Roebuck v. North Platte Pub. Sch. Dist.

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
Barbara Roebuck, individually and as the parent
and next friend of Jeremiah Roebuck, a minor
child, appellant, v. North Platte Public
School District, a political subdivision
of the State of Nebraska, appellee.
___ N.W.3d ___
Filed March 3, 2026. 	No. A-25-308.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss is reviewed de novo, accepting the allega-
tions in the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.
2. Political Subdivisions Tort Claims Act: Appeal and Error. Whether
the allegations in a complaint constitute a cause of action under the
Political Subdivisions Tort Claims Act, and whether the allegations
set forth claims which are precluded by an exemption under the act,
present questions of law for which an appellate court has a duty to
reach its conclusions independent of the conclusions reached by the
district court.
3. Political Subdivisions Tort Claims Act: Schools and School Districts.
The Political Subdivisions Tort Claims Act governs tort claims against
political subdivisions, and public school districts are political subdivi-
sions for purposes of the act.
4. Political Subdivisions Tort Claims Act: Liability. Under the Political
Subdivisions Tort Claims Act, a political subdivision has no liability for
the torts of its officers, agents, or employees, except to the extent, and
only to the extent, provided by the act.
5. Political Subdivisions Tort Claims Act: Immunity: Dismissal and
Nonsuit. When an exemption under the Political Subdivisions Tort
Claims Act applies, the political subdivision is immune from the
claim and the proper remedy is to dismiss it for lack of subject mat-
ter jurisdiction.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:41 AM CDT

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
6. Political Subdivisions Tort Claims Act: Assault: Battery: Words
and Phrases. A broad definition of the phrase “arising out of an assault
or battery” under the Political Subdivision Tort Claims Act is con-
sistent with the plain language of the phrase and its meaning should
not change depending on the status of the actor as governmental ver-
sus nongovernmental.
7. Courts: Immunity: Waiver. The judiciary does not have the power to
waive sovereign immunity.
8. Political Subdivisions Tort Claims Act: Assault: Battery. In deter-
mining whether a claim arises out of an assault under the Political
Subdivisions Tort Claims Act, the question is whether the injury the
plaintiff seeks to recover for stems from, arises out of, is inextricably
linked to, and would not exist without an underlying assault or battery.
Appeal from the District Court for Lincoln County: Richard
A. Birch and Cindy R. Volkmer, Judges. Affirmed.
James R. Korth, of Reynolds, Korth & Samuelson, P.C.,
L.L.O., for appellant.
Charles E. Wilbrand, Robert J. Drust III, and Anthony
M. Budell, of Knudsen, Berkheimer, Richardson & Endacott,
L.L.P., for appellee.
Riedmann, Chief Judge, and Pirtle and Freeman, Judges.
Riedmann, Chief Judge.
INTRODUCTION
In 2017, Jeremiah Roebuck (Jeremiah), then 12 years old,
was physically assaulted by another classmate at the mid-
dle school they both attended. As relevant to this appeal,
Barbara Roebuck (Roebuck), individually and as parent and
next friend of Jeremiah, sued the North Platte Public School
District (the School District) under the Political Subdivisions
Tort Claims Act (PSTCA), see Neb. Rev. Stat. §§ 13-901 to
13-928 (Reissue 2022), alleging the School District was negli-
gent in failing to protect Jeremiah, in failing to provide timely
medical treatment, and in failing to timely notify Roebuck of
the assault. The district court for Lincoln County granted the

