Doe v. State , 312 Neb. 665 ( 2022 )


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    11/18/2022 01:07 AM CST
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    DOE V. STATE
    Cite as 
    312 Neb. 665
    John Doe, appellant, v.
    State of Nebraska et al., appellees.
    ___ N.W.2d ___
    Filed October 21, 2022.   No. S-21-472.
    1. Tort Claims Act: Appeal and Error. Whether a complaint alleges a
    cause of action under the State Tort Claims Act, or alleges a claim which
    is precluded by an exemption under the State Tort Claims Act, presents
    a question of law.
    2. Jurisdiction. Subject matter jurisdiction is a question of law. When a
    jurisdictional question does not involve a factual dispute, the issue is a
    matter of law.
    3. Judgments: Appeal and Error. An appellate court reviews questions of
    law independently of the lower court’s conclusion.
    4. Jurisdiction: Immunity: Appeal and Error. A state’s sovereign immu-
    nity from suit is a matter of subject matter jurisdiction that an appellate
    court cannot ignore.
    5. Jurisdiction. Whether a court has subject matter jurisdiction is a thresh-
    old issue that should be resolved prior to an examination of the merits.
    6. Negligence: Liability: Public Officers and Employees. A state is not
    liable to a person injured by the negligence of its employees, unless
    there is a statute or constitutional provision permitting recovery.
    7. Constitutional Law: Legislature: Immunity: Waiver. Nebraska’s
    Constitution provides that “[t]he state may sue and be sued, and the
    Legislature shall provide by law in what manner and in what courts
    suits shall be brought.” But this constitutional provision is not self-
    executing, and it requires legislative action to waive the State’s sover-
    eign immunity.
    8. Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action
    waiving sovereign immunity, a trial court lacks subject matter jurisdic-
    tion over an action against the State.
    9. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
    only where stated by the most express language of a statute or by such
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    overwhelming implication from the text as will allow no other reason-
    able construction.
    10.   ____: ____: ____. Statutes purporting to waive the protection of sover-
    eign immunity are to be strictly construed in favor of the sovereign and
    against waiver.
    11.   Tort Claims Act: Legislature: Immunity: Waiver. Through the State
    Tort Claims Act, the Legislature has waived the State’s sovereign immu-
    nity with respect to some, but not all, types of tort claims.
    12.   Tort Claims Act: Immunity: Waiver. The definition of “tort claim” in
    
    Neb. Rev. Stat. § 81-8
    ,210(4) (Reissue 2014) fundamentally limits the
    type of tort claims that are subject to the State Tort Claims Act’s limited
    waiver of immunity.
    13.   Tort Claims Act: Legislature: Immunity: Waiver. Under 
    Neb. Rev. Stat. § 81-8
    ,210(4) (Reissue 2014), the Legislature has waived the
    State’s sovereign immunity for those tort claims that (1) seek money
    damages only; (2) are on account of property damage, personal injury,
    or death; (3) are caused by the negligent or wrongful act or omission of
    a state employee acting within the scope of his or her office or employ-
    ment; and (4) occur under circumstances in which a private person
    would be liable to the claimant.
    14.   Tort Claims Act: Immunity: Waiver: Liability. Under the plain lan-
    guage of 
    Neb. Rev. Stat. §§ 81-8
    ,210(4) and 81-8,215 (Reissue 2014),
    the State Tort Claims Act’s limited waiver of sovereign immunity
    applies only to tort claims for which a private person, under like circum-
    stances, would be liable in tort to the plaintiff.
    15.   Tort Claims Act: Jurisdiction: Motions to Dismiss. Plaintiffs bringing
    an action under the State Tort Claims Act must plausibly allege a “tort
    claim” as that term is defined under the act, both to survive a motion
    to dismiss for failure to state a claim and to establish subject matter
    jurisdiction.
    16.   Tort Claims Act: Negligence: Proof. A negligence action brought
    under the State Tort Claims Act has the same elements as a negligence
    action brought against a private individual—a plaintiff must show a
    legal duty owed by the defendant to the plaintiff, a breach of such duty,
    causation, and damages.
    17.   Tort Claims Act: Jurisdiction: Negligence: Liability: Proof. To estab-
    lish subject matter jurisdiction under the State Tort Claims Act, a plain-
    tiff must plausibly allege a “tort claim” as defined under the act. That
    requires, inter alia, plausibly alleging that the State, if a private person,
    would be liable to the plaintiff for the negligent or wrongful act or omis-
    sion under like circumstances.
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    18. Statutes: Legislature: Intent: Torts: Liability. A court may determine
    that a statute gives rise to a tort duty to act in the manner required by
    the statute where (1) the statute is enacted to protect a class of persons
    which includes the plaintiff, (2) the statute is intended to prevent the
    particular injury that has been suffered, and (3) the statute is intended
    by the Legislature to create a private liability as distinguished from one
    of a public character.
    19. Statutes: Legislature: Torts: Liability: Courts. Where the Legislature
    has not by its express terms or by implication provided for civil tort
    liability for failure to comply with a statute, under principles of judicial
    restraint, it is prudent that courts not do so.
    20. Statutes: Legislature: Intent: Torts: Courts. When considering
    whether a statute gives rise to a tort duty, courts should consider the
    express remedy, if any, imposed for violating the statute, and whether
    such a remedy is inconsistent with a purported legislative intention to
    create a tort duty.
    21. Statutes: Torts: Liability. 
    Neb. Rev. Stat. § 29-3523
     (Cum. Supp.
    2020) does not give rise to a legal duty that would subject a private
    person to civil tort liability for failing to act in the manner prescribed by
    statute.
    22. Negligence. Nebraska does not recognize a common-law duty not to
    disclose sealed criminal history information.
    23. Appeal and Error. An appellate court is not obligated to engage in an
    analysis that is not necessary to adjudicate the case and controversy
    before it.
    Appeal from the District Court for Lancaster County: Kevin
    R. McManaman, Judge. Affirmed.
    Zachary W. Lutz-Priefert and John A. McWilliams, of Gross
    & Welch, P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, and James A.
    Campbell, Solicitor General, for appellees.
    Kevin Ruser and Ryan P. Sullivan, of University of Nebraska
    Civil Clinical Law Program, and Deena Keilany and Alicia
    Christensen, Senior Certified Law Students, for amicus curiae
    Nebraska College of Law Civil Clinic.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    Stacy, J.
    Relying exclusively on the State Tort Claims Act (STCA), 1
    John Doe filed suit against the State of Nebraska, the Nebraska
    State Patrol (NSP), the Nebraska Department of Correctional
    Services (DCS), and DCS director Scott Frakes, alleging they
    negligently disclosed and reviewed his sealed criminal history
    record information in violation of 
    Neb. Rev. Stat. § 29-3523
    (Cum. Supp. 2020). The district court dismissed the action on
    a number of grounds, including that Doe’s claim was barred
    by the doctrine of sovereign immunity. Doe appealed, and we
    granted the appellees’ petition to bypass the Nebraska Court
    of Appeals.
    We affirm the dismissal of Doe’s tort action on sovereign
    immunity grounds, but our reasoning differs somewhat from
    that of the district court. We conclude that Doe has not alleged
    a tort claim as that term is defined in the STCA, and the State
    has therefore not waived its sovereign immunity with respect
    to Doe’s claim.
    I. BACKGROUND
    Because this case was dismissed at the pleading stage, the
    facts recited below are taken from the allegations of Doe’s
    complaint and the attachments thereto. Doe was convicted of
    a felony in 2000, and a few years later, he was convicted of a
    misdemeanor. Sometime thereafter, Doe applied for pardons. In
    2016, the Nebraska Board of Pardons granted his application
    and issued pardons for both convictions.
    After receiving the pardons, Doe filed a motion asking the
    sentencing court to seal his criminal history record information
    pursuant to § 29-3523(5). The court granted Doe’s motion and
    sealed the criminal history record information relating to both
    of his pardoned convictions. Because Doe’s negligence claim
    is premised on alleged violations of § 29-3523, we provide
    1
    
