Second attempt made to let NE families sue local government in cases of child abuse, sexual assault

LINCOLN — A local mother whose child was sexually assaulted at school urged Nebraska lawmakers Friday to reverse Gov. Jim Pillen’s “unconscionable” veto earlier this year of legislation that would have let families sue local governments and schools for negligence.

Loree Woods, testifying on behalf of her daughter, Taylor, now 27, said that when lawmakers passed Legislative Bill 25 in April, it felt like her family “won.” That bill opened a narrow path for cases alleging negligence resulting in child sexual assault or child abuse.

State Sen. Justin Wayne of Omaha reintroduced the measure as part of LB 57 this summer.

Loree Woods said Lincoln Public Schools divided an adult group program in 2016 in a way that she alleges allowed her daughter to be left alone with a male student who sexually assaulted her. Taylor Woods would be too old to sue now under state law, regardless of whether Wayne’s proposal was successful.

The bill’s passage last spring meant the family could “slam the door shut on that horrific ordeal,” Loree Woods said. Lawmakers passed LB 25, 28-17, on the final day of the regular session, offering no chance to override Pillen’s veto.

In issuing his veto, Pillen cited a possible erosion of sovereign immunity for local governments that could lead to increased taxes. He said perpetrators, not taxpayers, should be held accountable.

“Taylor, our family and friends were absolutely crushed,” Woods said Friday. “It was like starting all over — night terrors, sleepless nights, tears, fears, all came flooding back, of ‘Am I safe?’”

Moser v. State (2020)

Loree Woods has shared Taylor’s story with the Legislature at least six times in recent years. She has joined bipartisan efforts seeking to change the law after the Nebraska Supreme Court ruled in Moser v. State in 2020. 

The law Wayne proposes changing prohibits lawsuits against local governments if the claim arises out of actions including assault, battery, libel, slander and misrepresentation.

In Moser and a string of subsequent decisions the court said if the lawsuit included an assault or battery, even by a third party, the state or local government was immune from civil liability.

The Moser lawsuit accused the Nebraska Department of Correctional Services of allegedly ignoring warnings about bunking two inmates together — Patrick W. Schroeder and Terry L. Berry — in 2017. Schroeder strangled Berry five days after they were moved into the same cell, and Berry later died of his injuries.

Prior to the 2020 ruling, the state’s highest court hadn’t prevented such cases if the local government or school was “independently negligible,” Spike Eikholt, representing the Education Rights Counsel and Voices For Children, told the Judiciary Committee.

‘This isn’t open season’

Wayne said repeatedly this summer that a revival of the vetoed legislation had to be on the table, or he wouldn’t consider voting for any property tax-related legislation.

Part of the urgency sprang when the Nebraska Supreme Court, ruling in another case in May, just a couple of weeks after the Legislature adjourned, further expanded sovereign immunity for political subdivisions. 

Joshua v. State involved three foster siblings who said they underwent decades of abuse and sexual assault in foster care that they alleged the Nebraska Department of Health and Human Services didn’t prevent. The court determined the siblings hadn’t presented evidence to prove DHHS acted negligently.

Wayne leaned into that point, asking his fellow Judiciary Committee members to realize that a lawsuit doesn’t equate to an immediate win. However, the court’s decisions prevent families from even presenting their case.

“My question to this committee is, at a bare minimum, does that child get a day in court? At a bare minimum, can a judge at least look at the evidence to see whether the state is liable or not?” Wayne said. “Right now, the answer is no.”

Wayne, a lawyer, presented evidence that the “floodgates” wouldn’t open to a flurry of new cases if his bill passed. He cited the small number of cases pre-Moser that went to trial — less than 10%. Under the Political Subdivisions Tort Claims Act, lawsuits have a quick deadline compared to other civil lawsuits (up to one year after the incident).

“This isn’t open season — we have it limited to death and sexual assault,” Wayne said. “If those two things are happening that much in your county, we have a bigger problem and nobody can tell me different.”

‘Indemnifying predators’

Local political subdivisions, including representatives from DHHS and the Nebraska Attorney General’s Office, testified against the legislation. They opposed Wayne’s earlier bill, as well.

Elaine Menzel of the Nebraska Association of County Officials, also representing sheriffs, municipalities, county attorneys and school boards, said LB 57 would “greatly erode sovereign immunity,” which protects them from lawsuits. Menzel said it would also add costs and lead to reduced services.

“We do acknowledge that it is the Legislature’s role as the court has stated in court cases to address the Political Subdivisions Tort Claims Act, but we would ask you to please maintain the current level of sovereign immunity that we have at this time,” Menzel said.

Bo Botelho, chief legal officer for DHHS, testified that children’s safety is of the “utmost importance” to DHHS, though it acknowledges that tragedies can and do occur. He said allowing such lawsuits would increase costs but wouldn’t prevent future cases.

In an exchange with State Sen. Terrell McKinney of Omaha, Botelho said “there are people who are monsters that have yet to be caught and yet to be convicted, and those people do spend their life trying to get in positions where they can have access to children.”

He continued, “I am saying the state taxpayer should not be indemnifying [compensating] predators.” 

McKinney and State Sen. Carol Blood of Bellevue said the state should be able to step up to make victims “whole.”

Other available remedies?

Senators who opposed Wayne’s bill in the spring have said victims already have recourse, pointing to Section 1983 of federal law that allows people to file civil lawsuits for deprivation of rights.

Cameron Guenzel, an attorney with the Nebraska Association of Trial Attorneys, said that point is “demonstrably false.” He said he recently litigated a case in which Lincoln Public Schools argued the issue of sexual assault fell outside Section 1983 and outside Title IX, a federal rule regarding sex-based discrimination in education.

That case dealt with alleged sexual assault in a Schoo Middle School classroom in northwest Lincoln. 

The legal complaint alleges students held down another male student, prodded him with part of an electrical outlet, tried to push it into his mouth, threw objects at his genitals, choked him, showed him pornography and called him a derogatory word for LGBTQ people. One of those students allegedly rubbed his genitals on the victim’s face, which LPS lawyers said was sexually based.

A lawyer supporting LPS wrote that the incident did not occur because of the victim’s sex or gender, which is required under Title IX. LPS also moved to dismiss the case, stating failure to cite specific constitutional or school board policy violations, as required with Section 1983 claims.

Guenzel said if lawmakers think the federal law  is an “adequate remedy,” they “now have the proof from LPS’s own attorneys that that’s utter nonsense.”

AG’s Office: ‘No tax savings’

Jennifer Huxoll, chief of the Nebraska Attorney General Office’s Civil Litigation Bureau, said Wayne’s LB 57 would provide “no tax savings” and could instead increase property taxes.

Wayne has said punitive damages in such cases could be paid out to public school districts, leading to tax savings.

The Attorney General’s Office opined in 2023 that punitive damages are unconstitutional. Huxoll and the Nebraska Insurance Federation said the bill could lead to increased premiums.

Huxoll said “it’s our position” Wayne’s bill is outside the call of the special session. Pressed by McKinney, Huxoll said the Attorney’s General Office hadn’t issued a legal opinion about the issue but said she thinks it is outside the call.

Wayne said that at some point, lawmakers “have to represent the people.”

“To me, it comes down to one simple question: Are we going to help protect kids or not?” Wayne said. “Votes on this will determine that.”