Edwards v. Douglas County , 308 Neb. 259 ( 2021 )


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    www.nebraska.gov/apps-courts-epub/
    01/29/2021 09:08 AM CST
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    EDWARDS v. DOUGLAS COUNTY
    Cite as 
    308 Neb. 259
    Julie Edwards, appellant, v. Douglas County,
    a political subdivision of the State
    of Nebraska, appellee.
    ___ N.W.2d ___
    Filed January 29, 2021.   No. S-19-1195.
    1. Political Subdivisions Tort Claims Act. Whether the allegations made
    by a plaintiff set forth claims which are precluded by exemptions under
    the Political Subdivisions Tort Claims Act presents a question of law.
    2. Judgments: Appeal and Error. When reviewing questions of law, an
    appellate court has an obligation to resolve the questions independently
    of the conclusion reached by the trial court.
    3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    4. Political Subdivisions Tort Claims Act: Immunity: Waiver. Through
    the Political Subdivisions Tort Claims Act, the Legislature has allowed
    a limited waiver of a political subdivision’s sovereign immunity with
    respect to some, but not all, types of tort claims.
    5. ____: ____: ____. 
    Neb. Rev. Stat. § 13-910
     (Reissue 2012) of the
    Political Subdivisions Tort Claims Act expressly exempts certain types
    of tort claims from the limited waiver of sovereign immunity. Stated
    differently, the exemptions in § 13-910 describe the types of tort claims
    for which a political subdivision has not consented to be sued.
    6. Political Subdivisions Tort Claims Act: Dismissal and Nonsuit:
    Immunity. When an exemption under the Political Subdivisions Tort
    Claims Act applies, the political subdivision is immune from the
    claim and the proper remedy is to dismiss it for lack of subject mat-
    ter jurisdiction.
    7. Political Subdivisions Tort Claims Act: Jurisdiction: Summary
    Judgment. Because it is jurisdictional, courts should determine the
    applicability of a statutory exemption under the Political Subdivisions
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    EDWARDS v. DOUGLAS COUNTY
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    308 Neb. 259
    Tort Claims Act before considering nonjurisdictional grounds for sum-
    mary judgment.
    8.   Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of words which are plain, direct, and
    unambiguous.
    9.   Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
    tion of sovereign immunity are strictly construed in favor of the sover-
    eign and against the waiver.
    10.   Political Subdivisions Tort Claims Act: Immunity: Waiver. In order
    to strictly construe the Political Subdivisions Tort Claims Act against a
    waiver of sovereign immunity, courts apply a broad reading to any statu-
    tory exemptions from a waiver of sovereign immunity.
    11.   Statutes: 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 reason-
    able construction.
    12.   Political Subdivisions Tort Claims Act: Assault. No matter how a tort
    claim against the government is framed, when it seeks to recover dam-
    ages 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 Political Subdivisions Tort Claims Act.
    13.   Political Subdivisions Tort Claims Act: Pleadings: Assault. Plaintiffs
    cannot circumvent the assault and battery exemption under the Political
    Subdivisions Tort Claims Act through artful pleading.
    14.   Courts: Immunity: Waiver. No matter how compelling the facts of a
    particular case may be, the judiciary does not have the power to waive
    sovereign immunity.
    15.   Constitutional Law: Political Subdivisions Tort Claims Act: Courts:
    Legislature. Neb. Const. art. II, § 1, precludes courts from exercis-
    ing powers belonging to the Legislature, and decisions on whether
    and how to limit the government’s potential tort liability belong to
    the Legislature.
    16.   Courts: Legislature: Immunity. Courts must not, through judicial
    construction, usurp the Legislature’s role in drawing the line between
    governmental liability and immunity.
    17.   Political Subdivisions Tort Claims Act. The Political Subdivisions Tort
    Claims Act provides the exclusive means by which to maintain a tort
    claim against a political subdivision or its employees.
    18.   Immunity: Waiver. The language of 
    Neb. Rev. Stat. § 86-441
     (Reissue
    2014) is not a waiver of sovereign immunity.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    EDWARDS v. DOUGLAS COUNTY
    Cite as 
    308 Neb. 259
    Appeal from the District Court for Douglas County: Leigh
    Ann Retelsdorf, Judge. Affirmed.
    Gretchen L. McGill, Heather S. Voegele, and Brenda K.
    Smith, of Dvorak Law Group, L.L.C., for appellant.
    Jimmie L. Pinkham III and William E. Rooney III, Deputy
    Douglas County Attorneys, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Stacy, J.
    In 2016, Julie Edwards was held hostage and sexually
    assaulted by a former boyfriend. In 2017, Edwards sued
    Douglas County under the Political Subdivisions Tort Claims
    Act (PSTCA) 1, alleging the county negligently handled a series
    of 911 calls and, as a result, emergency personnel did not
    arrive in time to prevent or stop the sexual assault. The district
    court granted summary judgment in favor of Douglas County
    and dismissed the action, finding the county owed no legal
    duty to Edwards. We affirm the judgment of dismissal, but do
    so on grounds of sovereign immunity.
    BACKGROUND
    Assault and 911 Calls
    Edwards and Kenneth Clark were involved in a dating rela-
    tionship and resided together in Omaha, Nebraska. Edwards
    ended the relationship, and on February 12, 2016, she went to
    Clark’s home to retrieve her belongings, accompanied by her
    brothers John Edwards and Jason Edwards.
    As Edwards and her brothers were leaving Clark’s home
    with the final box, Clark fired several gunshots, striking both
    John and Jason. Edwards tried to escape, but Clark dragged
    her back into the home. Once inside, Edwards saw that Jason
    1
    
    Neb. Rev. Stat. §§ 13-901
     to 13-928 (Reissue 2012).
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    308 Neb. 259
    was on the floor bleeding and that John was moving toward
    the basement. Edwards heard John saying he was hurt and
    needed help. She later heard John’s cell phone ring from the
    basement, and she could hear John speaking, but could not
    make out his words.
    Eventually Clark zip-tied Edwards’ hands and feet, con-
    fiscated her cell phone, and held her hostage in the home.
    Thereafter, Clark took Edwards to an upstairs bedroom where
    he sexually assaulted her. Edwards estimates the sexual assault
    began roughly 20 to 30 minutes after the shooting; the shooting
    occurred shortly before 10 a.m.
    It is undisputed that while Edwards was being held hos-
    tage, John called the Douglas County 911 call center from
    the basement of Clark’s home. The first call was placed at
    approximately 10:12 a.m., and, over the course of several more
    phone calls, John reported that he had been shot by his sister’s
    ­ex-boyfriend “Ken Clark” and needed help. John told 911
    that he was inside Clark’s house, but was not able to provide
    a street address. John reported that Clark was still inside the
    house, that Clark had a gun, and that Edwards was being held
    hostage in the house. The final call between John and the 911
    call center was placed at approximately 10:33 a.m.
    At approximately 10:54 a.m., law enforcement was dis-
    patched to Clark’s residence. They arrived at approximately
    10:58 a.m., after which Clark stopped assaulting Edwards
    but continued to hold her hostage. Clark eventually released
    Edwards sometime before 2 p.m. and then took his own
    life. Both John and Jason died from injuries sustained in
    the shooting.
    Lawsuit
    On October 2, 2017, after complying with the presuit notice
    requirements under the PSTCA, Edwards filed a negligence
    action against Douglas County, seeking to recover damages for
    personal injury. Her complaint alleged that Douglas County
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    EDWARDS v. DOUGLAS COUNTY
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    308 Neb. 259
    “had a duty to provide and maintain a 911 service system
    utilizing reasonable care” and had breached that duty by mis-
    handling the 911 calls with John. Edwards alleged that as a
    result of the county’s negligence, emergency personnel did not
    arrive at Clark’s home in a timely manner, which caused her to
    “continu[e] to be held hostage and [to be] sexually assaulted
    at gunpoint.”
    In its operative amended answer, Douglas County specifi-
    cally denied that it failed to use reasonable care in handling
    the 911 calls. The county affirmatively alleged that Edwards’
    complaint failed to state a claim of negligence against the
    county, but it did not expressly allege that Douglas County was
    immune from suit under the PSTCA.
    Summary Judgment
    After conducting discovery, both Douglas County and
    Edwards moved for summary judgment. Douglas County
    claimed it was entitled to summary judgment because, among
    other things, it owed Edwards no legal duty to protect her from
    the assault by Clark. Edwards argued she was entitled to partial
    summary judgment in her favor on the issues of legal duty and
    breach. A single hearing was held on the competing summary
    judgment motions. Exhibits were offered by both parties and
    received without objection.
    Before the district court, the parties primarily focused their
    arguments on questions of legal duty. Douglas County argued
    it had no duty to protect Edwards from the assault by Clark.
    Edwards disagreed, arguing that a legal duty arose under
    Nebraska’s Emergency Telephone Communications Systems
    Act (ETCSA). 2 Edwards argued, summarized, that the ETCSA
    authorized Douglas County to provide 911 services and
    imposed a statutory duty of reasonable care in contracting for
    and providing such services.
    2
    