    Neb. Rev. Stat. §§ 81-8
    ,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
    2020).
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    a brief overview of that statute now and address the relevant
    statutory text in more detail later in our analysis.
    Section 29-3523 authorizes a court to order the seal-
    ing of criminal history record information under certain
    circumstances, and it is part of the Security, Privacy, and
    Dissemination of Criminal History Information Act (Criminal
    History Act). 2 As relevant here, that act imposes certain obli-
    gations on “[c]riminal justice agenc[ies]” 3 once “[c]riminal
    history record information” 4 has been ordered sealed pursu-
    ant to § 29-3523. Ordinarily, criminal history records are con-
    sidered public records. 5 But in 2019, the Legislature amended
    § 29-3523 to provide that once a court has ordered criminal
    history records to be sealed, they “are not part of the public
    record and shall not be disseminated to persons other than
    criminal justice agencies,” 6 except in certain limited circum-
    stances. Moreover, § 29-3523 instructs that when responding
    to a public inquiry about criminal history records which have
    been sealed, a criminal justice agency “shall respond . . . in
    the same manner as if there were no criminal history record
    information and criminal history record information shall not
    be disseminated to any person other than a criminal justice
    agency.” 7 The statute also provides that in “any application
    for employment . . . a person cannot be questioned with
    respect to any offense for which the record is sealed” 8 and
    2
    See 
    Neb. Rev. Stat. §29-3501
     (Reissue 2016) (providing that 
    Neb. Rev. Stat. §§ 29-209
    , 29-210, 29-3501 to 29-3528, and 81-1423 (Reissue 2016
    & Cum. Supp. 2020) “shall be known and may be cited as the Security,
    Privacy, and Dissemination of Criminal History Information Act”).
    3
    See § 29-3509.
    4
    See § 29-3506.
    5
    See § 29-3520.
    6
    § 29-3523(7).
    7
    § 29-3523(1).
    8
    § 29-3523(8).
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    that if such an inquiry is made, the applicant may “respond
    as if the offense never occurred.” 9
    1. Doe Applies for Job With DCS
    In September 2019, Doe applied for a job as a caseworker
    at DCS. A question on the application form asked whether
    Doe had a criminal history, and Doe responded, “[N]o.” DCS
    interviewed Doe for the position, and thereafter, it requested
    a criminal history background check as part of the applica-
    tion process. According to the allegations of the complaint,
    NSP wrongfully provided DCS with criminal history record
    information that included Doe’s sealed records. Doe was sub-
    sequently advised by DCS that he was not being hired for the
    caseworker position due to his criminal history.
    2. Doe Files Suit
    In July 2020, Doe filed this negligence action in the district
    court for Lancaster County against the State of Nebraska,
    NSP, DCS, Frakes, and “Unknown Employees of the State
    of Nebraska.” The district court permitted Doe to file the
    complaint using a pseudonym, and he proceeds likewise on
    appeal.
    The complaint alleged a single cause of action against all
    named defendants, described as “Negligent Disclosure and
    Review of Sealed Records in Violation of 
    Neb. Rev. Stat. § 29-3523
    .” Doe alleged that when DCS requested his criminal
    history records, it was not acting in its capacity as a criminal
    justice agency, but instead was making a public inquiry into
    Doe’s criminal history. Doe alleged that in response to this
    public inquiry, NSP “negligently disclosed” his sealed crimi-
    nal history records to DCS in violation of § 29-3523. He also
    alleged that DCS’ “consideration” of his sealed records was
    negligent and a violation of § 29-3523. The complaint alleged
    that this negligence “harmed” Doe and resulted in “lost income,
    9
    Id.
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    and benefits, including retirement benefits which he would
    have earned had he been employed by [DCS].” The complaint
    prayed for monetary damages in an amount to be determined
    at trial, an injunction prohibiting NSP from disclosing Doe’s
    criminal history records “except where explicitly allowed by
    statute,” and “expungement” of Doe’s criminal history records
    “to prevent future harms and injustices.”
    Doe did not serve the unknown defendants, and we do not
    address them further. The remaining defendants were served,
    and they responded as follows.
    DCS and Frakes moved to dismiss Doe’s complaint on two
    grounds: (1) The complaint failed to state a claim upon which
    relief could be granted, and (2) the claim was barred by sover-
    eign immunity. NSP did not join in the motion to dismiss and
    instead filed an answer. NSP’s answer expressly denied that
    it had disclosed Doe’s criminal history record information to
    DCS, and it alleged, as affirmative defenses, the same grounds
    on which the other defendants moved for dismissal.
    At the hearing on the motion to dismiss, the parties pre-
    sented only argument. DCS and Frakes argued that Doe’s com-
    plaint failed to state a claim because it contained no factual
    allegations showing they owed Doe a legal duty actionable
    in tort. Alternatively, they argued that even if a legal duty
    was owed, the discretionary function exemption to the STCA
    applied and barred Doe’s tort claim. In response, Doe argued
    that § 29-3523 created an actionable tort duty, and he argued
    that the discretionary function exemption did not apply to bar
    his claim because the Criminal History Act prescribed a spe-
    cific course of conduct that DCS and Frakes were required to
    follow regarding his sealed records.
    (a) Claims Against DCS and Frakes Dismissed
    In December 2020, the district court entered an order dis-
    missing the claims against DCS and Frakes. The court’s order
    recited various grounds for dismissal, but we recount only
    those pertaining to jurisdiction.
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    In that regard, the district court determined that Doe’s
    tort claim against DCS and Frakes was essentially one for
    common-law failure to hire and was barred by the STCA’s dis-
    cretionary function exemption. 10 After dismissing the claims
    against DCS and Frakes, the court, sua sponte, 11 directed the
    remaining parties to brief two additional issues bearing on
    its subject matter jurisdiction: (1) whether Doe pled a “tort
    claim” as defined under the STCA and (2) whether a viola-
    tion of § 29-3523 is actionable in tort. The court held a hear-
    ing to take up these jurisdictional questions once the briefing
    was complete.
    At the hearing on jurisdiction, the State and NSP argued
    the court lacked subject matter jurisdiction under the STCA
    because Doe had not alleged a “[t]ort claim” as defined in
    § 81-8,210(4). In relevant part, that statute provides:
    Tort claim means any claim against the State of Nebraska
    for money only on account of damage to or loss of prop-
    erty or on account of personal injury or death caused
    by the negligent or wrongful act or omission of any
    employee of the state, while acting within the scope of
    his or her office or employment, under circumstances in
    which the state, if a private person, would be liable to the
    claimant for such damage, loss, injury, or death . . . . 12
    The State and NSP argued that Doe had not alleged a “tort
    claim” as defined under the STCA because (1) his claim was
    not for money only, (2) he had not alleged a personal injury,
    and (3) the alleged violation of § 29-3523 was not a claim for
    which a private person could be liable under similar circum-
    stances. Additionally, the State and NSP argued that under
    10
    See § 81-8,219(1).
    11
    See Moser v. State, 
    307 Neb. 18
    , 22, 
    948 N.W.2d 194
    , 199 (2020) (holding
    State’s waiver of sovereign immunity under STCA is jurisdictional matter
    that “a court may consider sua sponte”).
    12
    § 81-8,210(4).
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    the test articulated in Claypool v. Hibberd, 13 § 29-3523 did
    not create an actionable tort duty which could support a claim
    for negligence.
    Doe disagreed. He argued the complaint sufficiently alleged
    a plausible “tort claim” under the STCA because it sought
    money damages, on account of a personal injury, caused by
    the negligent dissemination and consideration of his sealed
    criminal history records in violation of § 29-3523. Doe also
    argued that § 29-3523 created a tort duty which applies to gov-
    ernmental employees and private persons alike. Alternatively,
    he argued that if the court did not agree § 29-3523 created a
    tort duty, then it should find that Nebraska recognizes a general
    common-law duty prohibiting the dissemination and consider-
    ation of sealed criminal history records.
    (b) Sua Sponte Dismissal for
    Lack of Jurisdiction
    After considering arguments of the parties, the court entered
    an order dismissing Doe’s complaint, in its entirety, for lack of
    subject matter jurisdiction. The court recited several reasons
    why it lacked jurisdiction.
    First, the court concluded that Doe had not pled a “tort
    claim” under the STCA, reasoning primarily that Doe’s com-
    plaint failed to allege a “personal injury” within the mean-
    ing of § 81-8,210(4). Additionally, the court concluded that
    the Legislature did not create a tort duty when it enacted
    § 29-3523 of the Criminal History Act, so the alleged viola-
    tion of that statute did not present a tort claim for which the
    State had waived immunity under the STCA. The court also
    rejected Doe’s assertion that Nebraska recognized a common-
    law duty prohibiting the dissemination of truthful information
    about a person’s criminal history. Lastly, the court concluded
    that to the extent Doe’s complaint sought injunctive relief
    13
    Claypool v. Hibberd, 
    261 Neb. 818
    , 
    626 N.W.2d 539
     (2001).
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    and “expungement” of his criminal records, those remedies
    fell outside the STCA’s waiver of sovereign immunity. 14 The
    court thus determined it lacked subject matter jurisdiction over
    Doe’s claim under the STCA, and it dismissed the complaint in
    its entirety on that basis.
    Doe filed a timely appeal, and we granted the appellees’
    petition to bypass. After oral argument before this court, we
    requested supplemental briefing addressing whether, under
    Nebraska tort law, a private person under like circumstances
    would be liable to Doe. Supplemental briefs were received and
    considered, and we discuss the parties’ jurisdictional arguments
    later in our analysis.
    II. ASSIGNMENTS OF ERROR
    Doe assigns five errors which we consolidate and restate
    into two: (1) The district court erred when it determined Doe
    had not alleged a “tort claim” within the meaning of the STCA
    and thus dismissed the complaint for lack of subject matter
    jurisdiction, and (2) the district court erred when it determined
    the discretionary function exemption applied to bar Doe’s
    claim against DCS and Frakes.
    In support of his first assignment of error, Doe presents sev-
    eral arguments. First, he asserts that § 29-3523 of the Criminal
    History Act created a tort duty to conform to the requirements
    of the act and that the district court erred in concluding other-
    wise. Alternatively, he argues Nebraska recognizes a common-
    law duty to not disseminate or consider sealed criminal history
    information. Next, he argues the complaint alleged a plausible
    claim for personal injury, and the district court erred in con-
    cluding otherwise. And finally, he argues the district court
    14
    See Zawaideh v. Nebraska Dept. of Health & Human Servs., 
    285 Neb. 48
    ,
    58, 
    825 N.W.2d 204
    , 213 (2013) (holding definition of tort claim under
    STCA is for “‘money only’” and thus “exclude[s] nonmonetary claims,
    such as actions for injunctive relief”).
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    erred in concluding that the remedies of injunctive relief and
    expungement are barred by sovereign immunity.
    III. STANDARD OF REVIEW
    [1] Whether a complaint alleges a cause of action under the
    STCA, or alleges a claim which is precluded by an exemption
    under the SCTA, presents a question of law. 15
    [2] Subject matter jurisdiction is a question of law. 16 When
    a jurisdictional question does not involve a factual dispute, the
    issue is a matter of law. 17
    [3] An appellate court reviews questions of law indepen-
    dently of the lower court’s conclusion. 18
    IV. ANALYSIS
    1. Sovereign Immunity and
    Subject Matter Jurisdiction
    [4,5] A state’s sovereign immunity from suit is a matter
    of subject matter jurisdiction that an appellate court cannot
    ignore. 19 Whether a court has subject matter jurisdiction is a
    threshold issue that should be resolved prior to an examination
    of the merits. 20 We therefore begin our analysis by reviewing
    familiar principles of sovereign immunity which bear on the
    court’s subject matter jurisdiction in this case.
    [6-8] Nebraska has long recognized the “‘rule that a state
    is not liable to a person injured by the negligence of its
    employees, unless there is a statute or constitutional provision
    15
    See, Williams v. State, 
    310 Neb. 588
    , 
    967 N.W.2d 677
     (2021); Brown v.
    State, 
    305 Neb. 111
    , 
    939 N.W.2d 354
     (2020). Accord Edwards v. Douglas
    County, 
    308 Neb. 259
    , 
    953 N.W.2d 744
     (2021) (whether allegations of
    complaint set forth claims which are precluded by exemptions under
    Political Subdivisions Tort Claims Act presents question of law).
    16
    See 
    id.
    17
    See 
    id.
    18
    See 
    id.
    19
    See Edwards, 
    supra note 15
    .
    20
    Lambert v. Lincoln Public Schools, 
    306 Neb. 192
    , 
    945 N.W.2d 84
     (2020).
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    permitting recovery.’” 21 Nebraska’s Constitution provides that
    “[t]he state may sue and be sued, and the Legislature shall
    provide by law in what manner and in what courts suits
    shall be brought.” 22 But this constitutional provision is not
    self-executing, and it requires legislative action to waive the
    State’s sovereign immunity. 23 Absent legislative action waiv-
    ing sovereign immunity, a trial court lacks subject matter
    jurisdiction over an action against the State. 24
    [9,10] A waiver of sovereign immunity is found only where
    stated by the most express language of a statute or by such
    overwhelming implication from the text as will allow no other
    reasonable construction. 25 Nebraska courts follow the rule that
    statutes purporting to waive the protection of sovereign immu-
    nity are to be strictly construed in favor of the sovereign and
    against waiver. 26
    Doe’s complaint relies exclusively on the STCA for jurisdic-
    tion in this case. He alleged no other statutory basis for juris-
    diction over his tort claim, and he argued no other statutory
    basis for jurisdiction before the district court. We thus limit our
    jurisdictional analysis to the STCA.
    (a) STCA’s Limited Waiver
    of Sovereign Immunity
    [11] Under the plain language of the STCA, no tort claim
    “shall be maintained against the state, any state agency, or any
    employee of the state on any tort claim except to the extent,
    and only to the extent, provided by the [STCA].” 27 We have
    21
    See Jill B. & Travis B. v. State, 
    297 Neb. 57
    , 66, 
    899 N.W.2d 241
    , 250
    (2017).
    22
    Neb. Const. art. V, § 22.
    23
    See Jill B. & Travis B., supra note 21.
    24
    Burke v. Board of Trustees, 
    302 Neb. 494
    , 
    924 N.W.2d 304
     (2019).
    25
    Edwards, 
    supra note 15
    .
    26
    
