S-24-0946 Jennifer Egri, mother and next friend of Tristyn Egri, a minor child (Appellant) v. Otoe County NCPS 111 a/k/a Nebraska City Public Schools, Mark Fritch, and Brian Hoover (Appellees)
Appeal from the District Court for Otoe County, Judge Julie D. Smith
Attorneys: Erin Dolph (Education Rights Counsel for Appellant) and Charles E. Wilbrand and Anthony M. Budell (Knudsen, Berkheimer, Richardson & Endacott for Appellees)
Civil: Political Subdivision Tort Claims Act (PSTCA)
Proceedings below: Appellant sued Appellees under the PSTCA and alleged that her non-verbal and disabled son was physically and emotionally abused and subjected to corporal punishment. The district court determined that it lacked subject matter jurisdiction and dismissed the case. On its own motion, the Nebraska Supreme Court ordered this case to be transferred from the docket of the Nebraska Court of Appeals to its docket. Issues: Appellant assigns the following errors: 1) The district court erred in dismissing Appellant’s complaint for lack of subject matter jurisdiction under the PSTCA because Appellant plead sufficient facts, taken as true, to show that no exceptions to the PSTCA’s waiver of immunity apply; 2) The district court erred in dismissing Appellant’s claims of negligence and emotional abuse as “arising out of assault and battery;” 3) The district court erred in dismissing Appellant’s claims of negligent supervision of Tristyn and corporal punishment of Tristyn as “discretionary functions” excepted from the PSTCA’s waiver of immunity; 4) The district court erred in holding that Appellees’ lack of supervision of Tristyn constituted “teaching” and thus was permissible as a “discretionary function;” 5) The district court erred in holding negligent supervision by Appellees, who have a special relationship with students and who are expressly regulated concerning duties of that relationship, was permissible as a “discretionary function;” 6) The district court erred in holding that Appellees’ corporal discipline of Tristyn was not legally prohibited corporal punishment and therefore not permissible as a “discretionary function;” 7) The district court erred in admitting evidence outside of the pleadings without converting Appellees’ motion to dismiss to a motion for summary judgment; 8) The district court erred in holding that an affidavit and an insurance policy proffered by Appellees were admissible as “public record” with no legal support for same; 9) The district court erred in holding that an affidavit created by Appellees after the filing of Appellant’s complaint, and an insurance policy proffered by Appellees, were “referred to” and “embraced by” the complaint; and 10) The district court erred by accepting and considering the contents of the affidavit and the insurance policy and making a conclusion, based on this evidence, that the proffered insurance policy did not waive tort claims liability in the instant matter without converting the motion to dismiss to a motion for summary judgment.