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


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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    MOSER v. STATE
    Cite as 
    307 Neb. 18
    Telena Moser, Personal Representative
    of the Estate of Terry L. Berry, Jr.,
    deceased, appellant, v. State
    of Nebraska, appellee.
    ___ N.W.2d ___
    Filed September 4, 2020.   No. S-19-726.
    1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
    grant of a motion to dismiss on the pleadings is reviewed de novo,
    accepting the allegations in the complaint as true and drawing all rea-
    sonable inferences in favor of the nonmoving party.
    2. 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.
    3. Tort Claims Act: Appeal and Error. Whether the allegations made by
    a plaintiff constitute a cause of action under the State Tort Claims Act
    or whether the allegations set forth claims which are precluded by the
    exemptions set forth in the act is a question of law, for which an appel-
    late court has a duty to reach its conclusions independent of the conclu-
    sions reached by the district court.
    4. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception
    to the State’s waiver of immunity under the State Tort Claims Act is an
    issue that the State may raise for the first time on appeal and that a court
    may consider sua sponte.
    5. Tort Claims Act: Legislature: Immunity: Waiver. Through the State
    Tort Claims Act, the Legislature has waived the State’s immunity with
    respect to certain, but not all, types of tort actions.
    6. Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
    tion of sovereign immunity of the State or its subdivisions are strictly
    construed in favor of the sovereign and against the waiver. A waiver
    of sovereign immunity is found only where stated by the most express
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    language of a statute or by such overwhelming implication from the text
    as will allow no other reasonable construction.
    7.    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 statutory words which are plain,
    direct, and unambiguous.
    8.    Assault: Political Subdivisions Tort Claims Act: Tort Claims Act.
    Because the assault and battery exceptions of the State Tort Claims Act
    and the Political Subdivisions Tort Claims Act are nearly identical, cases
    construing the Political Subdivisions Tort Claims Act are applicable to
    cases under the State Tort Claims Act and vice versa.
    9.    Public Policy. While the doctrine of stare decisis is entitled to great
    weight, it is grounded in the public policy that the law should be stable,
    fostering both equality and predictability of treatment.
    10.    Appeal and Error. Remaining true to an intrinsically sounder doctrine
    better serves the values of stare decisis than following a more recently
    decided case inconsistent with the decisions that came before it.
    Appeal from the District Court for Johnson County: Ricky
    A. Schreiner, Judge. Affirmed.
    Thomas J. Monaghan and Rodney C. Dahlquist, Jr., of
    Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O.,
    for appellant.
    Douglas J. Peterson, Attorney General, and James D. Smith,
    Solicitor General, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Heavican, C.J.
    INTRODUCTION
    Terry L. Berry, Jr., was incarcerated at the Tecumseh State
    Correctional Institution (TSCI), an institution under the control
    of the Nebraska Department of Correctional Services (DCS).
    On April 10, 2017, Berry was moved into a cell with Patrick W.
    Schroeder, another inmate at TSCI. Five days later, Schroeder
    strangled Berry, who died of his injuries on April 19.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    MOSER v. STATE
    Cite as 
    307 Neb. 18
    Telena Moser, the personal representative of Berry’s estate,
    filed a claim with the State of Nebraska under the State Tort
    Claims Act (STCA). After the statutory time for the State to
    respond to her claim had passed, Moser filed this suit on behalf
    of Berry’s estate. The suit alleges negligence and wrongful
    death on the part of DCS. The district court dismissed Moser’s
    complaint. Moser appeals.
    We granted the State’s motion to bypass the Nebraska Court
    of Appeals due to the public interest involved in this case
    and, as asserted in the State’s petition to bypass, to address an
    apparent “inconsistency in this Court’s opinions in applying
    the strict construction legal principles of the STCA exceptions
    to sovereign immunity as those legal principles have been
    explained and applied by this Court’s more recent decisions,”
    specifically in the context of the intentional tort exception.
    We find that the State has immunity under the intentional
    tort exception to the STCA, and accordingly, we affirm the
    order dismissing Moser’s suit, albeit under different grounds
    for immunity than those relied upon by the district court.
    BACKGROUND
    In this case, the district court granted the State’s motion to
    dismiss; therefore, the operative facts are those set forth in
    Moser’s complaint. According to that complaint, Berry was
    incarcerated with DCS on November 20, 2015, after being
    convicted of second degree forgery and assault by a confined
    person. He was sentenced to 3 to 4 years’ imprisonment.
    Schroeder was convicted of first degree murder, use of
    a weapon to commit a felony, and six counts of second
    degree forgery. He was sentenced to life imprisonment and was
    commit­ted to DCS on August 31, 2006. Schroeder had been
    committed to TSCI since 2007, and according to the complaint,
    he was known for “having a bad temper.” Berry was also
    known for having behavioral issues and had been identified as
    “needing anger management programming.”
    On April 10, 2017, Schroeder was notified that he would
    need to move out of his cell and into a different unit and
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    that he would be “double bunked.” Schroeder told staff that
    he would not accept being double bunked. Fifteen minutes
    before he was due to be moved, Schroeder was told that his
    new cellmate would be Berry. Schroeder objected, because “he
    knew Berry to have enemies [and be] talkative” and because
    Berry was “believed to be dirty.” On that same day, Berry was
    notified that he was being moved and that “if he refused the
    move, [he] would be double bunked with another inmate.”
    On April 15, 2017, Schroeder physically attacked Berry, who
    was subsequently transported to a local hospital and then to a
    hospital in Lincoln, Nebraska. Berry was declared brain dead
    on April 17 and was removed from life support on April 19. An
    autopsy showed that Berry’s cause of death was asphyxia due
    to strangulation.
    On September 15, 2017, Moser filed an administrative claim
    under the STCA. No action was taken within 6 months. Moser
    filed this action on November 26, 2018. In it, she asserted
    three causes of action: (1) the State’s negligence in breach-
    ing its duty to protect Berry from harms against which he was
    unable to prevent himself, (2) its negligence per se in failing
    to comply with “the requirements of [DCS] Administrative
    Regulation 210.01,” and (3) wrongful death under Neb. Rev.
    Stat. § 30-809 et seq. (Reissue 2016).
    The State filed a motion to dismiss for lack of subject matter
    jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(1), specifically
    arguing that the discretionary function exception of Neb. Rev.
    Stat. § 81-8,219(1) (Reissue 2014) to the STCA gave the State
    immunity from suit. The State also argued that Moser failed to
    state a claim under § 6-1112(b)(6). The district court granted
    that motion, concluding that the State was immune from suit
    under § 81-8,219(1).