    Id.
    27
    § 81-8,209.
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    recognized that through the STCA, the Legislature has waived
    the State’s sovereign immunity with respect to some, but not
    all, types of tort claims. 28
    When considering whether a particular tort claim falls
    within the STCA’s limited waiver of sovereign immunity, our
    reported opinions often focus on the applicability of the statu-
    tory exemptions set out in § 81-8,219. 29 This is because when
    one of those exemptions applies, the tort claim is not one for
    which the State has consented to be sued. 30 But, as we discuss
    next, the STCA also contains another, more fundamental, limi-
    tation on the waiver of sovereign immunity for tort claims—the
    statutory definition of “tort claim.”
    (i) Definition of “Tort Claim”
    For purposes of the STCA, the Legislature has defined “tort
    claim” in § 81-8,210(4). We quoted the relevant portions of
    that definition earlier in this opinion, and we repeat it here for
    convenience:
    Tort claim means any claim against the State of Nebraska
    for money only on account of damage to or loss of prop-
    erty or on account of personal injury or death caused
    by the negligent or wrongful act or omission of any
    employee of the state, while acting within the scope of
    his or her office or employment, under circumstances in
    which the state, if a private person, would be liable to the
    claimant for such damage, loss, injury, or death . . . . 31
    [12,13] The STCA’s definition of “tort claim” fundamentally
    limits the type of tort claims that are subject to the STCA’s
    limited waiver of sovereign immunity. Under this statutory
    28
    See, Williams, 
    supra note 15
    ; Moser, 
    supra note 11
    ; Brown, 
    supra note 15
    .
    29
    See, e.g., Wizinsky v. State, 
    308 Neb. 778
    , 
    957 N.W.2d 466
     (2021) (discre­
    tionary function exemption); Moser, 
    supra note 11
     (analyzing applicability
    of intentional tort exemption); Brown, 
    supra note 15
     (recreational activity
    exemption); Zawaideh, supra note 14 (misrepresentation exemption).
    30
    See Edwards, 
    supra note 15
    .
    31
    § 81-8,210(4) (emphasis supplied).
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    definition, the Legislature has waived the State’s sovereign
    immunity for those tort claims that (1) seek money damages
    only; (2) are on account of property damage, personal injury,
    or death; (3) are caused by the negligent or wrongful act or
    omission of a state employee acting within the scope of his or
    her office or employment; and (4) occur under circumstances
    in which a private person would be liable to the claimant.
    On appeal, the appellees argue that the claim alleged in Doe’s
    complaint failed to satisfy any of the definitional requirements
    for a tort claim under § 81-8,210(4). But we do not address all
    of the definitional requirements; instead, we focus our analy-
    sis on the last requirement, which limits tort claims under the
    STCA to those torts occurring under circumstances “in which
    the state, if a private person, would be liable to the claimant.” 32
    Similar language appears in § 81-8,215 of the STCA, which
    sets out the general waiver of sovereign immunity and provides
    that “[i]n all suits brought under the [STCA] the state shall be
    liable in the same manner and to the same extent as a private
    individual under like circumstances . . . .” Similar provisions
    appear in the Political Subdivisions Tort Claims Act. 33 As
    stated, our settled rules of statutory construction require that
    we strictly construe these waivers of sovereign immunity in
    favor of the sovereign.
    The “private person” provision in § 81-8,210(4) and the
    related “private individual” provision in § 81-8,215 have been
    part of the STCA since its adoption in 1969. 34 This court long
    ago recognized that through these statutory provisions, the
    Legislature consented to tort “liability on the part of the State
    under the same circumstances under which a private person
    would be liable.” 35 Our opinions discussing the STCA routinely
    32
    § 81-8,210(4).
    33
    See 
    Neb. Rev. Stat. §§ 13-903
    (4) and 13-908 (Reissue 2012).
    34
    See §§ 81-8,210(4) and 81-8,215 (Cum. Supp. 1969).
    35
    Cortes v. State, 
    191 Neb. 795
    , 798, 
    218 N.W.2d 214
    , 216 (1974).
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    recite the “private person” provisions, 36 but we have not previ-
    ously addressed the jurisdictional import of such provisions on
    the STCA’s waiver of immunity. This case affords an opportu-
    nity to develop our case law on this jurisdictional issue.
    In their supplemental briefing to this court, the parties agree
    that under the plain language of §§ 81-8,210(4) and 81-8,215
    (Reissue 2014), the Legislature’s waiver of the State’s sover-
    eign immunity is limited to claims for which a private person
    under like circumstances would be liable in tort to the claimant
    under Nebraska law. Both parties point to a dearth of Nebraska
    case law addressing this aspect of the STCA, and, as a result,
    they devote considerable discussion to federal cases address-
    ing similar “private person” provisions within the Federal Tort
    Claims Act (FTCA). 37
    The FTCA provides, in relevant part, that the “United States
    shall be liable, respecting the provisions of this title relating to
    tort claims, in the same manner and to the same extent as a pri-
    vate individual under like circumstances . . . .” 38 Additionally,
    § 1346(b)(1) gives the federal district courts
    36
    See, e.g., Davis v. State, 
    297 Neb. 955
    , 970, 
    902 N.W.2d 165
    , 181 (2017)
    (reciting both provisions and noting that “the state defendants could not
    have committed the tortious acts set out in [plaintiff’s] complaint as
    private individuals”). See, also, Moser, 
    supra note 11
    , 
    307 Neb. at 23
    , 948
    N.W.2d at 199 (“[a]s pertinent here, the STCA waives the State’s sovereign
    immunity for tort claims against the State on account of personal injury
    caused by the negligent or wrongful act or omission of any employee of
    the State, while acting within the scope of his or her office or employment,
    under circumstances in which the State, if a private person, would be liable
    to the claimant for such injury”); Northland Ins. Co. v. State, 
    242 Neb. 10
    , 14, 
    492 N.W.2d 866
    , 869 (1992) (holding “an action for contribution
    is covered under [the STCA], but only if a private person would be liable
    to the claimant for the damage, loss, injury, or death”); Blitzkie v. State,
    
