the time and place
18 Brief for appellants at 23.
19 Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023).
20 Restatement, supra note 17, § 19 at 35.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
at which it is inflicted.” 21 Courts have frequently found an
offensive contact with the plaintiff’s person when an object
is grabbed from a plaintiff’s hand, 22 but not always. 23 And the
situation here is unusual because the parties have cited, and
our research has uncovered, only cases in which a plaintiff is
claiming that contact with something in the plaintiff’s hand is
a battery.
Ultimately, the question boils down to whether a reason-
able fact finder could reach either conclusion, i.e., that the
pool noodle either was or was not part of the student’s body.
Important to that question is whether a reasonable person
would find the contact to be offensive under the circumstances.
We are mindful that the incident occurred between fifth grade
students playing a game as part of a physical education class
with a pool noodle supplied by the teacher.
Viewing the evidence most favorably to the student, we
agree with the district court that there is a genuine issue of
material fact about whether the pool noodle was part of the
student’s body. And because of this factual dispute, the district
court properly overruled the motion for summary judgment.
CONCLUSION
As explained above, we conclude:
• The district court’s order overruling LPS’ motion for sum-
mary judgment was appealable pursuant to § 25-1902(1)(d),
21 Id., § 19, comment a. at 35.
22 See, e.g., Picard v. Barry Pontiac-Buick, Inc., 654 A.2d 690 (R.I. 1995)
(mechanic touching camera in customer’s hand); Fisher v. Carrousel
Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) (snatching plate from
customer in buffet line); In re B.L., 239 Cal. App. 4th 1491, 192 Cal.
Rptr. 3d 154 (2015) (student slapping walkie-talkie out of teacher’s hand);
Reynolds v. MacFarlane, 322 P.3d 755 (Utah App. 2014) (taking $10 bill
from coworker’s hand).
23 See, Helton v. Whitley County Fiscal Court, No. 6:22-CV-140-CHB, slip
op., 2025 WL 47539 (E.D. Ky. Jan. 7, 2025) (taking letter from plaintiff’s
hand not offensive); Workman v. United Fixtures Co., 116 F. Supp. 2d 885
(W.D. Mich. 2000) (grabbing prescription note not offensive).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
SCOTT v. LANCASTER CTY. SCH. DIST. 0001
Cite as 318 Neb. 670
because the motion was based on the assertion that LPS was
immune from the claim under § 13-910(7) as one arising out
of battery.
• In this interlocutory appeal, we are addressing only whether
there is a fact question regarding an element of a battery.
• Although whether a claim is precluded by an exemption to the
PSTCA is generally a question of law, whether an object is
considered part of a plaintiff’s body for purposes of an offen-
sive contact battery is determined on an objective reasonable
person basis.
• Even though K.H.’s contact with the pool noodle was inten-
tional, there is a factual dispute about whether the contact with
the pool noodle held by the student was offensive contact with
the student’s body.
Because there is a genuine issue of material fact, we affirm
the order of the district court overruling LPS’ motion for sum-
mary judgment.
Affirmed.