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
School District’s motion to dismiss on the grounds of sover-
eign immunity. We affirm.
BACKGROUND
Jeremiah was in seventh grade when, in a hallway at his
middle school, a classmate “repeatedly slammed [Jeremiah’s]
head against a metal locker.” As a result of the assault,
Jeremiah sustained a traumatic brain injury. After comply-
ing with the presuit notice requirements under the PSTCA,
Roebuck filed a negligence action against the assailant, his
parents, and the School District. In an amended complaint,
Roebuck asserted that the School District knew the assailant
was violent but left the students unsupervised. She further
alleged that after the assault, the School District sent Jeremiah
back to class and failed to notify her of the assault until
2 weeks later, although she learned of the assault later that
day. As a result of this negligence, Roebuck sought damages
for Jeremiah’s physical injuries and for recovery of associated
medical costs.
The School District filed a motion to dismiss or, in the alter-
native, a motion for summary judgment, asserting that the
court lacked subject matter jurisdiction and that the amended
complaint failed to state a cause of action. Specifically, the
School District alleged that Roebuck’s claim arose out of an
incident of assault and battery, which is barred by § 13-910(7).
Following a telephonic hearing, the district court granted the
School District’s motion.
In its analysis of the motion to dismiss, the district court
relied upon Moser v. State, 307 Neb. 18, 948 N.W.2d 194
(2020), an opinion released 2 months prior to the hearing on
the motion to dismiss. It determined that the “Supreme Court’s
holding in Moser is broadly stated, applicable to this case,
and controls the outcome of this case.” It rejected Roebuck’s
attempt to distinguish the School District’s liability for preas-
sault negligence from its liability for postassault negligence,
reasoning that although Moser involved allegations only of

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
preassault negligence, the plain language of Moser applies to
any claim that arises out of an assault, regardless of whether
the alleged negligence occurred prior to or after the assault.
And because Roebuck’s claim arose out of an assault, the
School District was immune from liability. Consequently, it
dismissed the School District from the lawsuit.
Following 	a 	stipulated 	dismissal 	with 	prejudice 	of 	the
remaining defendants, Roebuck appealed the district court’s
order granting the School District’s motion to dismiss.
ASSIGNMENTS OF ERROR
Roebuck assigns the district court erred in (1) sustaining the
School District’s “Motion for Default Judgment,” (2) finding
that “§13-901(7)” barred her claims, and (3) finding that her
claim that the School District engaged in negligent acts after
the assault arose out of the assault and was therefore barred.
STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss is reviewed
de novo, accepting the allegations in the complaint as true and
drawing all reasonable inferences in favor of the nonmoving
party. Larsen v. Sarpy Cty. Sch. Dist. No. 77-0027, 319 Neb.
823, 25 N.W.3d 185 (2025).
[2] Whether the allegations in a complaint constitute a cause
of action under the PSTCA, and whether the allegations set
forth claims which are precluded by an exemption under the
PSTCA, present questions of law for which an appellate court
has a duty to reach its conclusions independent of the conclu-
sions reached by the district court. Larsen, supra.
ANALYSIS
Although Roebuck assigns three errors, they can be con-
solidated as follows: The district court erred in granting the
School District’s motion to dismiss because under prior case
law, § 13-910(7) did not preclude a negligence claim for
failure to prevent an assault, nor does § 13-910(7) preclude
postassault claims based on negligence. (We note Roebuck

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
erroneously identifies the motion to dismiss as a motion for
default judgment and transposes the appropriate statute—errors
we disregard in our analysis.) We find no error in the dismissal
of Roebuck’s complaint.
[3-5] The PSTCA governs tort claims against political sub-
divisions, and public school districts are political subdivisions
for purposes of the PSTCA. See Larsen, supra. Under the
PSTCA, a political subdivision has no liability for the torts
of its agents or employees, except as provided in the PSTCA.
See Larsen, supra. Section 13-910 exempts certain types of
tort claims from the limited waiver of sovereign immunity.
When an exemption under the PSTCA applies, the political
subdivision is immune from the claim and the proper rem-
edy is to dismiss it for lack of subject matter jurisdiction.
Larsen, supra.
Section 13-910(7) identifies claims “arising out of assault
[or] battery” as types of tort claims for which a political sub-
division has not consented to be sued. The Nebraska Supreme
Court has addressed the phrase “arising out of an assault or
battery” in the context of both the PSTCA and the State Tort
Claims Act (STCA). See, e.g., Britton v. City of Crawford,
282 Neb. 374, 803 N.W.2d 508 (2011) (in context of PSTCA);
Johnson v. State, 270 Neb 316, 700 N.W.2d 620 (2005) (in
context of STCA). It determined that the phrase “arising out
of an assault or battery” is broader than the phrase “for assault
or battery” and thus includes claims that sound in negligence
but stem from an assault or battery. See id.
[6] In Moser v. State, 307 Neb. 18, 948 N.W.2d 194
(2020), the Supreme Court synthesized the numerous cases
in which it had addressed the intentional tort exemption in
either the PSTCA or the STCA. It observed that its “case law
on the assault and battery exception to this point has gener-
ally found immunity in cases where the actor committing the
assault or battery was an employee or agent of the State, but
not where the actor was a nongovernmental actor.” Moser,
307 Neb. at 25, 948 N.W.2d at 200. It determined, however,