    228 Neb. 409
    , 415, 
    422 N.W.2d 773
    , 777 (1988) (“[s]ubject to certain
    exempted claims, the [STCA] provides for the State’s liability for its torts
    the same as a private person may be liable for torts”).
    37
    See 
    28 U.S.C. §§ 1346
    (b) and 2671 to 2680 (2018).
    38
    § 2674.
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    exclusive jurisdiction of civil actions on claims against
    the United States, for money damages, . . . for injury or
    loss of property, or personal injury or death caused by the
    negligent or wrongful act or omission of any employee
    of the Government while acting within the scope of his
    office or employment, under circumstances where the
    United States, if a private person, would be liable to the
    claimant in accordance with the law of the place where
    the act or omission occurred.”
    The U.S. Supreme Court has construed these federal statu-
    tory provisions “to mean what they say, namely, that the
    United States waives sovereign immunity ‘under circum-
    stances’ where local law would make a ‘private person’ liable
    in tort.” 39 The Supreme Court has referred to this as the
    FTCA’s “‘private person’ standard,” 40 and other federal courts
    have described it as the “private analogue” requirement of the
    FTCA. 41 Regardless of nomenclature, federal courts have con-
    sistently held that the private person requirement is jurisdic-
    tional in nature and must be satisfied for the FTCA’s limited
    waiver of sovereign immunity to apply. 42 As the U.S. Supreme
    Court succinctly stated recently in Brownback v. King, 43 when
    bringing a claim under the FTCA, “a plaintiff must plausi-
    bly allege that ‘the United States, if a private person, would
    be liable to the claimant’ under state law both to survive [a
    39
    United States v. Olson, 
    546 U.S. 43
    , 44, 
    126 S. Ct. 510
    , 
    163 L. Ed. 2d 306
    (2005) (emphasis in original).
    40
    
    Id.,
     
    546 U.S. at 46
    .
    41
    See, e.g., Green Acres Enterprises, Inc. v. U.S., 
    418 F.3d 852
    , 855 (8th Cir.
    2005). See, also, D.J.C.V. v. United States, No. 20 Civ. 5747, 
    2022 WL 1912254
     (S.D.N.Y. June 3, 2022).
    42
    See, e.g., Smith v. U.S., 
    14 F.4th 1228
     (11th Cir. 2021); Gutrejman v. U.S.,
    
