Birkett v. State

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Birkett v. State

Case Number
Call Date
August 31, 2016
Court Number
Case Summary

S-15-0778 Jill Birkett and Travis Birkett, Individually and as Parent and Next Friend of B.B., a minor child (Appellants) v. State of Nebraska and the Nebraska Department of Health and Human Services

Gage County, Judge Paul W. Korslund

Attorneys: Jeffrey A. Wagner, Ryan P. Watson (Schirber & Wagner LLP) (Appellants) --- David A. Lopez, Bijan Koohmaraie (Attorney General's Office)

Civil: Nebraska State Tort Claims Act; exceptions to sovereign immunity

Proceedings below: Following a trial to the court, the court found the State Tort Claims Act specifically excepts from its waiver of governmental immunity claims that are based on misrepresentation and deceit and entered judgment in the State's favor. The complaint was dismissed with prejudice. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: I. The Trial Court Erred When It Found The Birkett's Claim Was Barred Under The Misrepresentation Exception To Neb. Rev. Stat. ' 81-8219 Because Appellees Failed To Properly Present Their Affirmative Defense. II. The District Court Erred by Finding the Birketts' Claim Fell Within the Misrepresentation Exception of the State Tort Claims Act. III. The District Court Erred by Finding That Jodene Gall Was Not Negligently Trained and Supervised. IV. The District Court Erred by Reconsidering the Issue of Sovereign Immunity in Contravention of the Law- of-the-case Doctrine