    Moser appeals.
    ASSIGNMENTS OF ERROR
    On appeal, Moser assigns that the district court erred in
    (1) finding that the mandatory safety regulations designed to
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    prevent inmate assaults were discretionary rather than manda-
    tory, (2) finding that the decision by TSCI staff to “double
    bunk” Berry and Schroeder was a policy decision rather than
    an operational decision, (3) finding that the discretionary
    function exception applied to the decision to double bunk
    Berry with Schroeder and to maintain such housing despite
    warnings regarding Berry’s safety, (4) finding that the State
    acted with due care when it placed Berry with Schroeder and
    when it maintained this housing despite warnings regarding
    Berry’s safety, and (5) granting the State’s motion to dismiss
    under § 81-2,219(1).
    STANDARD OF REVIEW
    [1-3] A district court’s grant of a motion to dismiss on the
    pleadings is reviewed de novo, accepting the allegations in
    the complaint as true and drawing all reasonable inferences
    in favor of the nonmoving party. 1 Statutory interpretation
    presents a question of law, for which an appellate court has
    an obligation to reach an independent conclusion irrespective
    of the decision made by the court below. 2 Whether the allega-
    tions made by a plaintiff constitute a cause of action under
    the STCA or whether the allegations set forth claims which
    are precluded by the exemptions set forth in the act is a ques-
    tion of law, for which an appellate court has a duty to reach
    its conclusions independent of the conclusions reached by the
    district court. 3
    [4] An exception to the State’s waiver of immunity under the
    STCA is an issue that the State may raise for the first time on
    appeal and that a court may consider sua sponte. 4
    1
    Amend v. Nebraska Pub. Serv. Comm., 
    298 Neb. 617
    , 
    905 N.W.2d 551
        (2018).
    2
    Id. 3
    
    Id.
    4
    
        Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
    (2017).
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    MOSER v. STATE
    Cite as 
    307 Neb. 18
    ANALYSIS
    On appeal, Moser argues that the district court erred in
    granting the State’s motion to dismiss. Her assignments of error
    center on the district court’s finding that § 81-8,219(4) barred
    her claim.
    [5] Through the STCA, the Legislature has waived the
    State’s immunity with respect to certain, but not all, types of
    tort actions. 5 As 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. 6
    But there are exceptions to the State’s waiver of immunity.
    As relevant to this appeal, § 81-8,219 provides that the STCA
    shall not apply to the following:
    (1) Any claim based upon an act or omission of an
    employee of the state, exercising due care, in the execu-
    tion of a statute, rule, or regulation, whether or not such
    statute, rule, or regulation is valid, or based upon the
    exercise or performance or the failure to exercise or per-
    form a discretionary function or duty on the part of a state
    agency or an employee of the state, whether or not the
    discretion is abused;
    ....
    (4) Any claim arising out of assault, battery, false
    imprisonment, false arrest, malicious prosecution, abuse
    of process, libel, slander, or interference with contract
    rights.
    The State argues, for the first time in its brief on appeal,
    that Moser’s lawsuit is barred, not just by § 81-8,219(1)—the
    grounds argued below which the district court relied upon—but
    5
    Jill B. & Travis B. v. State, 
    297 Neb. 57
    , 
    899 N.W.2d 241
    (2017).
    6
    See Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014).
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    also by the intentional tort exception found in § 81-8,219(4).
    The State notes that this court is bound to construe statutes
    waiving the State’s immunity strictly and in favor of the State
    and against the waiver, and it argues that the plain language
    of the intentional tort exception applies to “[a]ny claim arising
    out of assault [or] battery.” The State suggests that we should
    adopt the reasoning of the concurrence filed in our recent
    decision in Rutledge v. City of Kimball 7 and overrule our ear-
    lier decision in Doe v. Omaha Pub. Sch. Dist. 8
    As an initial matter, we observe that this court may con-
    sider the State’s contention that the exception set forth in
    § 81-8,219(4) is applicable. 9 We have held that “when a plain-
    tiff’s complaint shows on its face that a claim is barred by
    one of the exceptions [to the State’s waiver of immunity], the
    State’s inherent immunity from suit is a jurisdictional issue that
    an appellate court cannot ignore.” 10
    [6,7] It is well settled that statutes that purport to waive
    the protection of sovereign immunity of the State or its
    subdivisions are strictly construed in favor of the sovereign
    and against the waiver. 11 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. 12 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 plain, direct, and
    unambiguous. 13
    7
    Rutledge v. City of Kimball, 
    304 Neb. 593
    , 
    935 N.W.2d 746
    (2019).
    8
    Doe v. Omaha Pub. Sch. Dist., 
    273 Neb. 79
    , 
    727 N.W.2d 447
    (2007).
    9
    Davis v. State, supra note 4.
    10
    Id. at 
    979, 902 N.W.2d at 186
    .
    11
    Jill B. & Travis B. v. State, supra note 5.
    12
    Id. 13
         Id.
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    MOSER v. STATE
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    As we noted in Jill B. & Travis B. v. State: 14
    The principle of strict construction predated the
    [STCA] and has been consistently followed after its
    adoption. We had long said that statutes authorizing suit
    against the State are to be strictly construed, since they
    are in derogation of the State’s sovereignty. Following
    adoption of the [STCA], we emphasized that statutes in
    derogation of sovereignty should be strictly construed in
    favor of the State, so that its sovereignty may be upheld
    and not narrowed or destroyed, and should not be per-
    mitted to divest the State or its government of any of its
    prerogatives, rights, or remedies, unless the intention of
    the Legislature to effect this object is clearly expressed.
    We also said that because the State has given only condi-
    tional consent to be sued and there is no absolute waiver
    of immunity by the State, requirements of the [STCA]
    must be followed strictly. Our most recent pronounce-
    ments uphold these principles. Because the rationale for
    the intentional torts exception . . . has not always been
    clearly expressed, the rule of strict construction becomes
    critically important.
    [8] Because the assault and battery exceptions of the STCA
    and the Political Subdivisions Tort Claims Act (PSTCA) are
    nearly identical, cases construing the PSTCA are applicable to
    cases under the STCA and vice versa. 15 Our case law on the
    assault and battery exception to this point has generally found
    immunity in cases where the actor committing the assault or
    battery was an employee or agent of the State, but not where
    the actor was a nongovernmental actor.
    This court was presented with the intentional tort excep-
    tion to the STCA in Johnson v. State. 16 In Johnson, an inmate
    with DCS filed a claim under the STCA, alleging that she
    14
    Id. at 
    68-69, 899 N.W.2d at 251-52
    .