    527 F. Supp. 3d 1
     (D.C. 2021); In re Marjory Stoneman Douglas High
    School, 
    482 F. Supp. 3d 1273
     (S.D. Fla. 2020); McGonagle v. U.S., 
    155 F. Supp. 3d 130
     (D. Mass. 2016).
    43
    Brownback v. King, ___ U.S. ___, 
    141 S. Ct. 740
    , 749, 
    209 L. Ed. 2d 33
    (2021).
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    motion to dismiss for failure to state a claim] and to establish
    subject-matter jurisdiction.”
    The Nebraska Legislature patterned the STCA after the
    FTCA, 44 and the “private person” language under the STCA
    largely mirrors the private person language under the FTCA.
    Consequently, when discussing the jurisdictional impact of
    the private person requirement under the STCA, both Doe
    and the appellees argue in their supplemental briefing that the
    jurisdictional reasoning of the federal courts, as it pertains to
    the private person requirement under the FTCA, is instructive.
    We generally agree, with the caveat that the federal courts do
    not always adhere to the same rules of strict construction that
    Nebraska courts follow when considering statutes that purport
    to waive sovereign immunity. 45
    [14,15] Considering the plain language of §§ 81-8,210(4)
    and 81-8,215 under our settled rule of strict construction, we
    now expressly recognize what has been the case since the
    enactment of the STCA: The STCA’s limited waiver of sov-
    ereign immunity applies only to tort claims for which a pri-
    vate person, under like circumstances, would be liable in tort
    to the plaintiff. This means that plaintiffs bringing an action
    under the STCA must plausibly allege a “tort claim” as that
    term is defined under the STCA, both to survive a motion to
    dismiss for failure to state a claim and to establish subject mat-
    ter jurisdiction.
    [16,17] To clarify, it remains true as a general principle that
    a negligence action brought under the STCA or the Political
    Subdivisions Tort Claims Act 46 has the same elements as
    a negligence action brought against a private individual—a
    44
    See Jill B. & Travis B., supra note 21.
    45
    See, e.g., Moser, 
    supra note 11
    , 
    307 Neb. at 29
    , 948 N.W.2d at 202
    (observing that U.S. Supreme Court “has not uniformly used the same
    strict construction canon with respect to waivers of sovereign immunity”
    that Nebraska follows).
    46
    
    Neb. Rev. Stat. § 13-901
     et seq. (Reissue 2012 & Cum. Supp. 2020).
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    plaintiff must show a legal duty owed by the defendant to
    the plaintiff, a breach of such duty, causation, and damages. 47
    However, to establish subject matter jurisdiction under the
    STCA, a plaintiff must also plausibly allege a “tort claim” as
    defined under the STCA. That requires, inter alia, plausibly
    alleging that the State, if a private person, would be liable
    to the plaintiff for the negligent or wrongful act or omission
    under like circumstances.
    (ii) Has Doe Alleged Tort Claim Under STCA?
    The district court concluded that it lacked subject matter
    jurisdiction over Doe’s action because he had not alleged a
    “tort claim” as defined under the STCA. On appeal, the parties
    present arguments going to each of the definitional require-
    ments for a tort claim under § 81-8,210(4). However, because
    we conclude the “private person” definitional requirement is
    dispositive, we confine our analysis to that issue and do not
    reach the parties’ other jurisdictional arguments. 48
    (b) Private Person Analogue
    We turn now to the dispositive jurisdictional issue in this
    STCA appeal: whether Doe has alleged a tort claim for which
    a private person, under like circumstances, would be liable.
    In Doe’s complaint, all of the negligent or wrongful acts or
    omissions relate to the defendants’ alleged failure to comply
    with the provisions of § 29-3523. The jurisdictional question
    under the STCA, then, is whether a private person under like
    circumstances would be liable in tort for failing to comply with
    § 29-3523.
    In his supplemental briefing, Doe argues that a private person
    would be liable in tort for disseminating and considering his
    47
    See, e.g., Reiber v. County of Gage, 
    303 Neb. 325
    , 
    928 N.W.2d 916
    (2019).
    48
    State v. Webb, 
    311 Neb. 694
    , 
    974 N.W.2d 317
     (2022) (appellate court not
    obligated to engage in analysis that is not necessary to adjudicate case and
    controversy before it).
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    sealed criminal history records under either of two theories.
    His primary argument is that § 29-3523 creates a tort duty
    that applies to private persons. Alternatively, he argues that
    Nebraska law recognizes a common-law duty to not disclose
    criminal history records. We address each argument below, but
    first we recite the relevant text of § 29-3523.
    Section 29-3523 provides:
    (1) After . . . the granting of a motion [to seal criminal
    history record information] under subsection (4), (5), or
    (6) of this section, a criminal justice agency shall respond
    to a public inquiry in the same manner as if there were
    no criminal history record information and criminal his-
    tory record information shall not be disseminated to any
    person other than a criminal justice agency, except as pro-
    vided in subsection (2) of this section or when the subject
    of the record:
    (a) Is currently the subject of prosecution or correc-
    tional control as the result of a separate arrest;
    (b) Is currently an announced candidate for or holder
    of public office;
    (c) Has made a notarized request for the release of such
    record to a specific person; or
    (d) Is kept unidentified, and the record is used for pur-
    poses of surveying or summarizing individual or collec-
    tive law enforcement agency activity or practices, or the
    dissemination is requested consisting only of release of
    criminal history record information showing (i) dates of
    arrests, (ii) reasons for arrests, and (iii) the nature of the
    dispositions including, but not limited to, reasons for not
    prosecuting the case or cases.
    (2) That part of criminal history record information
    described in subsection (7) of this section may be dissem-
    inated to individuals and agencies for the express purpose
    of research, evaluative, or statistical activities pursuant to
    an agreement with a criminal justice agency that specifi-
    cally authorizes access to the information, limits the use
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    of the information to research, evaluative, or statistical
    activities, and ensures the confidentiality and security of
    the information.
    ....
    (5) Any person who has received a pardon may file a
    motion with the sentencing court for an order to seal the
    criminal history record information and any cases related
    to such charges or conviction. Upon a finding that the
    person received a pardon, the court shall grant the motion
    and issue an order as provided in subsection (7) of this
    section.
    ....
    (7) Upon acquittal or entry of an order dismissing a
    case described in subdivision (3)(c) of this section, or
    after granting a motion under subsection (4), (5), or (6) of
    this section, the court shall:
    (a) Order that all records, including any information
    or other data concerning any proceedings relating to the
    case, including the arrest, taking into custody, petition,
    complaint, indictment, information, trial, hearing, adjudi-
    cation, correctional supervision, dismissal, or other dis-
    position or sentence, are not part of the public record and
    shall not be disseminated to persons other than criminal
    justice agencies, except as provided in subsection (1) or
    (2) of this section;
    (b) Send notice of the order (i) to the Nebraska
    Commission on Law Enforcement and Criminal Justice,
    (ii) to the Nebraska State Patrol, and (iii) to law enforce-
    ment agencies, county attorneys, and city attorneys refer-
    enced in the court record;
    (c) Order all parties notified under subdivision (7)(b)
    of this section to seal all records pertaining to the case;
    and
    (d) If the case was transferred from one court to
    another, send notice of the order to seal the record to the
    transferring court.
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    (8) In any application for employment, bonding,
    license, education, or other right or privilege, any appear-
    ance as a witness, or any other public inquiry, a person
    cannot be questioned with respect to any offense for
    which the record is sealed. If an inquiry is made in viola-
    tion of this subsection, the person may respond as if the
    offense never occurred.
    (i) Does § 29-3523 Create Tort Duty?
    As stated, Doe argues that § 29-3523 of the Criminal
    History Act creates a tort duty to act in the manner required
    by the statute, and he argues that such a duty is imposed on
    governmental employees and private persons alike. The appel-
    lees argue that § 29-3523 does not create a tort duty, and in any
    event, the pertinent requirements of § 29-3523 are not directed
    at private individuals.
    [18] We have not yet had occasion to consider whether
    § 29-3523 gives rise to a tort duty. But in Claypool, we set out
    the test for determining when a statute creates such a duty:
    A court may determine that a statute gives rise to a tort
    duty to act in the manner required by the statute where
    [1] the statute is enacted to protect a class of persons
    which includes the plaintiff, [2] the statute is intended to
    prevent the particular injury that has been suffered, and
    [3] the statute is intended by the Legislature to create
    a private liability as distinguished from one of a public
    character. 49
    The appellees appear to concede that Doe, as someone
    whose criminal history records have been sealed as a result of
    pardons, is generally within the class of persons that § 29-3523
    was enacted to protect. But they argue that under the third
    Claypool factor, there is nothing to suggest the Legislature
    intended § 29-3523 to create private tort liability. We agree.
    [19,20] We have described the third Claypool factor as
    “central to the analysis of whether the statute defines a duty in
    49
    Claypool, 
    supra note 13
    , 
    261 Neb. at 825
    , 
    626 N.W.2d at 545
    .
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    tort,” 50 and we have explained that “where the Legislature has
    not by its express terms or by implication provided for civil
    tort liability [for failure to comply with a statute], under prin-
    ciples of judicial restraint, it is prudent that we not do so.” 51
    Moreover, we have said that courts should consider the express
    remedy, if any, imposed for violating the statute, and whether
    such a remedy is “inconsistent with a purported legislative
    intention to create a tort duty.” 52
    The legislative purpose of the Criminal History Act is stated
    in § 29-3502:
    The purposes of [the Criminal History Act] are (1) to
    control and coordinate criminal offender record keep-
    ing within this state, (2) to establish more efficient and
    uniform systems of criminal offender record keeping,
    (3) to assure periodic audits of such record keeping
    in order to determine compliance with sections 29-209,
    29-210, 29-3501 to 29-3528, and 81-1423, (4) to estab-
    lish a more effective administrative structure for the
    protection of individual privacy in connection with such
    record keeping, and (5) to preserve the principle of the
    public’s right to know of the official actions of criminal
    justice agencies.
    It is apparent from the plain text of § 29-3502 that the pur-
    poses of the Criminal History Act are primarily administrative
    in nature; the act is aimed at ensuring uniformity, efficiency,
    accuracy, and transparency in criminal history recordkeeping.
    We see nothing in § 29-3502 which suggests the Legislature
    intended the Criminal History Act to create a tort duty to act in
    accordance with the statutory scheme.
    Presumably recognizing that the legislative purpose recited
    in § 29-3502 is of little help to his argument under the Claypool
    50
    Stonacek v. City of Lincoln, 
    279 Neb. 869
    , 880, 
    782 N.W.2d 900
    , 909
    (2010).
    51
    
