E.D. v. Bellevue Public School District

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E.D. v. Bellevue Public School District

Caselaw No.
299 Neb. 621
Filed on
Friday, April 13, 2018

Summary:  E.D. brought suit against the Bellevue Public School District (BPS) and Bradley Nord, under the Political Subdivisions Tort Claims Act (PSTCA). This was an appeal and cross-appeal from an order overruling claims of sovereign immunity in separate motions to dismiss.

In November 2016, E.D. filed a complaint alleging several claims in district court against BPS and Nord related to Nord’s initiation of nonconsensual sexual contact that resulted in a year-long sexual relationship that occurred mostly on BPS premises. Specifically, E.D. asserted negligence on the part of BPS in that its duty to provide a safe environment to students and failure to enact reasonable safeguarding policies related to a teacher’s aide program that paired E.D. and Nord together.

Both BPS and Nord filed motions to dismiss on the grounds of sovereign immunity which were denied and followed by motions to reconsider which were eventually granted by the Court of Appeals before the Supreme Court removed the case to their docket.

In this appeal, BPS assigned that the court erred: in not granting the motion to dismiss via the immunity argument; for not dismissing allegations against it in light of Nord’s intentional acts as the actual “but for” cause of the damage; and not applying the correct political subdivision employee case law for intentional act cases.

In its review, the Supreme Court first considered the jurisdictional allowances at play, citing that subject matter jurisdiction can be raised at any time by any party. The Court concluded that it isn’t precluded from reconsidering Court of Appeals decisions and that the Court of Appeals reinstatement of the appeal following the motion for reconsideration wasn’t a definitive conclusion of the jurisdictional issue “but only a determination that there was not a clear lack of jurisdiction under the stated precedent.”

Turning to E.D.’s assertion that the Court does not have the statutory authority to consider the appeal, the Court first laid out the statutory allowances of appellate jurisdiction and the requirement of an appeal to be based off of a final, appealable order. Here, the Court concluded that, as BPS conceded, the overruling of a motion to dismiss is “typically not a final order.” However, some potential elbow-room is argued for in the collateral order doctrine which requires an order to“(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” The Court then set out to detail and resolve the evolutionary history of the collateral order doctrine, finally determining that the collateral order doctrine had been used at times to circumvent statutory authority granted by the legislature.

As a result, the Supreme Court overruled the corresponding case law presented in StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238 (2011) “to the extent that it authorized appellate jurisdiction in the absence of a judgment or final order and without specific statutory authorization” and argued here on behalf of using collateral order doctrine to allow an interlocutory appeal from a denial of sovereign immunity.

The Supreme Court dismissed the appeal.