    15
    See Amend v. Nebraska Pub. Serv. Comm., supra note 1.
    
    16 N.M. (J.) v
    . State, 
    270 Neb. 316
    , 
    700 N.W.2d 620
    (2005).
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    was sexually assaulted by a DCS employee. We noted that the
    phrase “arising out of an assault or battery” was broader than
    the phrase “for assault or battery” and thus covered “‘claims
    . . . that sound in negligence but stem from a battery.’” 17 We
    further found that the intentional tort exception applied and
    that the State was immune. We explained:
    Where the plaintiff’s tort claim is based on the mere fact
    of government employment (such as a respondeat supe-
    rior claim) or on the employment relationship between the
    intentional tort-feasor and the government (such as a neg-
    ligent supervision or negligent hiring claim), the excep-
    tion in § 81-8,219(4) applies and the State is immune
    from suit. 18
    We were again presented with the intentional tort exception
    in Doe, a case governed by the PSTCA involving a nongovern-
    mental actor. 19 In Doe, a student sued a school district, alleging
    she was sexually assaulted by a fellow student during school
    hours and while on school property. Citing the U.S. Supreme
    Court’s decision in Sheridan v. United States, 20 we held that the
    claim was not barred by the PSTCA because it was
    not based upon the assault itself, and [the plaintiff] could
    not prevail merely by proving that it occurred. Rather,
    [the plaintiff alleged] that before the alleged assault, [the
    school district] breached an independent legal duty, unre-
    lated to any possible employment relationship between
    the assailant and [the school district], to take reason-
    able steps to prevent foreseeable violence from occur-
    ring on its premises. . . . The claim therefore does
    not arise from an assault, but, rather, from an alleged
    17
    Id. at 320, 700
    N.W.2d at 624.
    18
    Id. at 
    323, 700 N.W.2d at 625
    .
    19
    Doe v. Omaha Pub. Sch. Dist., supra note 8.
    20
    Sheridan v. United States, 
    487 U.S. 392
    , 
    108 S. Ct. 2449
    , 
    101 L. Ed. 2d 352
    (1988).
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    negligent failure to protect a student from a foreseeable
    act of violence. 21
    In 2011, we decided Britton v. City of Crawford. 22 There, the
    plaintiff’s decedent was shot and killed by law enforcement.
    His estate filed suit against the city, which argued that it was
    immune from suit under the intentional tort exception to the
    PSTCA because the claim arose out of a battery.
    We observed in Britton, as we had held in Johnson, that the
    phrase “arising out of an assault or battery” created a broader
    exemption than one for an assault or battery. We distinguished
    Johnson, noting that although the claims were based on the
    officers’ government employment, the death of the plaintiff’s
    decedent was not the result of negligent supervision or hiring.
    We ultimately concluded that the city had immunity from suit,
    noting that without
    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 decedent’s] death and, conse-
    quently, the basis of [the] claim. Even if it is possible that
    negligence was a contributing factor to the [decendent’s]
    death, the alleged negligence was inextricably linked to
    a battery. 23
    We used similar reasoning in Jill B. & Travis B., 24 which
    involved immunity under § 81-8,219(5). That section provided
    an exception from immunity under the STCA for “any claim
    arising out of misrepresentation or deceit.” 25 We held that the
    State was entitled to immunity, reasoning that “[n]o matter
    how the [plaintiffs] try to frame their complaint, their claim
    arises out of a misrepresentation. . . . ‘[A] plaintiff cannot
    21
    
    Doe, supra
    note 
    8, 273 Neb. at 88
    , 727 N.W.2d at 456.
    22
    Britton v. City of Crawford, 
    282 Neb. 374
    , 
    803 N.W.2d 508
    (2011).
    23
    Id. at 
    386, 803 N.W.2d at 518
    .
    24
    Jill B. & Travis B. v. State, supra note 5.
    25
    § 81-8,219(5).
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    circumvent the misrepresentation exception simply through
    artful pleading of [the] claims.’” 26
    We most recently addressed this issue in Rutledge, wherein
    the plaintiff alleged that a city employee had attacked and
    choked her in a building belonging to the city. 27 On appeal,
    the plaintiff relied on Doe to argue that the city was negligent
    in failing to protect her and the rest of the public from its
    employee. 28 We distinguished Doe, noting the absence of an
    allegation that the assailant was an agent or employee of the
    political subdivision. The situation in Rutledge presented an
    employment relationship, and accordingly, we found the city to
    be immune from suit. In Rutledge, we were not presented with
    the question of whether Doe was correctly decided, but we find
    that question squarely before us today.
    As we noted above, our propositions of statutory inter-
    pretation require us to give statutory language its plain and
    ordinary meaning. And we have done as much, particularly
    in Johnson, and later in Britton, when we held that the use
    of the phrase “arising out of” in the intentional tort excep-
    tion to the PSTCA meant that more than just claims for listed
    intentional torts were exempted and that plaintiffs may not
    reframe claims that arise out of those intentional torts to escape
    the exemption. 29
    Our decision in Doe, 30 where we held that the claim was not
    based upon the underlying assault but upon the breach of the
    legal duty to take reasonable steps to prevent foreseeable vio-
    lence from occurring on its premises, was rooted in Sheridan. 31
    But Doe is an outlier in that it is inconsistent with our prior and
    26
    Jill B. & Travis 
    B., supra
    note 5, 297 Neb. at 
    92-93, 899 N.W.2d at 265
    .
    27
    Rutledge v. City of Kimball, supra note 7.
    28
    Id. See Doe v.
    Omaha Pub. Sch. Dist., supra note 8.
    29
    See, Britton v. City of Crawford, supra note 22; Johnson v. State, supra
    note 16.
    30
    Doe v. Omaha Pub. Sch. Dist., supra note 8.
    31
    Sheridan v. United States, supra note 20.
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    subsequent case law generally setting forth a broad definition
    of the phrase “arising out of an assault or battery.”
    A broad definition is consistent with the plain language of
    that phrase, which suggests that if a claim would not exist
    without an assault or battery, it arises out of that battery and
    is more consistent with our other case law on this issue. As
    Justice O’Connor noted in her dissenting opinion in Sheridan,
    “‘arising out of,’” if given its ordinary meaning, would cover
    any case in which a battery is essential to the claim. 32 We can
    conceive of no reason why the scope or meaning of the phrase
    “arising out of,” as we defined it in Britton, should change
    depending on the status of the actor as governmental versus
    nongovernmental.