    Id.
    52
    
    Id. at 881
    , 
    782 N.W.2d at 910
    .
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    factors, Doe asks us to focus more specifically on the provi-
    sions of § 29-3523, which govern how sealed criminal history
    records are to be handled. But the plain language of § 29-3523
    does not expressly or impliedly create private tort liability
    for failing to comply with the statutory provisions governing
    sealed criminal history records. In fact, as we discuss next, the
    Legislature has provided express statutory remedies for viola-
    tions of the Criminal History Act which are inconsistent with a
    purported legislative intent to create a private tort duty.
    We identify two statutes providing express remedies for
    violations of the Criminal History Act. Section 29-3527 estab-
    lishes criminal liability for “[a]ny person” who commits certain
    violations of the Criminal History Act, including the know-
    ing dissemination of “nondisclosable criminal history record
    information in violation of [the Criminal History Act].” 53
    Additionally, § 29-3528 authorizes an aggrieved person to
    compel governmental actors to comply with the requirements
    of the Criminal History Act and provides:
    Whenever any officer or employee of the state, its
    agencies, or its political subdivisions, or whenever any
    state agency or any political subdivision or its agencies
    fails to comply with the requirements of [the Criminal
    History Act] or of regulations lawfully adopted to imple-
    ment [the Criminal History Act], any person aggrieved
    may bring an action, including but not limited to an action
    for mandamus, to compel compliance and such action
    may be brought in the district court of any district in
    which the records involved are located or in the district
    court of Lancaster County. The commission may request
    the Attorney General to bring such action.
    53
    See § 29-3527(1) through (3) (providing any person who permits
    unauthorized direct access to criminal history information, who knowingly
    fails to disseminate public criminal history information, or who knowingly
    disseminates “nondisclosable criminal history record information” is guilty
    of Class IV misdemeanor).
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    Based on the express statutory remedies created by the
    Legislature—one which imposes criminal penalties on any
    person who violates the act, and another which authorizes
    mandamus and similar actions against governmental actors
    “to compel compliance” with the act—we cannot find that the
    Legislature intended the Criminal History Act generally, or
    § 29-3523 specifically, to give rise to any tort duty, let alone a
    duty that would apply to a private person. 54
    [21] We thus reject Doe’s argument and hold that § 29-3523
    does not give rise to a legal duty that would subject a private
    person to civil tort liability for failing to act in the manner pre-
    scribed by statute. But that does not end our analysis.
    Although Doe’s complaint identifies § 29-3523 as the pri-
    mary source of the alleged duty not to disclose or consider his
    sealed criminal history records, he also argues that if the statute
    does not give rise to a tort duty, then Nebraska recognizes a
    common-law duty of reasonable care not to disclose crimi-
    nal history records. The district court rejected this argument,
    reasoning that Doe had provided “no authority for a common
    law duty prohibiting the dissemination of truthful information
    about a person’s criminal history” and concluding that “no
    such duty exists.”
    Doe has not assigned error to this aspect of the trial court’s
    duty ruling. But in his supplemental briefing, he argues that
    Nebraska common law provides a private analogue for the
    negligence claims he alleged against the State. We consider this
    argument next, and find it lacks merit.
    (ii) Would Private Person Owe Common-Law
    Duty Under Like Circumstances?
    Doe argues that Nebraska law recognizes what he describes
    as a common-law “duty to act with reasonable care when in
    custody of sealed or sensitive information, the disclosure of
    54
    See Smith, supra note 42, 14 F.4th at 1232 (holding FTCA “does not cover
    breaches of federal statutory or regulatory duties that do not apply to
    private parties”).
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    which would have a detrimental effect on the life and liveli-
    hood of an individual.” 55 He directs us to no Nebraska case
    recognizing such a common-law duty, and we find none.
    Instead, Doe refers us to a case from 1994, Merrick v
    Thomas, 56 which he argues recognized a general common-
    law duty of reasonable care. In that case, the plaintiff sued
    the sheriff under the Political Subdivisions Tort Claims Act,
    alleging that the sheriff had a duty to score her admissions
    test accurately and fairly and that he had breached that duty.
    This court concluded the plaintiff’s complaint, liberally con-
    strued, alleged sufficient facts to establish the sheriff “owed
    her a duty to score her test with due care.” 57 In reaching this
    conclusion, the Merrick court recited the general proposition
    that “[a] common-law duty exists to use due care so as not to
    negligently injure another person.” 58 Doe relies on this state-
    ment in Merrick to argue that under Nebraska law, a private
    person owes a general common-law duty of reasonable care
    to others. But our more recent cases expressly disavow the
    suggestion that Nebraska recognizes “a general duty of rea-
    sonable care to all others at all times.” 59 Instead, since our
    2010 decision in A.W. v. Lancaster Cty. Sch. Dist. 0001, 60
    Nebraska has consistently followed the general duty frame-
    work set out in § 7 of the Restatement (Third) of Torts. 61 The
    duty principles recited in Merrick do not reflect current tort
    law in Nebraska.
    55
    Brief for appellant at 22.
    56
    Merrick v. Thomas, 
    246 Neb. 658
    , 
    522 N.W.2d 402
     (1994).
    57
    