    Neb. Rev. Stat. §§ 86-420
     to 86-441.01 (Reissue 2014).
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    EDWARDS v. DOUGLAS COUNTY
    Cite as 
    308 Neb. 259
    In an order entered November 21, 2019, the district court
    rejected Edwards’ contention that the ETCSA imposed a
    legal duty on the county. After analyzing and rejecting other
    legal theories under which the county may have had a duty to
    protect Edwards from the assault by Clark, the court sustained
    the county’s motion for summary judgment and overruled
    Edwards’ motion for partial summary judgment. Edwards filed
    a timely notice of appeal, which we moved to our docket on
    our own motion.
    ASSIGNMENTS OF ERROR
    Edwards assigns eight errors, which we consolidate and
    restate into two: (1) The district court erred in granting Douglas
    County’s motion for summary judgment on the ground the
    county did not owe Edwards a legal duty, and (2) the district
    court erred in overruling Edwards’ motion for partial sum-
    mary judgment.
    STANDARD OF REVIEW
    [1] Whether the allegations made by a plaintiff set forth
    claims which are precluded by exemptions under the PSTCA
    presents a question of law. 3
    [2] When reviewing questions of law, an appellate court has
    an obligation to resolve the questions independently of the con-
    clusion reached by the trial court. 4
    [3] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an inde-
    pendent conclusion irrespective of the decision made by the
    court below. 5
    3
    See, Moser v. State, 
    307 Neb. 18
    , 
    948 N.W.2d 194
     (2020); Rutledge v. City
    of Kimball, 
    304 Neb. 593
    , 
    935 N.W.2d 746
     (2019).
    4
    See Moser, 
    supra note 3
    .
    5
    
    Id.
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    EDWARDS v. DOUGLAS COUNTY
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    308 Neb. 259
    ANALYSIS
    Subject Matter Jurisdiction
    Under PSTCA
    Shortly before the scheduled oral argument in this appeal,
    Douglas County moved for summary dismissal or, in the alter-
    native, summary affirmance, claiming we lack subject mat-
    ter jurisdiction over Edwards’ claim under the PSTCA. The
    county contends, summarized, that Edwards’ claim is barred
    by sovereign immunity because the PSTCA’s exemption for
    claims “arising out of assault” 6 applies. In support of its argu-
    ment, the county relies on this court’s recent opinion in Moser
    v. State, 7 which was released after the initial briefing in this
    case was complete. Edwards filed a brief in opposition to the
    county’s motion, and we deferred ruling on the motion until
    plenary submission.
    Because the county’s motion presents a question of sub-
    ject matter jurisdiction under the PSTCA, we address it as
    a threshold matter. 8 No party raised the applicability of any
    exemption under the PSTCA while this case was before the
    district court, but whether an exemption applies presents a
    jurisdictional issue which may be raised for the first time on
    appeal. 9 Simply put, a political subdivision’s sovereign immu-
    nity from suit is a jurisdictional issue that an appellate court
    cannot ignore. 10
    6
    § 13-910(7).
    7
    Moser, 
    supra note 3
    .
    8
    See Lambert v. Lincoln Public Schools, 
    306 Neb. 192
    , 
    945 N.W.2d 84
     (2020) (explaining because question is jurisdictional, courts should
    determine applicability of statutory exemptions under PSTCA before
    considering nonjurisdictional grounds for summary judgment).
    9
    Moser, 
    supra note 3
    . See, also, Amend v. Nebraska Pub. Serv. Comm., 
    298 Neb. 617
    , 
    905 N.W.2d 551
     (2018).
    10
    See Moser, 
    supra note 3
    . Accord Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
     (2017).
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    EDWARDS v. DOUGLAS COUNTY
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    308 Neb. 259
    The sovereign immunity of the State and its political subdi-
    visions is not a matter of judicial fiat; it is constitutional. Neb.
    Const. art. V, § 22, 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.” Earlier versions of our state
    constitution did likewise. 11 We have long held that this consti-
    tutional 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. 12 The Legislature
    has enacted the PSTCA to govern tort claims against politi-
    cal subdivisions.
    [4] Under the PSTCA, a political subdivision has no liability
    for the torts of its officers, agents, or employees, “except to
    the extent, and only to the extent, provided by the [PSTCA].” 13
    In suits brought under the PSTCA, a political subdivision is
    “liable in the same manner and to the same extent as a private
    individual under like circumstances,” except “as otherwise pro-
    vided in the [PSTCA].” 14 Through the PSTCA, the Legislature
    has allowed a limited waiver of a political subdivision’s sov-
    ereign immunity with respect to some, but not all, types of
    tort claims. 15
    [5-7] Section 13-910 of the PSTCA expressly exempts cer-
    tain tort claims from the limited waiver of sovereign immu-
    nity. Stated differently, the exemptions in § 13-910 describe
    the types of tort claims for which a political subdivision
    has not consented to be sued. When an exemption under the
    11
    See State v. Mortensen, 
    69 Neb. 376
    , 
    95 N.W. 831
     (1903).
    12
    See, e.g., Burke v. Board of Trustees, 
    302 Neb. 494
    , 
    924 N.W.2d 304
    (2019); McKenna v. Julian, 
    277 Neb. 522
    , 
    763 N.W.2d 384
     (2009),
    abrogated in part, Doe v. Board of Regents, 
    280 Neb. 492
    , 
    788 N.W.2d 264
     (2010), overruled, Davis, 
    supra note 10
    .
    13
    § 13-902. See Britton v. City of Crawford, 
    282 Neb. 374
    , 
    803 N.W.2d 508
    (2011).
    14
    § 13-908.
    15
    See Rutledge, 
    supra note 3
    .
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    EDWARDS v. DOUGLAS COUNTY
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    PSTCA applies, the political subdivision is immune from the
    claim and the proper remedy is to dismiss it for lack of subject
    matter jurisdiction. 16 Because it is jurisdictional, courts should
    determine the applicability of a statutory exemption under the
    PSTCA before considering nonjurisdictional grounds for sum-
    mary judgment. 17
    Immunity for Claims Arising
    Out of Assault
    As pertinent here, § 13-910(7) of the PSTCA exempts from
    the waiver of sovereign immunity “[a]ny claim arising out
    of assault, battery, false arrest, false imprisonment, malicious
    prosecution, abuse of process, libel, slander, misrepresentation,
    deceit, or interference with contract rights.” We have some-
    times referred to this exemption broadly as the “intentional
    tort” exemption. 18 And because the language of the intentional
    tort exemption is nearly identical under both § 13-910(7) of
    the PSTCA and 
    Neb. Rev. Stat. § 81-8
    ,219(4) (Reissue 2014)
    the State Tort Claims Act (STCA), 19 we have applied our cases
    construing the exemption under the PSTCA to cases under the
    STCA, and vice versa. 20
    [8-11] When construing any statutory exemption under the
    PSTCA or the STCA, courts apply settled propositions of
    statutory construction. Statutory language is to be given its
    plain and ordinary meaning, and an appellate court will not
    resort to interpretation to ascertain the meaning of words which
    are plain, direct, and unambiguous. 21 Additionally, Nebraska
    16
    See Lambert, 
    supra note 8
    .
    17
    
    Id.
    18
    See, e.g., Moser, 
    supra note 3
    ; Rutledge, 
    supra note 3
    ; Britton, supra
    note 13.
    19
    