    Additionally Sheridan, upon which we relied in Doe, did
    not purport to give the waiver of sovereign immunity in the
    Federal Tort Claims Act a strict construction. Indeed, the U.S.
    Supreme Court has not uniformly used the same strict con-
    struction canon with respect to waivers of sovereign immunity.
    It recently noted that such a canon is simply “a tool for inter-
    preting the law, and we have never held that it displaces the
    other traditional tools of statutory construction.” 33
    Conversely, this court has long strictly construed waivers of
    immunity in favor of a State or political subdivision. In order
    to strictly construe against a waiver of sovereign immunity,
    we must read exemptions from a waiver of sovereign immu-
    nity broadly. 34 Of course, as the dissent to this opinion notes,
    courts must be careful to interpret exceptions to a waiver of
    immunity in a way that does not defeat the initial purpose of
    32
    Id., 4
    87 
    U.S. at 409 (O’Connor, J., dissenting) (citing Kosak v. United
    States, 
    465 U.S. 848
    , 
    104 S. Ct. 1519
    , 
    79 L. Ed. 2d 860
    (1984), and United
    States v. Shearer, 
    473 U.S. 52
    , 
    105 S. Ct. 3039
    , 
    87 L. Ed. 2d 38
    (1985)).
    33
    Richlin Security Service Co. v. Chertoff, 
    553 U.S. 571
    , 589, 
    128 S. Ct. 2007
    , 
    170 L. Ed. 2d 960
    (2008).
    34
    See Stick v. City of Omaha, 
    289 Neb. 752
    , 
    857 N.W.2d 561
    (2015).
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    waiving the government’s immunity. 35 But even in balancing
    those considerations, we are constrained by the language uti-
    lized by the Legislature. A broad reading of the phrase “arising
    out of” corresponds to a strict reading of the situations under
    which a sovereign would be entitled to immunity.
    Nor is this inconsistent with the definition of the term “tort
    claim” in § 81-8,210(4), which requires, in relevant part, “the
    negligent or wrongful act or omission of any employee of
    the state.” The broad definition of the phrase “arising out of ”
    encompasses and provides immunity for, at a minimum, the
    acts of both a State actor alleged to have committed an inten-
    tional tort and one alleged to have been negligent in a situation
    that includes the commission of an intentional tort.
    Although we do not dispute the dissent’s contention that one
    injury can arise from multiple wrongful acts, the plain language
    of the intentional tort exception in § 81-8,219(4) provides that
    if that injury “arise[s] out of,” in this case an assault or battery,
    the exception applies to bar the claim. With the exception of
    Doe, our interpretation of this language has been consistent and
    the Legislature has not seen fit to correct us. 36
    [9,10] Respect for precedent should not prevent us from
    restoring our adherence to the Nebraska Constitution and
    statutes. 37 We have said that while the doctrine of stare deci-
    sis is entitled to great weight, it is grounded in the public
    policy that the law should be stable, fostering both equality
    and predictability of treatment. 38 And we have recognized that
    overruling precedent is justified when the purpose is to elimi-
    nate inconsistency. 39 Thus, we said that remaining true to an
    intrinsically sounder doctrine better serves the values of stare
    35
    See Dolan v. U.S. Postal Service, 
    546 U.S. 481
    , 
    126 S. Ct. 1252
    , 163 L.
    Ed. 2d 1079 (2006).
    36
    See Doe v. Omaha Pub. Sch. Dist., supra note 8.
    37
    Heckman v. Marchio, 
    296 Neb. 458
    , 
    894 N.W.2d 296
    (2017).
    38
    Id. 3
    9
    
    Id.
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    decisis than following a more recently decided case inconsist­
    ent with the decisions that came before it. 40
    Our decision in Doe was inconsistent with the approach we
    have taken in other cases as it relates to the “arising out of ”
    language, and it does not comply with our obligation to strictly
    construe the State’s waiver of immunity. 41 That decision was
    wrong, and as such, we overrule it.
    We are therefore left to determine whether the intentional
    tort exception set forth in § 81-8,219(4) applies to provide the
    State immunity from Moser’s suit. We find that it does.
    Although Moser’s complaint plainly alleges a negligence
    cause of action, in that complaint, Moser alleged that Schroeder
    “assault[ed]” Berry. A reading of the complaint makes it clear
    that all of Moser’s allegations, including her claims of neg-
    ligence in the decision to double bunk Berry and Schroeder,
    flow from this assault.
    Of course, the assault that Moser outlines in her complaint
    was horrific. But in accordance with our case law with respect
    to the intentional tort exception discussed above, we must con-
    clude that Moser’s allegations arose out of an intentional tort
    for purposes of the STCA. To find otherwise would require this
    court to engage in the very “semantic recasting of events” that
    we rejected in Britton. 42 This we will not do.
    The Legislature may wish to revisit the State’s sovereign
    immunity in cases such as the one presented by this appeal,
    as indeed that body has done previously in response to deci-
    sions of this court. 43 But it is clear that it is the province
    of the Legislature, and not of this court, to make such pol-
    icy judgments.
    40
    Id. 4
    1
    See Doe v. Omaha Pub. Sch. Dist., supra note 8.
    42
    Britton v. City of Crawford, supra note 22, 282 Neb. at 
    386, 803 N.W.2d at 518
    .
    43
    See § 81-8,219(5) (Cum. Supp. 2018) (as amended by 2018 Neb. Laws,
    L.B. 729, § 1, effective July 19, 2018).
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    Because we conclude that the State had immunity from suit
    under the intentional tort exception of the STCA, as set forth
    in § 81-8,219(4), we need not address Moser’s assignments of
    error on appeal relating to immunity under the discretionary
    function exception.
    CONCLUSION
    Over 50 years ago, the Legislature set the parameters for
    the State’s immunity from suit in various scenarios. This court
    strictly construes those parameters. We conclude that in this
    case, the State has immunity from suit under the intentional
    tort exception. As such, the district court did not err in dis-
    missing Moser’s complaint. The decision of the district court
    is affirmed.
    Affirmed.
    Freudenberg, J., not participating.
    Miller-Lerman, J., dissenting.
    I respectfully disagree with the majority’s conclusion to
    dismiss this complaint based on immunity where the complaint
    generally alleges that the death of an inmate was negligently
    caused by the State’s violating its duties and its formal regula-
    tions, and specifically alleges that the State’s employees negli-
    gently “doubled bunked” a “talkative” inmate “days away from
    his parole hearing” with an expected release date in 8 months
    with a known “bad temper[ed]” inmate serving a life sentence,
    the latter of whom after 5 days of sharing a cell “wrapped his
    arm around [the former’s] neck and squeezed for five minutes”
    until “he felt certain [the former] was dead.”