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
that a broad definition of the phrase “arising out of an assault
or battery” was consistent with the plain language of the
phrase and concluded that its meaning should not change
depending on the status of the actor as governmental versus
nongovernmental. Moser, supra. Consequently, it overruled
its decision in Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79,
727 N.W.2d 447 (2007).
In Doe, a student sued a school district, alleging she was
sexually assaulted by a fellow student during school hours
and while on school property. She alleged the school district
was negligent in breaching its duty to take reasonable steps to
prevent foreseeable violence from occurring on its premises.
Id. The Supreme Court held that the school district was not
immune from liability because the claim did not arise from
an assault, but, rather, from an alleged negligent failure to
protect the student.
The Moser court found that Doe was an outlier, that it was
inconsistent with other cases in which the court had applied
the “arising out of” language, and that it did not comply with
the court’s obligation to strictly construe the State’s waiver of
immunity. The court then proceeded to address whether the
“arising out of” language provided the State with immunity
under the specific allegations of the complaint before it. See
Moser, supra. Those allegations included that the State was
negligent in “‘double bunking’” two inmates, one of whom
was ultimately strangled by the other. Id. at 46, 948 N.W.2d
at 212. The court concluded that because the plaintiff in
Moser alleged in her complaint that the decedent’s cellmate
“assaulted” the decedent, and a reading of the complaint
confirmed that all allegations, including the negligence claim
of the decision to double bunk the inmates, flowed from the
assault, the State was immune from liability. Moser, 307 Neb.
at 43, 948 N.W.2d at 210.
Applying 	the 	above 	framework 	to 	the 	allegations 	of
Roebuck’s amended complaint, we reach the same result.
Roebuck asserted that Jeremiah “was physically assaulted”

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Nebraska Court of Appeals Advance Sheets
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ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
by another student while on school property. She alleged the
School District was negligent in failing to properly supervise
the students and in failing to timely notify her of the assault,
resulting in delayed medical treatment. All these acts “aris[e]
out of” the initial assault; therefore, the School District is
immune from liability under § 13-910(7).
Roebuck argues that the district court erred in applying
Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020), because
it was released after she filed her amended complaint, and she
was relying on prior precedent to support her claim. But in
overruling Doe, supra, the Supreme Court recognized it was
an outlier and inconsistent with other cases interpreting the
same phrase. Moser did not establish a new principle of law;
rather, it corrected inconsistent application of the phrase “aris-
ing out of assault or battery.” This result was foreshadowed
by the concurrence in Rutledge v. City of Kimball, 304 Neb.
593, 604, 935 N.W.2d 746, 754 (2019) (Papik, J., concurring)
(suggesting “[b]efore we rely on Doe again, however, I believe
we should consider whether it is consistent with our general
approach and specific decision in this area”).
[7] The Moser court’s interpretation of the phrase is con-
sistent with the well-established practice of applying strict
construction legal principles of the PSTCA exceptions to sov-
ereign immunity. Moreover, the judiciary does not have the
power to waive sovereign immunity. Edwards v. Douglas
County, 308 Neb. 259, 953 N.W.2d 744 (2021). Because
Moser properly construed the intentional tort exemption, we
find no error in its application to the facts of this case.
Roebuck also asserts that her claims of postassault negli-
gence in failing to timely notify her of the assault and pro-
vide medical treatment do not arise out of the assault. She
argues that the dismissal of these claims “over-applies the
legal principle espoused in Moser.” Brief for appellant at 6.
We disagree.
Although Moser involved preassault negligence claims, its
language is broad. In overruling Doe, the Moser court cited

