Saturday, February 03, 2007

Lawsuits against the State of Nebraska under the Tort Claims Act are not "special proceedings" so the District Court's preliminary finding that the plaintiff had complied with procedural requirements of the tort claims act was not an appealable order. Pfeil v. State, S-05-896, 273 Neb. 12 Plaintiff County road worker was injured in an accident with a state road plow. Nearly two years after the accident, the plaintiff hired a new lawyer who wanted to lookinto a tort claim against the state. He could not determine whether the Plaintiff had filed a tort claim before then. Four days before the 2nd anniversary of the accident the plaintiff's new counsel filed simultaneously a state tort claim and a suit in douglas county district court against the state. See 81-8227 RRS Neb. Six months later the plaintiff withdrew his administrative tort claim and also amended his complaint to reflect this action. See 81-8213. The State argued that the Plaintiff's initial filing constituted a withdrawal of his tort claim, thus it was not timely. The district court agreed with the plaintiff during a separate trial. The State appealed and the Nebraska Supreme Court dismisses the appeal. According to § 25-1902 special proceeding includes every special statutory remedy which is not in itself an action. Webb v. American Employers Group, 268 neb. 473, 684 n.W.2d 33 (2004). a judgment rendered by the district court that is merely a step or proceeding within the overall action is not a special proceeding. Id. a special proceeding which affects a substantial right is, by deinition, not part of an action. Id. Generally, a “special proceeding,” within the meaning of § 25-1902, entails civil statutory remedies not encompassed in chapter 25 of the Keef v. State, supra. examples of nebraska revised statutes.however, that a reading of the act as a whole indicates that once suit is instituted, an action against the state is intended for the most part to be treated as any other negligence action. this intent is expressed in § 81-8,216, which provides that the district courts shall follow the rules of civil procedure applicable to private litigants in actions against the state.

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