    Neb. Rev. Stat. §§ 81-8
    ,209 to 81-8,235 (Reissue 2014).
    20
    See, Moser, 
    supra note 3
    ; Amend, supra note 9.
    21
    Moser, 
    supra note 3
    .
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    courts have long followed the rule that statutes purporting to
    waive the protection of sovereign immunity are to be strictly
    construed in favor of the sovereign and against waiver. 22 As a
    corollary to this canon of construction, and in order to strictly
    construe the PSTCA against a waiver of sovereign immunity,
    we apply a broad reading to statutory exemptions from a
    waiver of sovereign immunity. 23 A waiver of sovereign immu-
    nity 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. 24
    Over the past 15 years, this court has issued five published
    opinions addressing the meaning and scope of the phrase
    “[a]ny claim arising out of assault” as used in the intentional
    tort exemptions of the PSTCA and the STCA. 25 When analyz-
    ing this language, most of our cases have given the phrase
    its plain meaning and faithfully applied principles of strict
    construction to avoid judicially expanding the Legislature’s
    22
    See, e.g., id.; Brown v. State, 
    305 Neb. 111
    , 
    939 N.W.2d 354
     (2020); Jill
    B. & Travis B. v. State, 
    297 Neb. 57
    , 
    899 N.W.2d 241
     (2017); Geddes v.
    York County, 
    273 Neb. 271
    , 
    729 N.W.2d 661
     (2007); Hoiengs v. County
    of Adams, 
    245 Neb. 877
    , 
    516 N.W.2d 223
     (1994); Wiseman v. Keller, 
    218 Neb. 717
    , 
    358 N.W.2d 768
     (1984); Gentry v. State, 
    174 Neb. 515
    , 
    118 N.W.2d 643
     (1962); Rumbel v. Ress, 
    166 Neb. 839
    , 
    91 N.W.2d 36
     (1958),
    modified on denial of rehearing 
    167 Neb. 359
    , 
    92 N.W.2d 904
    ; Frye v.
    Sibbitt, 
    145 Neb. 600
    , 
    17 N.W.2d 617
     (1945); Anstine v. State, 
    137 Neb. 148
    , 
    288 N.W. 525
     (1939), overruled on other grounds, Beatrice Manor v.
    Department of Health, 
    219 Neb. 141
    , 
    362 N.W.2d 45
     (1985).
    23
    See, Brown, 
    supra note 22
    ; Reiber v. County of Gage, 
    303 Neb. 325
    , 
    928 N.W.2d 916
     (2019); Stick v. City of Omaha, 
    289 Neb. 752
    , 
    857 N.W.2d 561
     (2015).
    24
    Moser, 
    supra note 3
    ; Jill B. & Travis B., supra note 22.
    25
    See, e.g., Moser, 
    supra note 3
    ; Rutledge, 
    supra note 3
    ; Britton, supra note
    13; Doe v. Omaha Pub. Sch. Dist., 
    273 Neb. 79
    , 
    727 N.W.2d 447
     (2007),
    overruled, Moser, 
    supra note 3
    ; Johnson v. State, 
    270 Neb. 316
    , 
    700 N.W.2d 620
     (2005).
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    limited waiver of sovereign immunity. 26 Some of our cases
    have considered U.S. Supreme Court opinions construing
    the Federal Tort Claims Act (FTCA), which also excludes
    certain intentional torts, including assault, from the federal
    government’s waiver of sovereign immunity. 27 But we have
    not always agreed with the reasoning of the U.S. Supreme
    Court majority, 28 in part because that Court does not always
    adhere to the same strict construction principles this court fol-
    lows when construing statutes purporting to waive sovereign
    immunity. 29 And of course, neither the reasoning nor the hold-
    ings of federal cases construing the FTCA have any binding
    precedential effect on this court’s construction of Nebraska’s
    statutory language.
    26
    See, Moser, 
    supra note 3
     (applying strict construction principles to
    determine scope of assault and battery exemption); Rutledge, 
    supra note 3
     (same); Britton, supra note 13 (same); Johnson, 
    supra note 25
     (same).
    Compare Doe, 
    supra note 25
     (making no reference to strict construction
    principles when determining scope of assault and battery exemption).
    27
    See 
    28 U.S.C. § 2680
    (h) (2018).
    28
    See, e.g. Moser, 
    supra note 3
     (rejecting reasoning of U.S. Supreme Court
    majority and agreeing instead with reasoning of dissent in Sheridan v.
    United States, 
    487 U.S. 392
    , 
    108 S. Ct. 2449
    , 
    101 L. Ed. 2d 352
     (1988));
    Johnson, 
    supra note 25
     (agreeing with reasoning of Sheridan concurrence
    rather than majority).
    29
    See, Moser, 
    supra note 3
     (observing U.S. Supreme Court does not
    uniformly apply strict construction principles to waivers of sovereign
    immunity under FTCA); Davis, 
    supra note 10
    , 297 Neb. at 974, 902
    N.W.2d at 183 (observing U.S. Supreme Court “has refused to hold that
    the FTCA exceptions are subject to the general rule that a waiver of
    sovereign immunity will be strictly construed in favor of the sovereign”).
    See, also, 14 Charles Alan Wright et al., Federal Practice and Procedure
    § 3658.2 at 688 (4th ed. 2015) (observing that when interpreting scope
    of exceptions to waivers of sovereign immunity under FTCA, the U.S.
    Supreme Court has said rules of strict construction are not implicated
    and “‘unhelpful’” to inquiry); Gregory C. Sisk, Twilight for the Strict
    Construction of Waivers of Federal Sovereign Immunity, 
    92 N.C. L. Rev. 1245
     (2014) (same).
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    Before addressing the arguments advanced by the parties
    in this appeal, it is helpful to review our previous opin-
    ions construing the scope and meaning of the intentional tort
    exemption. In the 2005 case of Johnson v. State, 30 a prisoner
    brought a tort action against the State, seeking to recover
    damages for personal injury after being sexually assaulted
    by a prison guard. The trial court found that her claim arose
    out of an assault and was barred by sovereign immunity. On
    appeal, the prisoner argued that her claim did not arise out of
    assault, but instead arose from independent acts of governmen-
    tal negligence that allowed the assault to occur, including the
    State’s negligent hiring and supervision of the prison guard.
    Applying principles of strict construction, Johnson held that
    even though the claim had been framed as the negligent failure
    to prevent an assault, it fell squarely within the intentional tort
    exemption. Johnson agreed with Justice Kennedy’s concur-
    rence in the U.S. Supreme Court case of Sheridan v. United
    States, 31 quoting:
    “If the allegation is that the Government was negli-
    gent in the supervision or selection of the employee and
    that the intentional tort occurred as a result, the inten-
    tional tort exception . . . bars the claim. Otherwise, liti-
    gants 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 purposes of the [intentional
    tort] exception.” 32
    Johnson also quoted the reasoning of four U.S. Supreme Court
    justices in United States v. Shearer, 33 stating that a plaintiff
    30
    Johnson, 
    supra note 25
    .
    31
    Sheridan, 
    supra note 28
     (Kennedy, J., concurring).
    32
    Johnson, 
    supra note 25
    , 
    270 Neb. at 322
    , 
    700 N.W.2d at 625
     (quoting
    Sheridan, 
    supra note 28
     (Kennedy, J., concurring)).
    33
    United States v. Shearer, 
    473 U.S. 52
    , 
    105 S. Ct. 3039
    , 
    87 L. Ed. 2d 38
    (1985).
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    “‘cannot avoid the reach of [the intentional tort exemption] by
    framing her complaint in terms of negligent failure to prevent
    the assault and battery.’” 34
    Two years after deciding Johnson, we again considered the
    scope and application of the intentional tort exemption. In Doe
    v. Omaha Pub. Sch. Dist., 35 a student sued the school district
    for personal injury after being sexually assaulted by a class-
    mate on school grounds. The trial court found the claim arose
    out of an assault and was barred by the PSTCA’s intentional
    tort exemption. On appeal, the student argued the claim did not
    arise out of assault, but instead arose from the school district’s
    negligent failure to protect her from a foreseeable act of sexual
    violence by a classmate. We identified the dispositive issue as
    “determin[ing] the breadth of the phrase ‘[a]ny claim arising
    out of assault’ as it is used in § 13-910(7).” 36 But in addressing
    this issue, Doe neither referenced nor applied traditional prin-
    ciples of strict construction.
    Our opinion in Doe acknowledged that if the student had
    been sexually assaulted by an employee of the school district,
    her claim would be barred by sovereign immunity under the
    holding and reasoning in Johnson. But because the student
    had been sexually assaulted by a classmate, rather than a gov-
    ernmental employee, Doe implied that different reasoning was
    appropriate. While Johnson had rejected the reasoning of the
    Sheridan majority in favor of the concurrence, Doe expressly
    relied on the majority’s reasoning that “the negligence of other
    Government employees who allowed a foreseeable assault and
    battery to occur may furnish a basis for Government liabil-
    ity that is entirely independent of [the assailant’s] employ-
    ment status.” 37 Doe described this reasoning as persuasive
    and held that the student’s claim was not barred by sovereign
    34
    Johnson, supra note 25, 
    270 Neb. at 320
    , 
    700 N.W.2d at 624
    .
    35
    Doe, 
    supra note 25
    .
    36
    