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Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
the basis upon which Doe was decided—that the claim was
not based upon the assault itself, but, rather, upon a breach of
a duty that occurred before the assault occurred. It determined
that its interpretation in Doe was inconsistent with prior and
subsequent case law setting forth a broad definition of the
phrase “arising out of an assault or battery.” It explained that
“if a claim would not exist without an assault or battery, it
arises out of that battery and is more consistent with our other
case law on this issue.” Moser, 307 Neb. at 29, 948 N.W.2d
at 202.
Regardless of whether the alleged negligence occurred
before or after the assault, if the claim would not exist without
the assault, it arises out of it. As recognized in Britton v. City
of Crawford, 282 Neb. 374, 386, 803 N.W.2d 508, 518 (2011),
“[e]ven if it is possible that negligence was a contributing fac-
tor to [the victim’s injury], the alleged negligence was inextri-
cably linked to a battery. [The plaintiff’s] suit is thus barred
by the PSTCA.”
[8] Here, Roebuck’s amended complaint seeks damages
related to Jeremiah’s traumatic brain injury resulting from
the assault. In determining whether a claim arises out of an
assault under the PSTCA, the “question is whether the injury
the plaintiff seeks to recover for stems from, arises out of, is
inextricably linked to, and would not exist without an under-
lying assault or battery.” Dion v. City of Omaha, 311 Neb.
522, 545-46, 973 N.W.2d 666, 684 (2022). Clearly, the answer
here is that it does. Therefore, we find Moser, supra, properly
applies to Roebuck’s postassault claims.
Application of Moser to claims of postassault negligence is
also consistent with subsequent case law. In Edwards, supra,
a claim was brought against the county, alleging it was neg-
ligent in handling emergency calls to the 911 emergency dis-
patch service during a hostage situation. The victim alleged
that because of the county’s negligence, emergency personnel
did not arrive in time to prevent or stop the sexual assault.
The Supreme Court determined that the county was immune

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ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
from prosecution under the intentional tort exemption of the
PSTCA. It explained that
with the exception of Doe, our cases have construed
the intentional tort exemption to give it the full breadth
demanded by its plain text and our canons of construc-
tion. We have said the exemption applies whenever an
assault “is essential to the claim,” and it bars claims
against the government which “sound in negligence but
stem from [an assault or] battery.” We have also said
the exemption encompasses claims that “would not exist
without an assault or battery,” and claims which are
“‘inextricably linked to [an assault or] battery.’” All of
these articulations speak to the same point: when a tort
claim against the government seeks to recover damages
for personal injury or death stemming from an assault,
the claim necessarily “arises out of assault” and is barred
by the intentional tort exemption under the PSTCA. The
plain language of the exemption and our principles of
strict construction require this result no matter how the
tort claim has been framed and regardless of the assail-
ant’s employment status.
Edwards v. Douglas County, 308 Neb. 259, 277-78, 953 N.W.2d
744, 756 (2021).
Roebuck filed a tort claim against the School District in
which she sought to recover damages for personal injury
Jeremiah sustained in the assault; hence, the claim necessar-
ily arises from the assault and is barred by the intentional
tort exemption under the PSTCA. Although couched in terms
of negligence in failing to timely notify her and seek medi-
cal treatment, this type of semantic recasting of events has
consistently been rejected by our Supreme Court. See, e.g.,
Edwards, supra; Britton, supra. “Because the Legislature has
broadly exempted from the PSTCA ‘[a]ny claim arising out of
assault,’ it is immaterial whether [the plaintiff] has alleged the
assault occurred because the government negligently failed to
prevent it or because the government negligently delayed in

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ROEBUCK v. NORTH PLATTE PUB. SCH. DIST.
Cite as 34 Neb. App. 116
responding to it.” Edwards, 308 Neb. at 279, 953 N.W.2d
at 757.
Roebuck’s 	claim 	against 	the 	School 	District, 	although
couched in terms of negligence, arose out of the assault against
Jeremiah. Consequently, it is barred by the intentional acts
exemption of the PSTCA. The district court did not err in
granting the School District’s motion to dismiss.
CONCLUSION
For the foregoing reasons, we determine that the School
District is immune from liability. Accordingly, we affirm the
order of the district court dismissing Roebuck’s amended
complaint.
Affirmed.