    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 today
    the majority chooses instead to follow the dissent in Sheridan
    and overrules Doe based on its dubious notion that the U.S.
    Supreme Court and the Nebraska Supreme Court interpret
    the same statutory language so differently that adhering to
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    U.S. Supreme Court precedent would offend Nebraska. As
    explained below, finding no meaningful difference between
    statutory interpretation habits of the Nebraska Supreme Court
    and the U.S. Supreme Court in this regard and reading the lan-
    guage of Neb. Rev. Stat. § 81-8,219(4) (Reissue 2014) in the
    context of the State Tort Claims Act provisions of which it is a
    part, I conclude that the intentional tort assault exception to the
    waiver of sovereign immunity does not apply; hence, the State
    is subject to suit in this case.
    This is one of a number of recent cases in which the State
    introduced a new theory for the first time on appeal—in
    this instance, in its appellate brief. See Candyland, LLC v.
    Nebraska Liquor Control Comm., ante p. 169, 
    944 N.W.2d 740
    (2020) (Miller-Lerman, J., concurring) (noting that theory
    raised for first time at oral argument); State v. Vann, ante
    p. 91, 
    944 N.W.2d 503
    (2020), (Miller-Lerman, J., concur-
    ring) (­noting that theory raised for first time at oral argument
    resulted in overruling precedent). Unlike its approach in the
    trial court, the State now contends that 
    Doe, supra
    , should be
    overruled and that the complaint should be dismissed based on
    the intentional tort assault exception to the waiver of sovereign
    immunity. Although appellant may have a heavy burden in
    being able to prove negligence by the State, in my view, she
    has alleged sufficient facts described below to survive a motion
    to dismiss.
    The complaint filed by Telena Moser, as personal represent­
    ative of the estate of Terry L. Berry, Jr., alleged that the State
    was negligent when on April 10, 2017, it placed Berry in the
    same restrictive housing cell as Patrick W. Schroeder at the
    Tecumseh State Correctional Institution (TSCI). On April 15,
    Schroeder wrapped his arm around Berry’s neck and squeezed
    for 5 minutes until he felt certain Berry was dead. Restrictive
    housing is defined by Neb. Rev. Stat. § 83-170(13) (Cum.
    Supp. 2016) as “conditions of confinement that provide lim-
    ited contact with other offenders, strictly controlled movement
    while out of cell, and out-of-cell time of less than twenty-four
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    hours per week.” The purpose of restrictive housing is to sepa-
    rate a violent inmate from the general population or to separate
    an inmate at risk of violence from the general population.
    According to the allegations, Schroeder was serving a life
    sentence for first degree murder, was known for “having a bad
    temper,” and expressly warned a caseworker of his unwilling-
    ness to bunk with Berry. Berry was days away from a parole
    hearing, with a tentative release date of December 8, 2017.
    According to the allegations, although TSCI unit managers
    knew of the risks and warnings associated with placing Berry
    and Schroeder together, they nonetheless decided to house the
    inmates together. A staff member had expressed her concerns
    regarding the placement to several other staff members, stating
    that she “‘personally felt that it was not the best idea,’” since
    Berry “‘was known to be very talkative and bothersome,’” and
    that Schroeder “‘in for life, with a temper[,] would not want
    someone like’” Berry as a cellmate.
    The complaint alleges the following failures of the TSCI staff:
    •  “Two unit managers of TSCI were responsible for making
    the joint decision to double bunk Berry and Schroeder in
    restrictive housing, but they failed to complete the statement
    required by Administrative Regulation 210.01, wherein they
    state why the cell assignment provides each cellmate with
    reasonable safety from assault.”
    •  “Further, the unit managers did not complete the compatibil-
    ity assessment until after each inmate was warned that they
    would be double bunked with another inmate if they did not
    comply with the directive to move cells.”
    •  “In short, TSCI staff did not follow proper procedure required
    by Administrative Regulation 210.01(VIII)(G).”
    STATUTORY INTERPRETATION OF THE ASSAULT
    EXCEPTION IS THE SAME IN NEBRASKA
    AND U.S. SUPREME COURT
    At issue is the meaning of the “arising out of assault” lan-
    guage found in the State Tort Claims Act, § 81-8,219(4), and
    its federal counterpart in the Federal Tort Claims Act (FTCA),
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    28 U.S.C. § 2680(h) (2012), and specifically, whether this
    intentional tort exception to the waiver of sovereign immunity
    applies when the State is being sued for its allegedly negligent
    acts which occurred before an assault was committed by a non-
    governmental actor.
    We have stated that the waiver of sovereign immunity
    should be strictly construed and, as a corollary thereto, that
    the exceptions should be read broadly. See Brown v. State,
    
    305 Neb. 111
    , 
    939 N.W.2d 354
    (2020). We have specifically
    applied this approach to the intentional tort exception portion
    of the State Tort Claims Act, § 81-8,219(4), which exception is
    derived from the FTCA. See Jill B. & Travis B. v. State, 
    297 Neb. 57
    , 
    899 N.W.2d 241
    (2017). 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 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 justice 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 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) (Thomas, J., dissenting).
    The U.S. Supreme Court has warned, however, that “‘unduly
    generous interpretations of the exceptions run the risk of defeat-
    ing 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 tempta-
    tion 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 excep-
    tion “so broadly” that it “would judicially expand” exception).
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    Applying U.S. Supreme Court precedent and according a broad
    reading to the exception provisions of the FTCA to a fact pat-
    tern 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)], [the section] may not bar mixed
    claims of negligence and intentional conduct in the relatively
    uncommon case” where the negligence claim is independent
    of the intentional tort. Guccione v. U.S., 
    847 F.2d 1031
    , 1037
    (2d Cir. 1988). So even applying a broad reading to the inten-
    tional tort exception, cases like the instant matter are not barred
    where there is independent negligence by the government.
    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, without making an apt com-
    parison, the majority insists the Nebraska approach to statutory
    interpretation is so different that reading the same language
    requires a result in Nebraska different from that of the U.S.
    Supreme Court’s controlling authority.