    Id. at 86
    , 
    727 N.W.2d at 455
    .
    37
    See Sheridan, 
    supra note 28
    , 
    487 U.S. at 401
    .
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    immunity because it did “not arise from an assault, but, rather,
    from an alleged negligent failure to protect a student from a
    foreseeable act of violence.” 38
    We next considered the scope of the intentional tort exemp-
    tion in 2009, when deciding McKenna v. Julian. 39 There,
    the plaintiff sued the city and a city police officer, seek-
    ing to recover damages based on allegations that the officer
    had assaulted him during an improper arrest. The trial court
    dismissed the lawsuit, finding, among other things, that the
    claims were barred by the PSTCA’s intentional tort exemp-
    tion. On appeal, the plaintiff argued his claims did not arise
    from assault, battery, or false arrest, but instead arose from
    the officer’s negligent use of excessive force. We rejected this
    argument. Applying strict construction principles and our rea-
    soning in Johnson, we found that even when framed as a claim
    of excessive force, the arrestee’s claim was barred as a matter
    of law by the intentional tort exemption.
    In the 2011 case of Britton v. City of Crawford, 40 police
    officers shot and killed a 16-year-old burglary suspect dur-
    ing a standoff. The personal representative for the suspect’s
    estate brought a wrongful death and survival action against
    the city under the PSTCA, alleging police were negligent
    in the tactics used when confronting the suspect. The trial
    court dismissed the action, finding the claims were barred
    by the assault and battery exemption under § 13-910(7) of
    the PSTCA. We affirmed, explaining that the intentional tort
    exemption “‘“does not merely bar claims for assault or bat-
    tery; in sweeping language it excludes any claim arising out
    of assault or battery.”’” 41 Britton applied principles of strict
    construction and held the language of the exemption includes
    38
    Doe, 
    supra note 25
    , 273 Neb. at 86, 
    727 N.W.2d at 456
    .
    39
    McKenna, 
    supra note 12
    .
    40
    Britton, supra note 13.
    41
    Id. at 384-85, 803 N.W.2d at 517 (emphasis in original).
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    claims that “‘“sound in negligence but stem from [an assault
    or] battery,”’” 42 reasoning:
    While other factors may have contributed to the situa­
    tion which resulted in [the suspect’s] death, but for the
    battery, there would have been no claim. No semantic
    recasting of events can alter the fact that the shooting was
    the immediate cause of [the suspect’s] death and, conse-
    quently, the basis of [the personal representative’s] claim.
    Even if it is possible that negligence [of the officers] was
    a contributing factor to [the suspect’s] death, the alleged
    negligence was inextricably linked to a battery [and the
    claim] is thus barred by the PSTCA. 43
    We again considered the scope of the intentional tort exemp-
    tion in the 2019 case of Rutledge v. City of Kimball. 44 There,
    the plaintiff alleged she had been attacked and choked by a
    city employee while visiting a city building. She sued the
    city under the PSTCA, alleging it negligently failed to super-
    vise its employee and failed to protect the public from the
    employee despite knowledge of his violent propensities. The
    district court granted the city’s motion to dismiss, finding the
    claim was barred by the PSTCA exemption for claims arising
    out of assault. On appeal, the plaintiff relied on our opinion
    in Doe to argue that her claim did not arise out of an assault,
    but instead arose from the city’s breach of an independent
    duty to protect her from foreseeable acts of violence by its
    ­employee. 45 We found Doe was inapplicable because, among
    other things, the assailant in Doe was not a governmental
    employee. We instead applied our reasoning from Johnson and
    principles of strict construction to conclude that the plaintiff
    could not avoid the intentional tort exemption by reframing
    42
    
    Id. at 385
    , 803 N.W.2d at 517.
    43
    Id. at 386, 803 N.W.2d at 518.
    44
    Rutledge, 
    supra note 3
    .
    45
    See 
    id.
     See, also, Doe, 
    supra note 25
    .
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    her claim as the negligent failure to prevent a foreseeable
    assault by a governmental employee. 46 We reasoned:
    While [the plaintiff’s] claim is characterized as one of
    negligence, no claim would exist but for [the employee’s]
    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 plaintiff’s] claim is inextricably linked to a
    battery. Accordingly, the alleged negligence falls within
    the [assault and battery] exception to the PSTCA and the
    [c]ity has not waived its sovereign immunity. 47
    The concurring opinion in Rutledge agreed that the plain-
    tiff’s claim was barred by the intentional tort exemption, but
    questioned whether Doe had been correctly decided, noting
    that its reasoning was contrary to principles of strict con-
    struction and its holding was inconsistent with the rest of
    our cases construing the plain language of the intentional
    tort exemption. 48
    Our most recent opportunity to consider the scope of the
    intentional tort exemption was the 2020 case of Moser. 49 In
    Moser, we applied the intentional tort exemption to bar a neg-
    ligence claim brought by the estate of a man who was fatally
    assaulted by a cellmate while housed in a state prison facility.
    The decedent’s estate alleged the State had negligently double-
    bunked the two inmates and had failed to protect the decedent
    from a foreseeable assault. The district court dismissed the
    suit, finding the State was immune under the STCA’s discre-
    tionary function exemption. 50 We affirmed the dismissal, but
    46
    See Rutledge, 
    supra note 3
    . See, also, Johnson, 
    supra note 25
    .
    47
    Rutledge, 
    supra note 3
    , 
    304 Neb. at 602
    , 935 N.W.2d at 753.
    48
    See Rutledge, 
    supra note 3
     (Papik, J., concurring). See, also, Doe, 
    supra note 25
    .
    49
    Moser, 
    supra note 3
    .
    50
    See § 81-8,219(1).
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    on different sovereign immunity grounds. Moser concluded
    the negligence claim arose out of an assault and fell squarely
    within the STCA’s exemption for “[a]ny claim arising out
    of assault.” 51
    Moser reexamined our reasoning in Doe and expressly over-
    ruled it, describing Doe as an “outlier” 52 and concluding it was
    inconsistent with the rest of our cases construing and applying
    the intentional tort exemption. Moser correctly observed that
    neither Doe, nor the majority opinion in Sheridan on which
    it relied, purported to apply principles of strict construction
    when determining the scope of the intentional tort exemption. 53
    Because the reasoning in Doe could not be reconciled with
    the rest of our cases and was contrary to the settled principle
    that courts must apply a broad reading to statutory exemptions
    in order to strictly construe waivers of sovereign immunity, 54
    Moser concluded that Doe had been wrongly decided. The rea-
    soning in Doe had been premised on the same semantic recast-
    ing we had consistently rejected in cases where the assault was
    committed by a governmental actor, 55 and Moser emphasized
    that when the statutory text is given its plain meaning, there is
    no principled reason why the scope and meaning of the phrase
    “arising out of assault” should be construed differently depend-
    ing on whether the assailant was a governmental or a nongov-
    ernmental actor.
    51
    § 81-8,219(4).
    52
    Moser, 
    supra note 3
    , 
    307 Neb. at 28
    , 948 N.W.2d at 202. See, also, Doe,
    
