Doe v. State

Nebraska Supreme Court · 2022 · Torts

TortsSovereign immunityState Tort Claims ActNegligenceState Tort Claims Actsovereign immunitysubject matter jurisdictiontort claim definition

Facts

Doe had prior convictions that were pardoned in 2016, and a court later sealed the related criminal history record information under § 29-3523(5). In 2019, he applied for a caseworker position with DCS and answered that he had no criminal history. According to the complaint, NSP provided DCS with criminal history information that included the sealed records, and DCS then told Doe he would not be hired because of his criminal history. Doe brought a single negligence claim under the STCA, seeking monetary damages as well as injunctive relief and expungement.

Issue

Did Doe's complaint allege a "tort claim" within the STCA's limited waiver of sovereign immunity by plausibly alleging conduct for which a private person, under like circumstances, would be liable in tort? More specifically, does § 29-3523 or Nebraska common law create a duty that would make a private person liable for disclosing or considering sealed criminal history information?

Rule

Under §§ 81-8,210(4) and 81-8,215, the STCA waives sovereign immunity only for tort claims for which a private person, under like circumstances, would be liable in tort to the plaintiff. To establish subject matter jurisdiction under the STCA, a plaintiff must plausibly allege a "tort claim" as defined by the Act, including the private-person-liability requirement. Section 29-3523 does not create a legal duty giving rise to private civil tort liability, and Nebraska does not recognize a common-law duty not to disclose sealed criminal history information.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Lincoln, Nebraska, Maya Ortiz sued the State under the State Tort Claims Act after a state licensing office allegedly released information that a Nebraska statute said the agency should keep confidential. Her complaint pleaded only negligence and sought money damages, alleging the agency violated the statute and caused her to lose a job offer.

If the statute does not create private civil tort liability and Nebraska common law recognizes no comparable duty, what is the strongest argument for dismissing Maya's suit?

Explanation. Under the majority opinion, the STCA's waiver applies only to tort claims for which a private person, under like circumstances, would be liable in tort. That private-person requirement is jurisdictional, so a plaintiff must plausibly allege it both to state a claim and to establish subject matter jurisdiction. If neither the statute nor common law supplies a private-person duty, the suit must be dismissed for lack of subject matter jurisdiction.