    The majority takes this position because it insists on com-
    plete fidelity to the “strictly construe waiver” but “broadly
    construe exceptions” language. But this approach overlooks
    Nebraska’s jurisprudential experience with the “strict-broad”
    language. For example, as recently as in 2017, we considered
    another portion of the intentional tort exception provision, mis-
    representation, and said: “We must strictly construe the misrep-
    resentation exception to the waiver of sovereign immunity in
    favor of the State . . . .” Jill B. & Travis B. v. State, 
    297 Neb. 57
    , 95, 
    899 N.W.2d 241
    , 266 (2017) (emphasis supplied). This
    verbage simply illustrates why we should thoughtfully examine
    the language and provisions of the State Tort Claims Act for
    their coherent meaning rather than decide meaning based on
    imposition of a “strict-broad” label devoid of analysis. “Our
    object should be to read the Act so as to make it ‘consistent
    and equitable’, Feres, 340 U.S. at page 139, 71 S.Ct. at page
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    156, in which we should be untrammeled by any rule of ‘strict’
    or ‘liberal’ construction.” Panella v. United States, 
    216 F.2d 622
    , 624 (2d Cir. 1954).
    STATE TORT CLAIMS ACT IS PATTERNED AFTER
    THE FTCA SO WE LOOK TO U.S. SUPREME
    COURT DECISIONS UNDER THE FTCA
    We have long recognized that Nebraska’s State Tort Claims
    Act is patterned after the FTCA. See Johnson v. State, 
    270 Neb. 316
    , 
    700 N.W.2d 620
    (2005). And the FTCA was the
    culmination of a long effort to eliminate thousands of private
    claims bills at every session of Congress and thus mitigate the
    consequences of sovereign immunity from suit. United States
    v. Muniz, 
    374 U.S. 150
    , 
    83 S. Ct. 1850
    , 
    10 L. Ed. 2d 805
    (1963); Feres v. United States, 
    340 U.S. 135
    , 
    71 S. Ct. 153
    , 
    95 L. Ed. 152
    (1950). Where the U.S. Supreme Court cases have
    been clear, we have looked to U.S. Supreme Court precedent
    and legislative history of the FTCA to inform our reading of
    Nebraska statutes patterned after federal legislation. In Jill B.
    & Travis 
    B., supra
    , where we were considering the “misrep-
    resentation” exception in § 81-8,219(4), we first looked to the
    U.S. Supreme Court decisions for guidance. But where the U.S.
    Supreme Court does not directly provide the answer, we then
    consider other federal authority. See Haffke v. Signal 88, ante
    p. 625, 
    947 N.W.2d 103
    (2020) (explaining that it is appropri-
    ate to look to federal court decisions construing similar and
    parent legislation). Fortunately in this case, the U.S. Supreme
    Court’s decision in Sheridan v. United States, 
    487 U.S. 392
    ,
    
    108 S. Ct. 2449
    , 
    101 L. Ed. 2d 352
    (1988), supplies guidance
    and resolution.
    SHERIDAN OPINION (PLUS JUSTICE KENNEDY’S
    CONCURRENCE) SHOW THE STATE IS
    NOT IMMUNE FROM SUIT
    In the instant case, appellant alleged that the decision of the
    TSCI staff to double bunk the victim, Berry, with the inmate
    assailant, Schroeder, was negligent because it violated their
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    duty of care to Berry in a variety of ways. The district court
    and the majority in this case found that the negligence cause of
    action should be dismissed based on the exception provisions
    of § 81-8,219.
    Language of Intentional Tort Assault Exception
    Applies to Intentional Torts Committed by
    Governmental Employees But Not to
    Intentional Torts Committed by
    Nongovernmental Assailant
    As an initial matter, we quote Nebraska’s State Tort Claims
    Act as relevant to our analysis of whether appellant stated a
    cause of action. Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014)
    defines the “[t]ort claims” for which sovereign immunity is
    waived. This statute provides that such claims involve “the
    negligent or wrongful act or omission of any employee of the
    [S]tate.” See, similarly, 28 U.S.C. § 1346(b) (2012) (provid-
    ing for “claims . . . caused by the negligent or wrongful act
    or omission of any employee of the Government”). Later in
    § 81-8,219, the State Tort Claims Act provides exceptions,
    i.e., that there will be no liability for such act or omission of
    any employee of the State when the employee’s acts or omis-
    sions giving rise to the claim arise from his or her intentional
    torts. Section 81-8,219(4), the intentional tort exception, states
    that the State Tort Claims Act shall not apply to: “Any claim
    arising out of assault, battery, false imprisonment, false arrest,
    malicious prosecution, abuse of process, libel, slander, misrep-
    resentation, deceit, or interference with contract rights.” The
    FTCA exception language is comparable to § 81-8,219(4), but
    the FTCA includes an additional proviso not relevant here.
    The intentional tort exception, 28 U.S.C. § 2860(h), provides
    the United States shall not be liable for “[a]ny claim aris-
    ing out of assault, battery . . . .” I note that Congress and the
    Legislature did not bar any “suit” arising out of an assault;
    they barred only “claims,” which suggests that the exception
    was associated with intentional acts of governmental employ-
    ees against whom a claim could be filed as distinguished from
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    a nongovernmental intentional tort-feasor against whom a suit
    can be filed.
    Cases Interpreting Intentional Tort Assault
    Exception and Legislative History Show That
    It Applies to Intentional Torts Committed
    by Governmental Employees but Not
    to Intentional Torts Committed by
    Nongovernmental Assailant
    We have stated that the State Tort Claims Act, like the
    FTCA, represented the legislators’ willingness “to waive sov-
    ereign immunity where its employees acted negligently but not
    where they acted deliberately or recklessly—at least as to the
    specified torts.” Jill B. & Travis B. v. State, 
    297 Neb. 57
    , 73,
    
    899 N.W.2d 241
    , 254 (2017) (emphasis supplied). That is, we
    have recognized that the intentional tort-feasor addressed in
    § 81-8,219(4) is a governmental employee.
    The FTCA legislative history pertaining to the assault excep-
    tion was summarized in Panella v. United States, 
    216 F.2d 622
    (2d Cir. 1954), the case relied upon in 
    Sheridan, supra
    ,
    for its conclusion that a cause of action may exist where there
    is an allegation of antecedent negligence by the government,
    notwithstanding the existence of an assault in the narrative.
    In particular, the legislative history of the FTCA shows that
    the “‘assault and battery’ exception related to acts of govern-
    ment employees.” 
    Panella, 216 F.2d at 626
    . The debate of
    “Hearings on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess.
    p. 33” in 1942 shows the following questions and answers:
    “‘Mr. Robsion: On that point of deliberate assault[,] that is
    where some agent of the Government gets in a fight with
    some fellow? Mr. Shea: Yes. Mr. Robsion: And socks him?