    supra note 25
    .
    53
    See Moser, 
    supra note 3
    . See, also, Sheridan, 
    supra note 28
    .
    54
    See, Moser, 
    supra note 3
    ; Brown, 
    supra note 22
    ; Jill B. & Travis B., supra
    note 22; Geddes, 
    supra note 22
    ; Hoiengs, 
    supra note 22
    ; Wiseman, 
    supra note 22
    ; Gentry, 
    supra note 22
    ; Rumbel, 
    supra note 22
    ; Frye, supra note
    22; Anstine, supra note 22.
    55
    See, e.g. Moser, 
    supra note 3
    ; Rutledge, 
    supra note 3
    ; Britton, supra
    note 13.
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    We pause here to note that in Moser, and again in this
    case, our dissenting colleague suggests that the exemption in
    § 13-910(7) for “[a]ny claim arising out of assault” should
    be construed to apply only to claims that arise out of assaults
    “committed by governmental employees.” But the qualifying
    language urged by the dissent appears nowhere in § 13-910(7).
    And given that other PSTCA exemptions expressly refer-
    ence claims based on the acts “of an employee” 56 or “by an
    employee,” 57 the omission of such qualifying language from
    § 13-910(7) cannot be ignored. Nor do we find persuasive the
    dissent’s suggestion that the PSTCA’s definitions of a “[t]ort
    claim” 58 or “[e]mployee” 59 make it necessary to read into the
    plain language of § 13-910(7) the qualifying phrase “commit-
    ted by governmental employees.” It is not within the province
    of the courts to read a meaning into a statute that is not there
    or to read anything direct and plain out of a statute. 60 The
    language used by the Legislature in § 13-910(7) is strikingly
    broad; without qualification or limitation, it exempts from
    the waiver of sovereign immunity “[a]ny claim arising out of
    56
    § 13-910(1) (referring to “[a]ny claim based upon an act or omission of an
    employee of a political subdivision”). See, also, § 13-901(2) (referring to
    “[a]ny claim based upon the exercise or performance of . . . a discretionary
    function or duty on the part of the political subdivision or an employee of
    the political subdivision”).
    57
    § 13-910(4) (“[n]othing in this subdivision shall be construed to limit a
    political subdivision’s liability for any claim based upon the negligent
    execution by an employee of the political subdivision in the issuance of
    a certificate of title”). See, also, § 13-910(8) (referring to “[a]ny claim
    by an employee of the political subdivision which is covered by the
    Nebraska Workers’ Compensation Act”); § 13-910(10) (“[n]othing in this
    subdivision shall be construed to limit a political subdivision’s liability for
    any claim arising out of the operation of a motor vehicle by an employee
    of the political subdivision”).
    58
    See § 13-903(4).
    59
    See § 13-903(3).
    60
    State ex rel. BH Media Group v. Frakes, 
    305 Neb. 780
    , 
    943 N.W.2d 231
    (2020).
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    assault.” We respectfully disagree with the dissent’s sugges-
    tion that this language can reasonably be construed to exempt
    only claims arising out of assaults committed by governmental
    employees. And even if we could find plausible textual support
    for the alternative construction urged by the dissent, it would
    not satisfy our long-established rule that a waiver of sovereign
    immunity is to be 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. 61
    There is no basis in the plain text of § 13-910(7), or in our
    binding precedent construing that statute, for the alternate
    interpretation urged by the dissent.
    [12] Instead, with the exception of Doe, our cases have
    construed the intentional tort exemption to give it the full
    breadth demanded by its plain text and our canons of con-
    struction. We have said the exemption applies whenever an
    assault “is essential to the claim,” 62 and it bars claims against
    the government which “sound in negligence but stem from
    [an assault or] battery.” 63 We have also said the exemption
    encompasses claims that “would not exist without an assault
    or battery,” 64 and claims which are “‘inextricably linked to [an
    assault or] battery.’” 65 All of these articulations speak to the
    same point: when 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
    61
    See, e.g., Moser, 
    supra note 3
    ; Jill B. & Travis B., supra note 22; Lamb v.
    Fraternal Order of Police Lodge No. 36, 
    293 Neb. 138
    , 
    876 N.W.2d 388
    (2016); Zawaideh v. Nebraska Dept. of Health & Human Servs., 
    285 Neb. 48
    , 
    825 N.W.2d 204
     (2013); Britton, supra note 13; King v. State, 
    260 Neb. 14
    , 
    614 N.W.2d 341
     (2000); Logan v. Department of Corr. Servs.,
    
    254 Neb. 646
    , 
    578 N.W.2d 44
     (1998); Wiseman, 
    supra note 22
    .
    62
    Moser, 
    supra note 3
    , 
    307 Neb. at 29
    , 948 N.W.2d at 202.
    63
    Britton, supra note 13, 282 Neb. at 385, 803 N.W.2d at 517.
    64
    Moser, 
    supra note 3
    , 
    307 Neb. at 29
    , 948 N.W.2d at 202.
    65
    Id. at 27, 948 N.W.2d at 201 (quoting Britton, supra note 13).
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    is barred by the intentional tort exemption under the PSTCA.
    The plain language of the exemption and our principles of
    strict construction require this result no matter how the tort
    claim has been framed 66 and regardless of the assailant’s
    employment status. 67
    Edwards’ Claim Arises
    Out of Assault
    On appeal, Douglas County contends that no matter how
    Edwards frames her negligence claim against the county, it
    “aris[es] out of assault” 68 and thus falls squarely within the
    PSTCA’s intentional tort exemption. Edwards concedes that
    her damages stem from the assault by Clark, but she argues
    that her claim does not arise out of the assault, and instead is
    based on “a completely independent incident . . . the delay of
    law enforcement arriving to the scene of the emergency caused
    by Douglas County’s failure to exercise reasonable care in han-
    dling [John’s 911 calls].” 69
    For the same reasons we concluded the negligence claims in
    Johnson, McKenna, Britton, Rutledge, and Moser arose out of
    assault and were barred by sovereign immunity, we must like-
    wise conclude that Edwards’ negligence claim against Douglas
    County arises out of an assault and is barred by § 13-910(7).
    Edwards alleges that the county negligently mishandled the
    911 calls with John and that, as a result, emergency personnel
    did not arrive in a timely manner and Edwards “continue[d]
    to be held hostage [and was] sexually assaulted at gunpoint”
    66
    See Moser, 
    supra note 3
    ; Rutledge, 
    supra note 3
    ; Britton, supra note 13.
    67
    See Moser, 
    supra note 3
    . Accord Sheridan, 
    supra note 28
    , 
    487 U.S. at 411
    (O’Connor, J. dissenting; Rehnquist, C.J., and Scalia, J., join) (observing
    that plain language of FTCA intentional tort exception applies “whether
    the person committing the intentional tort is a Government employee,
    a nonemployee, or a Government employee acting outside the scope of
    his office”).
    68
    See § 13-910(7).
    69
    Memorandum brief for appellant in opposition to appellee’s motion for
    summary dismissal or affirmance at 3.
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    by Clark. At oral argument before this court, Edwards’ coun-
    sel conceded that all of Edwards’ claimed damages stemmed
    from the assault by Clark. This presents a classic example of
    a claim which sounds in negligence but which stems from,
    and is inextricably linked to, an assault or battery. Edwards is
    alleging that, because of the government’s negligent handling
    of the 911 calls, she was injured by an intentional assault. And
    while 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, we do not have such
    a claim before us today.
    [13] We understand Edwards’ briefing to suggest that her
    negligence claim is factually different from those considered
    in Johnson, McKenna, Britton, Rutledge, and Moser, because
    those plaintiffs alleged the government was negligent in failing
    to protect against a foreseeable assault, and Edwards is alleg-
    ing the government’s negligence delayed its response to an
    assault in progress. This argument relies on the sort of seman-
    tic recasting of events this court has consistently rejected. 70
    Plaintiffs cannot circumvent the assault and battery exemp-
    tion through “artful pleading.” 71 Because the Legislature has
    broadly exempted from the PSTCA “[a]ny claim arising out
    of assault,” 72 it is immaterial whether Edwards has alleged the
    assault occurred because the government negligently failed to