    Id. at 662
    , 
    522 N.W.2d at 406
    .
    58
    
    Id. at 661
    , 
    522 N.W.2d at 406
    .
    59
    Bell v. Grow With Me Childcare & Preschool, 
    299 Neb. 136
    , 154, 
    907 N.W.2d 705
    , 718 (2018).
    60
    A.W. v. Lancaster Cty. Sch. Dist. 0001, 
    280 Neb. 205
    , 
    784 N.W.2d 907
    (2010).
    61
    See Bell, 
    supra note 59
     (discussing 1 Restatement (Third) of Torts:
    Liability for Physical and Emotional Harm § 7 (2010)).
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    [22] We thus reject Doe’s suggestion that Nebraska’s
    common-law recognizes a duty not to disclose sealed criminal
    history information. Indeed, if such a common-law duty did
    exist, it seems unlikely the Legislature would have amended
    the Criminal History Act in 2019 to enact laws prohibiting the
    dissemination of sealed criminal history record information
    under certain circumstances.
    (iii) No Private Analogue
    For the above reasons, we conclude that Doe has failed
    to establish that a private person would owe him a legal
    duty under circumstances like those alleged in his complaint.
    Without a legal duty, a private person could not be liable in
    negligence under like circumstances. Stated differently, there is
    no “private analogue” for his claim, and Doe has thus failed to
    allege a tort claim under § 81-8,210(4) for which the State has
    waived its sovereign immunity.
    For the sake of completeness, however, we note that Doe’s
    appellate briefing also argues that even if there is not a private
    person analogue for his negligence claim under § 29-3523 or
    Nebraska’s common law, there are other possible tort claims,
    such as invasion of privacy or “Interference with Economic
    Expectation,” 62 for which a private person may be liable. We
    do not address these arguments, however, because Doe neither
    pled such tort claims nor alleged conduct that would plausibly
    support such tort claims. Instead, Doe’s complaint alleged a
    negligence claim premised exclusively on conduct which he
    says failed to comply with § 29-3523, and we have already
    explained why no private analogue exists for that claim.
    2. Doe’s Remaining Assignments
    and Arguments
    [23] Our conclusion that Doe has not alleged a tort claim
    under the STCA for which the State has waived its sovereign
    immunity makes it unnecessary to address any of his remain-
    ing assignments of error. An appellate court is not obligated
    62
    Brief for appellant at 19.
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    to engage in an analysis that is not necessary to adjudicate the
    case and controversy before it. 63
    Similarly, we do not address Doe’s argument, raised for the
    first time in his reply brief, that even if the STCA’s limited
    waiver of sovereign immunity does not apply to his claims,
    the district court should have construed his tort action as one
    to enforce compliance with the Criminal History Act under
    § 29-3528. Doe has not assigned this as error on appeal, 64
    nor could he. His complaint relied exclusively on the STCA
    for jurisdiction over his tort claim. The complaint neither ref-
    erenced § 29-3528 nor alleged it as a possible jurisdictional
    basis. The district court did not consider Doe’s unpled juris-
    dictional theory, and we will not consider it for the first time
    on appeal. 65
    V. CONCLUSION
    Because Doe has not shown that a private person would be
    liable under Nebraska law for the allegedly tortious conduct
    alleged in the complaint, the STCA’s limited waiver of sov-
    ereign immunity does not apply. The district court therefore
    correctly concluded that Doe has not alleged a “tort claim”
    under the STCA for which the State has waived its sovereign
    immunity. The district court’s dismissal of the complaint for
    lack of subject matter jurisdiction was correct and is affirmed.
    Affirmed.
    63
    Schmid v. Simmons, 
    311 Neb. 48
    , 
    970 N.W.2d 735
     (2022).
    64
    See Adair Holdings v. Johnson, 
    304 Neb. 720
    , 
    936 N.W.2d 517
     (2020)
    (alleged error must be both assigned and argued to be addressed by
    appellate court).
    65
    See Wisner v. Vandelay Investments, 
    300 Neb. 825
    , 841, 
    916 N.W.2d 698
    ,
    714 (2018) (“[a]n argument not presented to or decided by the trial court
    is not appropriate for consideration on appeal”).
    Cassel, J., concurring.
    Our dissenting colleague relies upon a “broad interpretation”
    endorsed by the U.S. Supreme Court in determining the reach
    of the private person analogue in the Federal Tort Claims Act
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    addressing liability of the national sovereign. But, as the major-
    ity opinion makes clear, Nebraska adheres to strict construction
    of waivers of sovereign immunity as to the state sovereign.
    Thus, a “broad interpretation” is inconsistent with Nebraska
    law. And because the district court’s subject matter jurisdiction
    depended upon a waiver of sovereign immunity, this court was
    not free to avoid the jurisdictional analysis. Judicial restraint
    does not permit or justify judicial abdication.
    Miller‑Lerman, J., concurring in part, and in part dis­senting.
    I respectfully concur in part, and in part dissent. I agree
    with the majority that, given the remedies in the Security,
    Privacy, and Dissemination of Criminal History Act (Act),
    
    Neb. Rev. Stat. §§ 29
    ‑209, 29‑210, 29‑3501 to 29‑3538, and
    81‑1423 (Reissue 2016 & Cum. Supp. 2020), the responsi-
    bilities of the Act do not create the duty element of the tort of
    negligence and that therefore, Doe has failed to state a claim
    for negligence under 
    Neb. Rev. Stat. § 81-8
    ,210(4) (Reissue
    2014) of the State Tort Claims Act (STCA). But STCA permits
    “tort claims” in addition to the tort claim of negligence. Other
    actions which lie in tort can be brought, such as interference
    with a business expectancy, which may be applicable here
    based on the events giving rise to the complaint. Doe should
    be permitted to amend. Further, albeit recast by the majority as
    a failure of the State to waive immunity, the majority affirmed
    the district court’s order, which concluded that there was a fail-
    ure of subject matter jurisdiction. Not every failing is a juris-
    dictional defect. I dissent from these rulings. I see the case as
    a simple matter of failure to state a claim for negligence, and
    the district court should permit Doe leave to attempt to replead
    another tort.
    The alleged facts are not repeated here. In summary, Doe
    alleged that notwithstanding the fact that Doe’s criminal record
    was sealed under § 29-3523(5), and after Doe’s job interview,
    the Nebraska State Patrol improperly transmitted the records
    identified as “Sealed Info” to the Department of Correctional
    Services and its director, Scott Frakes, in connection with
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    Doe’s application for employment. Frakes acknowledged that
    the department should not have considered Doe’s sealed record
    in connection with its rejection of Doe’s job application. Doe
    alleged negligence under STCA.
    According to the Act, among the objectives of sealing crim-
    inal records is “the protection of individual privacy.” See
    § 29-3502. Following a pardon, and sealing of a person’s
    records, the aim of the Act is to keep records private and
    protect the pardoned individual from harm due to improper
    dissemination and reliance on the sealed criminal record. The
    statutory remedies for failure to abide by the Act are provided
    by §§ 29-3527 and 29-3528 and include criminal liability and
    mandamus. See State ex rel. Rhiley v. Nebraska State Patrol,
    
