Sunday, May 28, 2006
Incident exceptions such as the Snow, ice,weather condition exceptions to the Nebraska Political Subdivision Tort Claim Act limit the Acts waiver of sovereign immunity; accident that occurred while Omaha School District van driver collided with vehicle on rain slickened street was still subject to the filing requirements of the political subdivision tort claim actWise v. Omaha Public Schools, 271 Neb. May 26, 2006. No. S-05-491. Exceptions to the PSTCA are affirmative defenses, and inappropriate for Rule 12b motion; however court will treat motion as motion for summary judgmentThe issue of noncompliance with the notice provisions of the PSTCA must be raised as an affirmative defense specifically expressing the plaintiff's noncompliance. Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995). It is not one of the enumerated defenses which can be asserted by a motion to dismiss pursuant to rule 12(b), as OPS and Kelley incorrectly sought to do in this case. Supreme Court affirms summary judgment as Plaintiff failed to comply with political subdivision tort claim act filing requirements. Section 13-908, which provides that in suits brought pursuant to the PSTCA, "the political subdivision shall be liable in the same manner . . . as a private individual under like circumstances," sets forth a general waiver of sovereign immunity subject to certain limited exceptions stated in § 13-910. McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002) The exceptions set forth in § 13-910 are affirmative sovereign immunity defenses to claims brought pursuant to the PSTCA. Harris v. Omaha Housing Auth., 269 Neb. 981, 698 N.W.2d 58 (2005). If a claim falls within one of the exceptions stated in § 13-910, it fails based upon sovereign immunity. Even if § 13-910(10) were applicable, it would not provide a basis for a claim against OPS or Kelley independent of the PSTCA. In Harris v. Omaha Housing Authority, supra, we specifically rejected an argument that the requirements of the PSTCA do not apply to claims that fall within one or more of the exceptions stated in § 13-910. We reasoned that because the exceptions were affirmative sovereign immunity defenses to claims brought pursuant to the PSTCA, a finding that a claim fell within one or more of the exceptions would require dismissal of the complaint.
Posted by stan_sipple at 6:11 AM