    prevent it or because the government negligently delayed in
    responding to it. No matter how it is framed, Edwards’ claim of
    governmental negligence arises out of assault and is barred by
    sovereign immunity under § 13-910(7) of the PSTCA.
    Nothing in this opinion should be understood to dimin-
    ish the seriousness of the assault experienced by Edwards
    or to excuse any mishandling of the 911 calls for help.
    But the Legislature has expressly preserved the government’s
    sovereign immunity for negligence claims that arise out of
    70
    See, Moser, 
    supra note 3
    ; Britton, supra note 13.
    71
    Jill B. & Travis B., supra note 22, 297 Neb. at 93, 899 N.W.2d at 265.
    72
    § 13-910(7).
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    assaults, and Edwards has brought such a claim. The provi-
    sions of § 13-910(7) are plain and unambiguous, and this
    court must apply those provisions as written. 73 The sweeping
    language of the exemption simply allows no other reasonable
    construction. 74
    [14] The dissent asks important public policy questions
    about the impact of immunizing the government from a claim
    that it failed to respond quickly enough to stop a violent assault
    against an innocent victim. Important public policy questions
    are also presented by calls to waive immunity and expand the
    types of claims that can result in money judgments against a
    political subdivision and impact the public fisc. But balanc-
    ing these public policy concerns is not a matter the Nebraska
    Constitution leaves to the courts. 75 No matter how compelling
    the facts of a particular case may be, the judiciary does not
    have the power to waive sovereign immunity. 76
    [15,16] Neb. Const. art. II, § 1, precludes us from exer-
    cising powers belonging to the Legislature, and decisions
    on whether and how to limit the government’s potential tort
    liability belong to the Legislature. 77 Courts must not, through
    judicial construction, usurp the Legislature’s role in draw-
    ing the line between governmental liability and immunity. 78
    Prior courts have strayed from this foundational principle. 79
    This court will not.
    73
    See Glasson v. Board of Equal. of City of Omaha, 
    302 Neb. 869
    , 
    925 N.W.2d 672
     (2019).
    74
    See, Moser, 
    supra note 3
    ; Jill B. & Travis B., supra note 22.
    75
    See Neb. Const. art. V, § 22.
    76
    See id. See, also, McKenna, 
    supra note 12
    .
    77
    See Neb. Const. art. V, § 22.
    78
    See Jill B. & Travis B., supra note 22.
    79
    See Brown v. City of Omaha, 
    183 Neb. 430
    , 434, 
    160 N.W.2d 805
    , 808
    (1968) (plurality holds that while Legislature might have “the ultimate
    word,” courts also have power to abrogate sovereign immunity from tort
    liability arising out of ownership, use, and operation of motor vehicles).
    See, also, Doe, 
    supra note 25
    .
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    We therefore leave to the Legislature, after careful study
    and full debate of the social and economic consequences, the
    public policy decision of whether to expand the government’s
    tort liability for claims arising out of assault. For the sake of
    completeness, we note that because Edwards’ claim against
    the county is plainly barred by the intentional tort exemption,
    we express no opinion on whether it is otherwise the type of
    claim for which a private person would be liable in tort under
    Nebraska law. 80
    No Waiver of Sovereign Immunity
    Under § 86-441
    In opposing the county’s motion for summary affirmance on
    grounds of sovereign immunity, Edwards argues that even if
    her claim is barred by the PSTCA’s intentional tort exemption,
    we should consider whether the ETCSA operates as a waiver of
    sovereign immunity “separate and apart from that provided for
    in [the PSTCA].” 81 Edwards refers this court to § 86-441 of the
    ETCSA, which provides:
    In contracting for such 911 service and in providing such
    911 service, except for failure to use reasonable care or
    for intentional acts, each governing body, public safety
    agency, and service supplier and their employees and
    agents shall be immune from liability or the payment for
    any damages in the performance of installing, maintain-
    ing, or providing 911 service.
    80
    See § 13-903(4) (“[t]ort claim shall mean any claim against a political
    subdivision for money only on account of . . . personal injury or death,
    caused by the negligent or wrongful act or omission of any employee of
    the political subdivision . . . under circumstances in which the political
    subdivision, if a private person, would be liable to the claimant for such
    damage”); § 13-908 (“in all suits brought under [the PSTCA] the political
    subdivision shall be liable in the same manner and to the same extent as a
    private individual under like circumstances”).
    81
    Memorandum brief for appellant in opposition to appellee’s motion for
    summary dismissal or affirmance at 4.
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    Before the district court, Edwards argued this statutory provi-
    sion established Douglas County’s legal duty. But on appeal,
    we understand Edwards to contend that § 86-441 should
    be construed as a waiver of sovereign immunity for claims
    alleging negligence against any provider of 911 services.
    We disagree.
    The Legislature has declared:
    [N]o political subdivision of the State of Nebraska shall
    be liable for the torts of its officers, agents, or employees,
    and that no suit shall be maintained against such political
    subdivision or its officers, agents, or employees on any
    tort claim except to the extent, and only to the extent,
    provided by the [PSTCA]. 82
    [17] As such, the PSTCA provides “‘the exclusive means’” 83
    by which to maintain a tort claim against a political subdivi-
    sion and its employees. The PSTCA does expressly reference
    and incorporate some statutes outside the PSTCA, 84 but the
    PSTCA makes no reference to § 86-441 or to any other statute
    contained in the ETCSA. Similarly, the ETCSA makes no ref-
    erence whatsoever to the PSTCA. 85
    [18] Moreover, we see nothing in the express language of
    § 86-441 which indicates the Legislature intended to waive sov-
    ereign immunity for claims against political subdivisions. The
    82
    § 13-902.
    83
    Connelly v. City of Omaha, 
    284 Neb. 131
    , 151, 
    816 N.W.2d 742
    , 760
    (2012). Accord Geddes, 
    supra note 22
    .
    84
    See, e.g., §§ 13-903 to 13-907; § 13-909; § 13-910; §§ 13-912 to 13-915;
    § 13-917; § 13-918; §§ 13-923 to 13-925; § 13-928.
    85
    Compare, e.g., 
    Neb. Rev. Stat. § 13-2520
     (Reissue 2012) (joint public
    agency may be sued subject to PSTCA); 
    Neb. Rev. Stat. § 47-1005
     (Supp.
    2019) (tort claims for violation of Healthy Pregnancies for Incarcerated
    Women Act governed by PSTCA); 
    Neb. Rev. Stat. § 71-15
    ,168(1) (Reissue
    2018) (tort claims against housing agency governed by PSTCA); 
    Neb. Rev. Stat. § 76-2328
     (Reissue 2018) (claims under One-Call Notification
    System Act subject to PSTCA).
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    plain text of the statute provides “immun[ity] from liability” 86
    to governing bodies, public safety agencies, and service sup-
    pliers and their employees and agents, “except for failure to
    use reasonable care or for intentional acts.” 87 This language
    appears to except both negligent and intentional acts, and it is
    thus unclear what sort of immunity the Legislature intended
    to confer. But we express no opinion in that regard, because
    whatever the proper interpretation may be of the language in
    § 86-441, it is not a waiver of sovereign immunity.
    As stated, statutes purporting to waive the protection of
    sovereign immunity are strictly construed in favor of the sov-
    ereign and against the waiver. 88 A waiver of sovereign immu-
    nity 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. 89 If there
    is any doubt as to whether immunity has been waived, the
    sovereign must prevail. 90 Applying these settled principles,
    we do not construe § 86-441 as an express waiver of sover-
    eign immunity.
    CONCLUSION
    The Legislature has broadly exempted from the PSTCA
    “[a]ny claim arising out of assault,” 91 and Edwards’ negli-
    gence claim against Douglas County falls squarely within this
    exemption. When an exemption under the PSTCA applies,
    the political subdivision is immune from suit, and the proper
    remedy is to dismiss the action for lack of subject matter
    jurisdiction. 92
    86
    § 86-441.
    87
    Id.
    88
    Moser, 
    supra note 3
    .
    89
    