    301 Neb. 241
    , 
    917 N.W.2d 903
     (2018) (stating sovereign
    immunity does not bar mandamus under § 29-3528 against
    public officer). Because the Legislature has already provided
    explicit remedies to enforce the Act, it would be inconsistent
    for the court to create a separate private cause of action for
    negligence, based on a breach of the responsibilities described
    in the Act. This conclusion is similar to this court’s analysis
    in Stonacek v. City of Lincoln, 
    279 Neb. 869
    , 
    782 N.W.2d 900
    (2010). By this reasoning, I concur with the majority’s conclu-
    sion that the Act does not create a duty in negligence or a cause
    of action for negligence.
    At this point, the analysis of whether Doe alleged a cause
    of action for negligence under STCA is complete, and in my
    view, the majority’s analysis of the private person analogue
    and its segue into sovereign immunity are unnecessary and
    not consistent with the widespread jurisprudence in this area.
    In my view, firstly, the analysis improperly casts the issue as
    jurisdictional, and secondly, the majority misreads the federal
    jurisprudence as requiring a too exacting private equivalence
    instead of an analogue.
    I see a pleading failure, but unlike the majority, I do not
    see a jurisdictional failure. There is no dispute that the district
    court has subject matter jurisdiction to entertain an STCA
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    action. Just because Doe did not allege a viable negligence
    “[t]ort claim,” see § 81-8,210(4), for the particular tort of neg-
    ligence does not bar him from attempting to plead another tort
    under STCA. In my view, the defect in the complaint identified
    by the trial court and this appellate court is not incurable as a
    matter of law. As I have observed in the past, not every failing
    is jurisdictional and we should be careful with our invocation
    of the concept of jurisdiction. State v. Crawford, 
    291 Neb. 362
    , 
    865 N.W.2d 360
     (2015), disapproved on other grounds,
    State v. Burries, 
    310 Neb. 688
    , 
    969 N.W.2d 96
     (2022). See
    State v. Ryan, 
    287 Neb. 938
    , 
    845 N.W.2d 287
     (2014), disap-
    proved on other grounds, State v. Allen, 
    301 Neb. 560
    , 
    919 N.W.2d 500
     (2018). See, also, Akutowicz v. U.S., 
    859 F.2d 1122
     (2d Cir. 1988) (holding that where plaintiff has not satis-
    fied private analogue requirement, plaintiff has failed to state
    cause of action under Federal Tort Claims Act). But see Geico
    General Ins. Co. v. U.S., 
    581 F. Supp. 3d 847
     (E.D. Ky. 2022)
    (stating because plaintiff failed to plead analogue facts suf-
    ficient to state plausible claim under Federal Tort Claims Act,
    court lacked jurisdiction). In my view, we should not recast an
    inartful pleading as a jurisdictional defect merely to provide a
    vehicle to dismiss. I dissent from this approach of the major-
    ity opinion.
    As I have urged, discussion of the doctrine of a private
    person analogue is not necessary to the disposition of this
    case, and I would exercise judicial restraint in this regard. Just
    because the court can write about private person analogue does
    not mean it should. To the extent dicta by the majority consid-
    ers the private person analogue, I disagree with the majority’s
    analysis that the analogue must be so precise.
    As the majority notes, STCA is patterned after the Federal
    Tort Claims Act (hereinafter FTCA), see 
    28 U.S.C. § 2680
    (h)
    (2018), which to some extent, we follow. Compare Moser
    v. State, 
    307 Neb. 18
    , 
    948 N.W.2d 194
     (2020). FTCA’s pri-
    vate person analogue is found at 
    28 U.S.C. § 1346
     (2018).
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    Nebraska’s private person analogue is found at § 81-8,210(4),
    which provides:
    Tort claim means any claim against the State of Nebraska
    for money only on account of damage to or loss of prop-
    erty or on account of personal injury or death caused
    by the negligent or wrongful act or omission of any
    employee of the state, while acting within the scope of
    his or her office or employment, under circumstances in
    which the state, if a private person, would be liable to the
    claimant for such damage, loss, injury, or death . . . .
    In evaluating whether a private person analogue exists
    for the plaintiff’s federal tort claim, the U.S. Supreme
    Court has stated that the State is not immune from suit
    solely because it was engaged in a uniquely governmental
    function. See, United States v. Olson, 
    546 U.S. 43
    , 
    126 S. Ct. 510
    , 
    163 L. Ed. 2d 306
     (2005); Rayonier, Inc. v.
    United States, 
    352 U.S. 315
    , 
    77 S. Ct. 374
    , 
    1 L. Ed. 2d 354
     (1957); Indian Towing Co. v. United States, 
    350 U.S. 61
    , 
    76 S. Ct. 122
    , 
    100 L. Ed. 48
     (1955). A court applying
    the private person standard is not restricted to “narrow”
    inquiries into the same circumstances, but must look fur-
    ther afield. United States v. Olson, 
    546 U.S. at 46
    .
    The U.S. Supreme Court declared that it “would be attribut-
    ing bizarre motives to Congress . . . to hold that it was predi-
    cating liability on such a completely fortuitous circumstance—
    the presence or absence of identical private activity.” Indian
    Towing Co. v. United States, 
    350 U.S. at 67
    . The U.S. Supreme
    Court found no evidence in FTCA that Congress “intended to
    draw distinctions so finespun and capricious as to be almost
    inescapable of being held in the mind for adequate formula-
    tion.” Indian Towing Co. v. United States, 
    350 U.S. at 68
    .
    It has been observed that FTCA’s private person analogue
    provision, § 1346, has been given
    generous development by the Supreme Court. [FTCA]
    is given a broad interpretation to effectuate the legisla-
    tive aim of putting citizen and national sovereign in tort
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    claims suits on a footing of equality as between private
    parties within that state. Nice pieces of casuistry and
    hypersensitive legalisms are avoided.
    Roelofs v. United States, 
    501 F.2d 87
    , 92 (5th Cir. 1974). These
    authorities illustrate why the majority has too narrowly applied
    the private person analogue and why I dissent from such nar-
    row understanding in this and future cases.
    Turning to the complaint, Doe alleged a violation of the
    responsibilities outlined in the Act by the State Patrol, Frakes,
    and the Department of Correctional Services. According to the
    allegations, Doe suffered the financial harm of being rejected
    for a job as a result of state actors’ wrongful conducts, i.e.,
    by both the improper dissemination of his sealed record and
    the subsequent knowing reliance on the sealed record. I read
    the events giving rise to the complaint as potentially involv-
    ing tortious interference with Doe’s business expectancy or
    another tort. See Denali Real Estate v. Denali Custom Builders,
    
    302 Neb. 984
    , 
    926 N.W.2d 610
     (2019) (setting forth ele-
    ments of interference with business relationship or expec-
    tancy). Employing the “broad interpretation” of the private
    person analogue endorsed by the federal courts, see Roelofs v.
    United States, 
    501 F.2d at 92
    , Doe has alleged a “[t]ort claim”
    on account of the “wrongful act or omission of any employee
    of the state, while acting within the scope of his or her office
    or employment, under circumstances in which the state, if a
    private person, would be liable to the claimant for such dam-
    age, loss, injury or death . . . .” § 81-8,210(4). So, although I
    think it unnecessary to engage in the private person analogue
    exercise, were I to do so, I would find that Doe had alleged
    facts which may indicate the existence of the private analogue
    tort of interference with a business expectancy and thus should
    be permitted to amend his pleading to attempt to make such
    “tort claim” more explicit.
    For the foregoing reasons, I concur in part, and in part
    dissent.