    Mr. Shea: That is right.’” 
    Panella, 216 F.2d at 626
    (emphasis
    omitted).
    Most of our string of cases discussing the intentional tort
    assault exception under the State Tort Claims Act, and its
    roughly comparable counterpart in the Political Subdivisions
    Tort Claim Act, have involved intentional acts committed by
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    state or local governmental employees, and we have applied
    the exception and found immunity thus resulting in dismissal.
    E.g., Rutledge v. City of Kimball, 
    304 Neb. 593
    , 
    935 N.W.2d 746
    (2019) (involving city employee choking victim); Britton
    v. City of Crawford, 
    282 Neb. 374
    , 
    803 N.W.2d 508
    (2011)
    (involving law enforcement shooting the decedent); Johnson
    v. State, 
    270 Neb. 316
    , 
    700 N.W.2d 620
    (2005) (involv-
    ing sexual assault by Department of Correctional Services
    employee). However, in Doe v. Omaha Pub. Sch. Dist., 
    273 Neb. 79
    , 
    727 N.W.2d 447
    (2007), a student was the assailant
    and the exception did not apply; hence, the political subdivi-
    sion waived immunity.
    The majority relies on this string of cases (except for Doe)
    to support its decision. As I noted above, in these cases, the
    assailant was a governmental employee and it was the con-
    duct of these actors to which the statutory assault exception
    was addressed and from whose acts the governmental entity
    remained immunized. These cases merely say that the govern-
    ment does not lose its immunity in cases where injuries arise
    from assaults by government actors.
    The majority opinion’s reliance on this string of cases is not
    helpful where, as here, the assault was committed by a nongov-
    ernmental individual, i.e., an inmate. As explained, the State
    Tort Claims Act’s general waiver of immunity applies only to
    governmental employees. The claims covered by the State Tort
    Claims Act are those claims which involve “the negligent or
    wrongful act or omission of any employee of the [S]tate.”
    § 81-8,210(4). It logically follows that, as stated in Sheridan,
    [t]he 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 FTCA [or
    the State Tort Claims Act], the [intentional tort] exception
    could not apply to such an assault; rather, the exception
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    only applies in cases arising out of assaults by federal [or
    State] employees.
    Sheridan v. United States, 
    487 U.S. 392
    , 400, 
    108 S. Ct. 2449
    ,
    
    101 L. Ed. 2d 352
    (1988).
    For completeness, I note that I am aware of more nuanced
    considerations where there is some question as to whether the
    government-employed assailant was acting within the scope
    of his or her duties at the time of the incident and other cases
    where the government is being sued for preceding acts of
    negligent hiring, retention, or supervision of a government-
    employed assailant. See Rebecca L. Andrews, So the Army
    Hired an Ax-Murderer: The Assault and Battery Exception to
    the Federal Tort Claims Act Does Not Bar Suits for Negligent
    Hiring, Retention and Supervision, 
    78 Wash. L
    . Rev. 161
    (2003). But these issues are not implicated in the instant case.
    Indeed, with respect to the former, Sheridan clarifies that in
    permitting the negligence claim to go forward, the assailant’s
    “employment status [at the moment of the incident] has [no]
    bearing on the basis for petitioners’ [negligence] claim for
    money damages, [and § 2680(h),] the intentional tort exception
    to the FTCA[,] is not applicable in this 
    case.” 487 U.S. at 403
    .
    Here, the basis for appellant’s claim is the tort of negligence,
    independent from the injury resulting from an intentional act
    by an assailant who was not a governmental employee. That
    should end the matter, but given the majority opinion, the
    analysis must continue.
    Sheridan Rejects the “But for the Assault”
    Rationale Relied On by the
    Majority in This Case
    The majority finds that the assault need not be by a govern-
    mental employee so long as there is an assault somewhere in
    the picture. That is, the majority states that the State’s alleged
    antecedent negligence arises only as a result of the subsequent
    assault albeit by a nongovernmental actor. The majority rea-
    sons that “but for” the assault, there can be no alleged neg-
    ligence by the State. The “but for” rationale of the majority
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    here is reminiscent of the plurality view in United States v.
    Shearer, 
    473 U.S. 52
    , 
    105 S. Ct. 3039
    , 
    87 L. Ed. 2d 38
    (1985),
    but that view was later expressly rejected in the Sheridan
    opinion. See 
    Andrews, supra
    .
    The “but for” rationale adopted by the majority suffers from
    several defects, including confusing “claim” with “injury.”
    Not only is it belied by the language of the statute discussed
    above, but it ignores a basic precept of tort law that one injury
    “can arise from more than one wrongful act[s]”—in this case,
    a negligence “claim” which is distinct from an assault. See
    Sheridan v. United States, 
    487 U.S. 392
    , 405, 
    108 S. Ct. 2449
    ,
    
    101 L. Ed. 2d 352
    (1988) (Kennedy, J., concurring). See,
    also, 1 Restatement (Third) of Torts: Liability for Physical
    and Emotional Harm § 34 (2010). An event may have more
    than one proximate cause. See 1 Restatement 
    (Third), supra
    .
    An intentional act intervening between a negligent act and
    the result does not always vitiate liability for the negligence.
    Id. A superseding cause
    of harm will not excuse an actor’s
    negligence where the actor should have realized the likelihood
    that such a situation might be created and the third person
    might avail himself of the opportunity to commit such a tort or
    crime.
    Id. As Justice Kennedy
    stated in Sheridan, the “but for”
    approach adopted by the Sheridan dissent (and by this court’s
    majority) implies that the “intentional act somehow obliterates
    the legal significance of any negligence that precedes or fol-
    lows 
    it.” 487 U.S. at 406
    (Kennedy, J., concurring).
    Contrary to the majority, I read the complaint to allege neg-
    ligence by the TSCI staff in a variety of ways, e.g., violating
    duty of care for inmates, not following regulations regarding
    the decision to double bunk, ignoring the known dangerous
    propensity of Schroeder, et cetera, which acts are distinct and
    predate the intentional assault by the nongovernmental assail-
    ant. In Block v. Neal, 
    460 U.S. 289
    , 298, 
    103 S. Ct. 1089
    , 
    75 L. Ed. 2d 67
    (1983), the U.S. Supreme Court explained that
    given the language and history of the FTCA, even where a
    governmental employee’s conduct makes certain claims not
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    actionable due to an exception in 28 U.S.C. § 2680(h), a claim-
    ant is not barred by that statute from pursuing a distinct claim
    “arising out of other aspects of the Government’s conduct.”