    Id.
    90
    See Jill B. & Travis B., supra note 22.
    91
    § 13-910(7).
    92
    Lambert, 
    supra note 8
    .
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    Although the district court entered a judgment of dismissal
    on different grounds, we affirm that dismissal on grounds
    of sovereign immunity. 93 The county’s motion for summary
    affirm­ance or dismissal is overruled as moot.
    Affirmed.
    93
    See Davis, 
    supra note 10
     (providing that appellate court may affirm lower
    court’s ruling that reaches correct result, albeit on different reasoning).
    Miller-Lerman, J., dissenting.
    For all the reasons explained in my dissent in Moser v. State,
    
    307 Neb. 18
    , 
    948 N.W.2d 194
     (2020), I again respectfully
    disagree with the majority’s conclusion that, based on sover-
    eign immunity, the governmental entity cannot be sued for its
    alleged antecedent negligence if there is an assault by anyone
    anywhere in the picture.
    In this case, Julie Edwards’ brother John Edwards called
    the 911 emergency dispatch service at 10:12:17 a.m., after
    being shot by Kenneth Clark. As John lay dying in the base-
    ment, he informed the 911 operator that he had been shot in
    the stomach. Thereafter, in a series of seven calls, the 911
    operator variously asked John to move around and to provide
    an exact address for the house, and when John repeated that
    he had been shot, the 911 operator said in a call at 10:33:58,
    “[y]eah, I heard that.” At this point John dialed 911 a long
    time ago. As 911 dawdled, Clark took Edwards upstairs and
    ­sex­ually assaulted her at gunpoint. Eventually, law enforce-
    ment were dispatched at 10:54:06 a.m. and arrived at approxi-
    mately 10:58:41 a.m.
    In her complaint, Edwards alleged that Douglas County
    (County) had been negligent by virtue of the actions of its
    911 operator, who failed to use reasonable care in handling
    the emergency calls such that the emergency personnel did
    not arrive at the house in a timely manner. Edwards specifi-
    cally alleged that “[w]hile waiting for emergency personnel
    to arrive, [she] was sexually assaulted at gunpoint.” Edward’s
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    claim was that the 911 operator was dilatory; she did not claim
    that the 911 operator assaulted her.
    In Doe v. Omaha Pub. Sch. Dist., 
    273 Neb. 79
    , 
    727 N.W.2d 447
     (2007), this court followed the reasoning of the U.S.
    Supreme Court’s holding in Sheridan v. United States, 
    487 U.S. 392
    , 
    108 S. Ct. 2449
    , 
    101 L. Ed. 2d 352
     (1988), but in
    Moser, 
    supra,
     and again today, the majority refuses to follow
    U.S. Supreme Court precedent. Moser overruled Doe based
    on the dubious notion that the U.S. Supreme Court and the
    Nebraska Supreme Court interpret the same statutory language
    so differently that adhering to U.S. Supreme Court precedent
    would offend Nebraska. As I explained in my Moser dissent,
    there is no meaningful difference between statutory interpre-
    tation habits of the Nebraska Supreme Court and the U.S.
    Supreme Court in this regard and reading the text of 
    Neb. Rev. Stat. § 13-910
    (7) (Reissue 2012) in the context of the Political
    Subdivisions Tort Claims Act (PSTCA) provisions of which it
    is a part, including the definition of “claim” in 
    Neb. Rev. Stat. § 13-903
    (4) (Reissue 2012), I conclude that the intentional tort
    assault exception to the waiver of sovereign immunity does not
    apply; hence, the County is subject to suit in this case.
    New Theory by the Government
    on Appeal—Again.
    As an aside, I mention that this is one of a number of recent
    cases in which the governmental party introduced a new theory
    for the first time on appeal—in this instance, in a motion for
    summary dismissal or affirmance on the eve of oral argument.
    See Moser v. State, 
    307 Neb. 18
    , 
    948 N.W.2d 194
     (2020)
    (Miller-Lerman, J., dissenting) (noting that theory raised for
    first time in appellate brief); Candyland, LLC v. Nebraska
    Liquor Control Comm., 
    306 Neb. 169
    , 
    944 N.W.2d 740
     (2020)
    (Miller-Lerman, J., concurring) (noting that theory raised for
    first time at oral argument); State v. Vann, 
    306 Neb. 91
    , 
    944 N.W.2d 503
     (2020) (Miller-Lerman, J., concurring) (noting
    that theory raised for first time at oral argument resulting in
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    opportunistic and novel use of “plain error” review to overrule
    precedent). Unlike the County’s approach in the trial court,
    where the County asserted that it owed no duty to Edwards,
    about which I make no comment, the County jumped on the
    Moser bandwagon for the first time late in the appeal and now
    contends that the complaint should be dismissed based on the
    intentional tort assault exception to the waiver of sovereign
    immunity. Although Edwards may have a burden in being able
    to prove negligence by the County, in my view, the case should
    not be dismissed based on sovereign immunity, and further, the
    record showed sufficient facts to survive a motion for sum-
    mary judgment.
    The Nebraska Statute and the
    Federal Statute Should Be
    Read the Same Way.
    As in Moser, 
    supra,
     a case involving inmate assault, the
    majority reasons that the government’s earlier negligence arose
    out of the subsequent assault by a nongovernmental assailant.
    The majority believes that Nebraska abides by a unique stat­
    utory interpretation scheme, so it cannot follow the interpreta-
    tion of the same language as found in Sheridan, 
    supra.
     But, as
    I explained in my dissent in Moser, the interpretation scheme
    is the same, i.e., read the waiver of immunity strictly and the
    exceptions thereto broadly, and therefore, one should expect
    the same result. The majority, however, has chosen to ignore
    the wisdom of the U.S. Supreme Court precedent and insists
    that Nebraska should read the same language differently and
    that this reading is what the Nebraska Legislature intended. I
    respectfully disagree.
    As I explained in my Moser dissent and continue to believe,
    the majority has got it wrong. In that dissent, I stated:
    The U.S. Supreme Court has addressed the waiver of
    sovereign immunity and the “arising out of assault”
    exception language. Just like Nebraska, the U.S. Supreme
    Court has stated that a sovereign immunity waiver “will
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    be strictly construed . . . in favor of the sovereign.”
    Lane v. Pena, 
    518 U.S. 187
    , 192, 
    116 S. Ct. 2092
    , 
    135 L. Ed. 2d 486
     (1996). And just like Nebraska, one jus-
    tice has summarized the applicable U.S. Supreme Court
    law as follows: “In cases where, as here, the question
    whether a particular claim is subject to an exception is
    disputed, we have construed the FTCA [Federal Tort
    Claims Act] exceptions broadly to preclude claims for
    actions Congress intended to except from the FTCA’s
    general waiver of immunity.” Dolan v. Postal Service,
    
    546 U.S. 481
    , 499 n.3, 
    126 S. Ct. 1252
    , 
    163 L. Ed. 2d 1079
     (2006) . . . .
    The U.S. Supreme Court has warned, however, that
    “‘unduly generous interpretations of the exceptions run
    the risk of defeating the central purpose of the statute,’
    . . . which ‘waives the Government’s immunity from suit
    . . . .’” 
    Id.,
     
    546 U.S. at 492
     (Thomas, J., dissenting). And
    we too have resisted the temptation to accord unduly
    generous interpretations of exceptions which would
    defeat the waiver. See, e.g., Brown, 
    305 Neb. at 122
    , 939
    N.W.2d at 361 (declining to read language of exception
    “so broadly” that it “would judicially expand” exception).
    Applying U.S. Supreme Court precedent and according a
    broad reading to the exception provisions of the FTCA to
    a fact pattern akin to the instant case, the U.S. Court of
    Appeals for the Second Circuit stated: “Despite the broad
    reading given to [the FTCA] section 2680(h)’s ‘arising
    out of’ language [equivalent to Nebraska’s §§ 81-8,219(4)
    and 13-910(7)], [the section] may not bar mixed claims
    of negligence and intentional conduct in the relatively
    uncommon case” where the negligence claim is indepen-
    dent of the intentional tort. Guccione v. U.S., 
    847 F.2d 1031
    , 1037 (2d Cir. 1988). So even applying a broad
    reading to the intentional tort exception, cases like the
    instant matter are not barred where there is independent
    negligence by the government.
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    Given the above, the Nebraska Supreme Court and
    the U.S. Supreme Court clearly share the same approach
    to the statutory language at issue. Nevertheless, with-
    out making an apt comparison, the majority insists the
    Nebraska approach to statutory interpretation is so dif-
    ferent that reading the same language requires a result in
    Nebraska different from that of the U.S. Supreme Court’s
    controlling authority.
    Moser v. State, 
    307 Neb. 18
    , 35-36, 
    948 N.W.2d 194
    , 206
    (2020) (Miller-Lerman, J., dissenting).
    In my view, the majority’s act of broadening the assault
    exception through unnecessary interpretation is a judicial
    expansion beyond the statute’s text and is a usurpation of the
    legislative power.
    The Intentional Tort Assault Exception Applies to
    Claims Alleging Intentional Torts Committed
    by Governmental Employees But Not
    to Intentional Torts Committed by
    Nongovernmental Assailants.
    The majority states that there is no basis for applying the
    exception “differently depending on whether the assailant was
    a governmental or a nongovernmental actor.” To the contrary,
    the difference is in the very text of the PSTCA statute, which
    the majority avoids quoting in its intentional tort exception
    analysis. The statutory language shows that the language of the
    intentional tort exception (sometimes referred to as “exemp-
    tion”) applies to intentional torts committed by governmental
    employees but not to intentional torts committed by nongov-
    ernmental actors.
    The majority relies on the § 13-910(7) exception, but fails
    to explain—“exception to what?” The answer is that the excep-
    tion is applicable only to a “claim” that a governmental
    employee—not a nongovernmental person—committed the
    very tort sought to be excepted. That is, the tort allegedly com-
    mitted by the governmental employee must be the same tort
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    for which the exception is applicable. So, if the governmental
    employee commits an assault, the governmental entity can
    receive immunity based on the assault exception to the waiver
    of sovereign immunity. But if the governmental employee
    commits a nonassault act of negligence, the governmental
    entity cannot receive immunity based on the assault exception
    where the assault was committed by a random individual who
    is not a governmental employee.
    The PSTCA’s general waiver of immunity applies only
    to “tort claims” of its employees. 
    Neb. Rev. Stat. § 13-902
    (Reissue 2012). The type of claims covered by the PSTCA
    waiver of immunity are defined in 
    Neb. Rev. Stat. § 13-903
    (4)
    (Reissue 2012), where “claim” is defined as:
    Tort claim shall mean any claim against a political sub-
    division 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 political subdivision, while acting
    within the scope of his or her office or employment,
    under circumstances in which the political subdivision, if
    a private person, would be liable to the claimant for such
    damage, loss, injury, or death but shall not include any
    claim accruing before January 1, 1970.
    Thus, under § 13-903(4), a “claim” is an “act or omission”
    of an “employee” of the political subdivision. An “employee”
    under § 13-903(3) is defined as “[e]mployee of a political sub-
    division shall mean any one or more officers or employees of
    the political subdivision . . . .”
    The exception on which the majority relies in its resort to
    statutory interpretation is found in § 13-910, which provides:
    The [PSTCA] shall not apply to:
    ....
    (7) Any claim [defined as a negligent or wrongful act
    or omission by a governmental employee in § 13-903(4),]
    arising out of assault, battery, false arrest, false impris-
    onment, malicious prosecution, abuse of process, libel,
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    slander, misrepresentation, deceit, or interference with
    contract rights.
    Construing the same language, the U.S. Supreme Court
    has explained:
    The exception should therefore be construed to apply
    only to claims that would otherwise be authorized by
    the basic waiver of sovereign immunity. Since an assault
    by a person who was not employed by the Government
    could not provide the basis for a claim under the FTCA
    [or the [PSTCA], 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
    governmental subdivision] employees.
    Sheridan v. United States, 
    487 U.S. 392
    , 400, 
    108 S. Ct. 2449
    ,
    
