Saturday, February 17, 2007

Nebraska Supreme Court continues to chip away at the Political Subdivision Tort Claims Act: Supreme Court reverses 12(b)(6) that Omaha Public School District won against victim of alleged sexual assault. Doe v. Omaha Pub. Sch. Dist., S-05-794, 273 Neb. 79 Whether it was a rule 12(b)(6) ruling or one for summary judgment, the Supreme Court rules that the plaintiff could take to trial her claim that the School was negligent in not handling better a rogue student who assaulted her. Though the political subdivision tort claims act excludes incidents "arising" out of assaults (13-910(7) RRS Neb), the Supreme Court finds a way around the statute by finding the possible negligence occurred before the assault. See Sheridan v. United States, 487 u.S. 392, 401, 108 S. Ct. 2449, 101 L. ed. 2d 352 (1988) {naval personnel failed to restrain or apprehend armed drunken sailor who shot several bystanders near Bethesda Hospital, Federal Tort claims act exclusion did not apply} Further the acts of the school principal were not clearly discretionary functions13-910(2) RRS Neb). The supreme court failed to address however whether the act's additional loophole that the subdivision's purchase of liability insurance for otherwise immune incidents that wipes out the 13-910 immunity, See 13-916 , still means that Nebraska must adopt cookie cutter fashion all federal interpretations of the Federal Tort Claims Act.

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