    As stated in a concurrence to an opinion of the U.S. Court of
    Appeals for the 11th Circuit: “So it is clear that any suggestion
    that [the intentional tort exception,] § 2680(h)[,] bars all claims
    for which the injuries arose directly out of an excepted tort is
    overly broad, incorrect, and inconsistent with the governing
    law of Sheridan.” Alvarez v. U.S., 
    862 F.3d 1297
    , 1314 (11th
    Cir. 2017) (Rosenbaum, J., concurring).
    Appellant’s Negligence Cause of Action
    Against the State Did Not “Arise” From
    the Nongovernmental Assailant’s
    Intentional Assault
    Appellant alleged a cause of action for negligence against
    the State by virtue of certain governmental employees alleg-
    edly having failed in their duty to protect and care for the
    inmate Berry. Although another inmate, Schroeder, assaulted
    Berry, the State’s alleged antecedent negligence is premised
    on breach of a “different duty,” see 
    Block, 460 U.S. at 297
    ,
    sometimes referred to as an “independent affirmative duty.”
    See LaFrancis v. U.S., 
    66 F. Supp. 2d 335
    (D. Conn. 1999)
    (collecting cases under doctrine of independent affirmative
    duty). The injury from the assault on Berry can be traced back
    to more than one type of tortious conduct, and the two torts
    at issue, negligence and an intentional tort, do not rely on the
    same factual allegations.
    
    Sheridan, supra
    , has been described as carving out an
    “exception to an exception to an exception to a general rule.”
    CNA v. United States, 
    535 F.3d 132
    , 148 (3d Cir. 2008). The
    general rule is sovereign immunity, the first exception is the
    FTCA’s limited waiver of the government’s immunity, the sec-
    ond exception is the intentional tort exception that reinstates
    the government’s immunity, and the third exception is the
    narrow category of cases, identified in Sheridan, which may
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    proceed against the sovereign. As noted, the third category
    reflects the independent affirmative duty doctrine.
    The Sheridan Court held that “in at least some situations[,]
    the fact that an injury was directly caused by an assault or
    battery will not preclude liability against the Government for
    negligently allowing the assault to 
    occur.” 487 U.S. at 398
    .
    Contrary to the majority’s view to the effect that the State’s
    alleged negligence arises from the assault, the roots of the
    assault lie in the State’s own alleged negligence. So it would
    be contrary to the language of the State Tort Claims Act and
    unsound to afford immunity to an alleged breach of duty by
    a governmental entity because an intervening event, the very
    anticipation of which made that governmental entity’s con-
    duct negligent, has brought about the expected harm. Doe v.
    Durtschi, 
    110 Idaho 466
    , 
    716 P.2d 1238
    (1986).
    The U.S. Court of Appeals for the 10th Circuit, relying on
    U.S. Supreme Court precedent, summarized the key inquiry
    in cases of two torts as “can an FTCA plaintiff escape the bar
    of § 2680(h) by arguing that the battery was the natural con-
    sequence of prior governmental negligence . . . ?” Franklin v.
    U.S., 
    992 F.2d 1492
    , 1498 (10th Cir. 1993). If the answer to this
    question is in the affirmative, the complaint survives. The com-
    plaint in this case does make this argument, and in my view,
    should not be dismissed at this stage of the proceedings.
    In Sheridan v. United States, 
    487 U.S. 392
    , 
    108 S. Ct. 2449
    , 
    101 L. Ed. 2d 352
    (1988), where liability against the
    government was not precluded, the Court relied on two cases
    which involved assaults by inmates rather than by govern-
    mental employees. Both cases alleged negligence by federal
    employees by failing to prevent the assault that caused injury:
    United States v. Muniz, 
    374 U.S. 150
    , 
    83 S. Ct. 1850
    , 10 L.
    Ed. 2d 805 (1963) (allowing 12 inmates to gather to beat up
    one inmate, the plaintiff), and Panella v. United States, 
    216 F.2d 622
    (2d Cir. 1954). The Sheridan Court agreed with
    Judge (later Justice) Harlan’s reasoning in Panella based on
    statutory interpretation to the effect that the intentional tort
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    exception only applied to claims already authorized by the
    waiver of sovereign immunity, that is, to claims involving
    torts committed by governmental employees. In Nebraska,
    that concept is found in § 81-8,210(4), which provides that
    the claims to which sovereign immunity is waived are “the
    negligent or wrongful act or omission of any employees of the
    [S]tate.” Contrary to § 81-8,210(4), the majority’s reasoning
    assumes that the waiver of the State’s immunity includes a
    claim against the State under the State Tort Claims Act based
    solely on an inmate’s assault of another inmate. But there is no
    such cognizable claim under the State Tort Claims Act, so one
    cannot logically apply an exception to a nonexistent claim. See
    
    Sheridan, supra
    .
    An assault by a nongovernmental employee could not pro-
    vide the basis for a claim under the FTCA, and the U.S.
    Supreme Court held that the assault exception “only applies in
    cases arising out of assaults by federal employees.” 
    Sheridan, 487 U.S. at 400
    . This conclusion is based on federal statutory
    language comparable to that of Nebraska’s State Tort Claims
    Act. In view of the foregoing, the Sheridan Court found it
    unnecessary to rely on the temporal reasoning in Muniz to the
    effect that the plaintiff’s claim did not “‘arise out of’” the
    assault by the inmates that caused the injuries, but instead the
    focus is on
    the Government’s negligent act or omission [in failing
    to prevent the assault that caused injury]; the intentional
    commission is simply considered as part of the causal link
    leading to the injury. Under this view, the assailant’s indi-
    vidual involvement would not give rise to Government
    liability, but antecedent negligence by Government agents
    could . . . .
    
    Sheridan, 487 U.S. at 399
    . In both Muniz and Panella, upon
    which Sheridan relied, just as in the instant case, recovery was
    sought based on the negligence of the governmental entity, and
    given the fact that the assaults were committed by inmates, the
    intentional tort exception was not applicable.
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    CONCLUSION
    Given the foregoing analysis, in my view, this complaint
    should not be dismissed under the intentional torts assault
    exception to the waiver of sovereign immunity because the
    complaint adequately alleges negligence by the State in vio-
    lation of its own regulations for the act of “double bunk-
    ing” a “talkative,” soon-to-be-released inmate with a “bad
    temper[ed]” inmate serving a life sentence, the latter of whom
    within 5 days of sharing a cell “wrapped his arm around the
    [former’s] neck and squeezed for five minutes” until “he felt
    certain [the former] was dead.”