    101 L. Ed. 2d 352
     (1988) (emphasis supplied).
    The definitional statute, § 13-903(4), which is omitted from
    the majority’s analysis, states “claim” “shall mean . . . neg-
    ligent or wrongful act or omission of any employee of the
    political subdivision.” (Emphasis supplied.) Under the PSTCA,
    sovereign immunity is waived for certain acts, and such acts
    give rise to “claims” which form the basis of viable lawsuits
    unless such claims are excepted. “Claim” is a statutory word
    of art. So the exception for “[a]ny claim arising out of assault”
    in § 13-910(7) by definition plainly means that a “negligent or
    wrongful act or omission of an employee of the political subdi-
    vision” of the kind described will be excepted. See § 13-903(4)
    (emphasis supplied).
    These statutory words defining “claim” are plain, direct, and
    unambiguous. We have repeatedly said:
    When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory lan-
    guage, understood in context. Rogers v. Jack’s Supper
    Club, 
    304 Neb. 605
    , 
    935 N.W.2d 754
     (2019). Statutory
    language is to be given its plain and ordinary meaning,
    and an appellate court will not resort to interpretation
    to ascertain the meaning of statutory words which are
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    plain, direct, and unambiguous. 
    Id.
     It is not within the
    province of the courts to read meaning into a statute that
    is not there or to read anything direct and plain out of a
    statute. 
    Id.
    Parks v. Hy-Vee, 
    307 Neb. 927
    , 944-45, 
    951 N.W.2d 504
    , 518
    (2020). Instead of accepting that the text of these statutes is
    plain, the majority opinion takes a lengthy excursion in stat­
    utory interpretation, and in so doing, it ignores the controlling
    statutory text defining “claim” and this context to which excep-
    tions are applied.
    So in the instant case, we ask: What is the alleged wrong-
    ful act of the governmental employee which forms the basis
    for the “claim”? Edwards’ “claim” against the County is based
    on its alleged negligent handling of the 911 calls. The claim
    is based on what the County’s employees did in the course of
    their employment, and no one is claiming in this case that a
    County employee assaulted Edwards. The claim does not arise
    out of the assault; the assault is an independent intentional tort.
    Nevertheless, the majority persists in misconstruing the statute.
    As in Moser v. State, 
    307 Neb. 18
    , 
    948 N.W.2d 194
     (2020),
    the plaintiff alleges that negligence was committed by a gov-
    ernmental entity and that the assault is the subsequent injury
    or event. In my view, the majority gets it backward; it reasons
    that the later “assault,” which is a listed act in § 13-910(7), led
    to the earlier negligence claim.
    What if Clark stole money out of Edwards’ purse during
    the period of the delay? Stealing is not listed as an excepted
    act in § 13-910(7). Would the majority reason that the claim
    of negligently delayed 911 handling arose from the subse-
    quent theft and, because theft is not on the list of § 13-910(7),
    that the County is not immune and remains subject to suit?
    That is, in the majority view, the Legislature, in enacting
    § 13-910(7), believed that whether a political subdivision can
    be sued for its earlier negligence depends on the fortuitous
    nature of the crime committed later by the nongovernmental
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    employee. The majority’s reasoning is neither warranted by
    statutory text nor sensible.
    Referring to the language and purpose of the statute, I ask:
    Should a government’s liability for its earlier negligent act
    depend on the type of crime a third party later commits? Does
    that make the government’s act nontortious? What is the incen-
    tive for good 911 hygiene if 911 negligence can be obliterated
    by the later criminal act of a third party? Is the reading of the
    statute by the majority what the Legislature intended?
    We recently stated that “[i]t is a court’s duty to discover,
    if possible, the legislative intent from the statute itself.” In re
    Guardianship & Conservatorship of J.F., 
    307 Neb. 452
    , 458,
    
    949 N.W.2d 496
    , 502 (2020). And we have long held that it
    is presumed that the Legislature intended a sensible, rather
    than an absurd, result. Hoiengs v. County of Adams, 
    254 Neb. 64
    , 
    574 N.W.2d 498
     (1998). We have specifically applied the
    preference for a sensible reading to the PSTCA. E.g., Stick v.
    City of Omaha, 
    289 Neb. 752
    , 
    857 N.W.2d 561
     (2015). With
    the foregoing in mind, I respectfully believe that the interpre-
    tation of the majority of the intentional tort exception in the
    PSTCA is neither supported by the text of the statute, sensible,
    nor intended by the Legislature. Instead, it is an unwarranted
    judicial expansion of a statutory exception.
    The Court Invites the
    Legislature to Act.
    The majority reading strays from the text of the statute,
    strays from the principles of statutory construction in general
    and in the sovereign immunity jurisprudence in particular,
    strays from the reading of the same language by the U.S.
    Supreme Court, strays from a sensible reading of § 13-910,
    and strays from the fact the Legislature has long acquiesced in
    this court’s reading of the assault exception in Doe v. Omaha
    Pub. Sch. Dist., 273 Neb 79, 
    727 N.W.2d 447
     (2007), and
    in my view, the majority inappropriately comments on fiscal
    considerations in its legal analysis. After having judicially
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    expanded the statutory intentional tort exception, the major-
    ity finds itself in the awkward position of entreating the
    Legislature to consider restoration of the intentional tort assault
    exception to the status quo ante Moser. I welcome restoration
    by the Legislature.
    The majority view developed in Moser has broad conse-
    quences. This case involves a woman seeking to avoid vio-
    lence. What if 911 dawdled while your daughter was being
    sexually assaulted at gunpoint?
    

Document Info

Docket Number: S-19-1195

Citation Numbers: 308 Neb. 259

Filed Date: 1/29/2021

Precedential Status: Precedential

Modified Date: 1/29/2021

Authorities (34)

Robert C. Guccione v. United States , 847 F.2d 1031 ( 1988 )

Parks v. Hy-Vee , 307 Neb. 927 ( 2020 )

Edwards v. Douglas County , 308 Neb. 259 ( 2021 )

McKenna v. Julian , 277 Neb. 522 ( 2009 )

Gentry v. State , 174 Neb. 515 ( 1962 )

Logan v. Department of Correctional Services , 254 Neb. 646 ( 1998 )

Wiseman v. Keller , 218 Neb. 717 ( 1984 )

Davis v. State , 297 Neb. 955 ( 2017 )

State ex rel. BH Media Group v. Frakes , 305 Neb. 780 ( 2020 )

Burke v. Board of Trustees , 302 Neb. 494 ( 2019 )

Moser v. State , 307 Neb. 18 ( 2020 )

Rutledge v. City of Kimball , 304 Neb. 593 ( 2019 )

Reiber v. County of Gage , 303 Neb. 325 ( 2019 )

State v. Vann , 306 Neb. 91 ( 2020 )

Hoiengs v. County of Adams , 254 Neb. 64 ( 1998 )

Brown v. City of Omaha , 183 Neb. 430 ( 1968 )

Lambert v. Lincoln Public Schools , 306 Neb. 192 ( 2020 )

Rogers v. Jack's Supper Club , 304 Neb. 605 ( 2019 )

Brown v. State , 305 Neb. 111 ( 2020 )

Glasson v. Board of Equal. of City of Omaha , 302 Neb. 869 ( 2019 )

View All Authorities »

Cited By (79)

SID No. 67 v. State , 309 Neb. 600 ( 2021 )

Baker-Heser v. State , 309 Neb. 979 ( 2021 )

In re Guardianship of Nicholas H. , 309 Neb. 1 ( 2021 )

SID No. 67 v. State , 309 Neb. 600 ( 2021 )

Baker-Heser v. State , 309 Neb. 979 ( 2021 )

SID No. 67 v. State , 309 Neb. 600 ( 2021 )

In re Guardianship of Nicholas H. , 309 Neb. 1 ( 2021 )

Edwards v. Douglas County , 308 Neb. 259 ( 2021 )

In re Guardianship of Nicholas H. , 309 Neb. 1 ( 2021 )

Williams v. State , 310 Neb. 588 ( 2021 )

In re Guardianship of Nicholas H. , 309 Neb. 1 ( 2021 )

Williams v. State , 310 Neb. 588 ( 2021 )

SID No. 67 v. State , 309 Neb. 600 ( 2021 )

In re Guardianship of Nicholas H. , 309 Neb. 1 ( 2021 )

In re Guardianship of Nicholas H. , 309 Neb. 1 ( 2021 )

Edwards v. Douglas County , 308 Neb. 259 ( 2021 )

Edwards v. Douglas County , 308 Neb. 259 ( 2021 )

In re Guardianship of Nicholas H. , 309 Neb. 1 ( 2021 )

Baker-Heser v. State , 309 Neb. 979 ( 2021 )

Baker-Heser v. State , 309 Neb. 979 ( 2021 )

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