The Lawletter Vol 43 No 1
The parents of a child sexually abused by a child they adopted brought an action against the state of Nebraska for negligent failure to warn or disclose, and failure to supervise. A state employee incorrectly stated to the parents before the adoption that the adopted child had no sexual abuse history. After a bench trial, the trial court entered judgment for the State based on the defense of sovereign immunity. When the parents appealed, the Supreme Court of Nebraska affirmed the lower court ruling. Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
Like statutes in many other states, Nebraska's Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 et seq., includes a waiver of the state's sovereign immunity from tort liability, but it also retains such immunity for some broad categories of conduct. Statutes authorizing a lawsuit against the State are strictly construed, since they are in derogation of the State's sovereignty. Under the intentional torts exception, sovereign immunity is not waived for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Neb. Rev. Stat. § 81-8,219(4).
In Jill B., the State argued that it had immunity because the crux of the plaintiffs' allegations was that an employee of the State had made misrepresentations to the adopting parents about the sexual abuse history of the child they were considering for adoption. On at least three occasions, the adopting mother asked a children and family services specialist with the State whether there was anything “sexually” in the background of the child to be adopted. Each time the response was "no." The mother was told only that there had been concerns about “inappropriate” contact between the child to be adopted and his brother. In fact, the child to be adopted had been sexually abused by his brother, and the State worker was aware of those allegations but did not share them with the adopting parents.
Posing an issue of first impression for the court was the adopting parents' argument that, because the tort of fraud or misrepresentation is generally an economic tort against financial interests, asserted in a business context to recover pecuniary loss, it should not be applied to the parents' claim for their child's personal injury. The court conceded that one who makes a fraudulent or negligent misrepresentation in a business transaction is normally liable only for the recipient's pecuniary losses. While there is a split of authority nationally, the Court sided with those courts that have declined to limit immunity for misrepresentation to pecuniary losses and have instead extended the immunity to personal injury claims. If the Legislature wishes to expand the scope of the State's liability by limiting application of the misrepresentation exception to claims arising from commercial transactions or which involve only pecuniary losses, it has the power to amend the statute accordingly.
Although "misrepresentation" is grouped among intentional torts like assault and battery in the relevant statute, the court in Jill B. concluded that it was immaterial whether the state employee negligently or intentionally concealed the sexual history from the adopters, whose allegations on failure to warn and failure to disclose asserted a failure to communicate critical information.
The plaintiff parents pointed to case law stating that a governmental entity is liable for injuries resulting from negligence in the performance of operational tasks, even though misrepresentations may be collaterally involved. But in this case, the misrepresentation exception to waiver of sovereign immunity applied to the claims arising out of the State employee's failure to disclose the adopted child's sexual abuse history, despite the contention that there was an independent operational duty to disclose, which should have precluded immunity. Even though the State had what can be described as an operational duty to warn about the sexual history, the essence of the claim was a breach of a duty not to miscommunicate. The adopting parents did not allege any injury that was independent of that caused by the erroneous information. Any operational duty to disclose was subsumed by the misrepresentation exception to the waiver of immunity.Finally, the parents in Jill B. contended that, notwithstanding the retention of sovereign immunity for misrepresentations, the State should be held liable on a separate theory based on negligent supervision of the employee who made the misrepresentations to the parents. This argument was also unsuccessful. The court reasoned that the negligent supervision claim still stemmed from the misrepresentation, and any such negligence was inextricably linked to the misrepresentation. To allow the negligent supervision claim would be to violate the principle that recasting an immunized tort claim as a negligence claim does not avoid the bar of immunity. See Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005) (where the plaintiff's tort claim is based on the employment relationship between the intentional tortfeasor and the government, such as a negligent supervision or negligent hiring claim, the intentional tort exception to the state Tort Claims Act applies, and the state is immune from suit). To hold otherwise would be to allow litigants to circumvent the substance of the intentional torts exception because it is likely that many, if not all, intentional torts of government employees plausibly could be ascribed to the negligence of the tortfeasor's supervisors.