Larsen v. Sarpy Cty. Sch. Dist. No. 77-0027

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
Tammi Larsen, as natural parent and legal guardian
of Ryan Larsen, a minor child, appellant, v.
Sarpy County School District No. 77-0027, doing
business as Papillion La Vista Community School
District, and Jane Does 1-3, appellees.
___ N.W.3d ___
Filed September 5, 2025. 	No. S-24-384.
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. Motions to Dismiss: Jurisdiction: Rules of the Supreme Court.
When dismissal of a complaint is requested under both Neb. Ct. R.
Pldg. § 6-1112(b)(1) (codified in 2008) for lack of subject matter
jurisdiction and Neb. Ct. R. Pldg. § 6-1112(b)(6) (codified in 2008) for
failure to state a claim, courts must consider § 6-1112(b)(1) grounds
first to assess jurisdiction, and consider § 6-1112(b)(6) grounds only if
the court determines it has subject matter jurisdiction.
4. Immunity: Constitutional Law: Political Subdivisions. The sover-
eign immunity of the State and its political subdivisions is grounded
in Neb. Const. art. V, § 22, which provides: “The state may sue and be
sued, and the Legislature shall provide by law in what manner and in
what courts suits shall be brought.”
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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
5. Immunity: Constitutional Law: Political Subdivisions: Legislature.
Neb. Const. art. V, § 22, is not self-executing, and no suit may be
maintained against the State or its political subdivisions unless the
Legislature, by law, has so provided.
6. Political Subdivisions Tort Claims Act: Legislature: Schools and
School Districts. The Legislature has enacted the Political Subdivisions
Tort Claims Act to govern tort claims against political subdivisions,
and public school districts are political subdivisions for purposes of
the act.
7. 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.
8. Political 	Subdivisions 	Tort 	Claims Act: 	Immunity: 	Waiver:
Legislature. Through the Political Subdivisions Tort Claims Act,
the Legislature has allowed a limited waiver of a political subdivi-
sion’s sovereign immunity with respect to some, but not all, types of
tort claims.
9. Political Subdivisions Tort Claims Act: Immunity: Waiver. The
Political Subdivisions Tort Claims Act expressly exempts certain types
of tort claims from the limited waiver of sovereign immunity. The
exemptions in Neb. Rev. Stat. § 13-910 (Reissue 2022) describe the
types of tort claims for which a political subdivision has not consented
to be sued.
10. 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
matter jurisdiction.
11. Political Subdivisions Tort Claims Act. The purpose of the discre-
tionary function exemption of the Political Subdivisions Tort Claims
Act is to prevent judicial “second-guessing” of legislative and admin-
istrative decisions grounded in social, economic, and political policy
through the medium of an action in tort.
12. ____. The discretionary function exemption of the Political Subdivisions
Tort Claims Act extends only to basic policy decisions made in gov-
ernmental activity, and not to ministerial activities implementing such
policy decisions.
13. ____. It is the nature of the conduct, rather than the status of the
actor, that governs whether the discretionary function exemption of
the Political Subdivisions Tort Claims Act applies in a given case.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
14. ____. A two-part analysis determines whether the discretionary func-
tion exemption of the Political Subdivisions Tort Claims Act applies.
First, the court must consider whether the action is a matter of choice
for the acting political subdivision or employee. Second, if the court
concludes that the challenged conduct involves an element of judg-
ment, it must then determine whether that judgment is of the kind that
the discretionary function exemption was designed to shield. Both parts
of the analysis must be met for the exemption to apply.
15. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss for failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim for relief that is plausible on its
face. In cases where a plaintiff does not or cannot allege specific facts
showing a necessary element, the factual allegations, taken as true, are
nonetheless plausible if they suggest the existence of the element and
raise a reasonable expectation that discovery will reveal evidence of the
element or claim.
16. Actions: Pleadings: Notice. Because Nebraska is a notice pleading
jurisdiction, a party is only required to set forth a short and plain state-
ment of the claim showing that the pleader is entitled to relief; a party
is not required to plead legal theories or to cite appropriate statutes so
long as the pleading gives fair notice of the claims asserted.
17. Actions: Mental Distress. An emotional distress claim is not a
cause of action, but, rather, a separate theory of recovery or element
of damage.
18. Mental Distress: Negligence: Proof. Generally, for a plaintiff in
Nebraska to recover for negligent infliction of emotional distress as a
bystander, there must be evidence establishing (1) a seriously injured
victim as the result of the proven negligence of the defendant, (2) an
intimate familial relationship between the victim and plaintiff, and (3)
emotional distress suffered by the plaintiff that is medically diagnosable
and so severe that no person could be expected to endure it.
19. Evidence: Records: Judicial Notice. The mere taking of judicial
notice does not circumvent the necessity of presenting evidence in a bill
of exceptions.
20. Evidence: Records: Appeal and Error. A bill of exceptions is the only
vehicle for bringing evidence before an appellate court; evidence which
is not made part of the bill of exceptions may not be considered.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Reversed and remanded for further
proceedings.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
Justin W. Pritchett and Michael B. Duffy, of Fraser Stryker,
P.C., L.L.O., and Sean M. Conway, of Chandler | Conway, P.C.,
L.L.O., for appellant.
Charles E. Wilbrand, Robert J. Drust III, Thomas Joseph
Helget, and Anthony M. Budell, of Knudsen, Berkheimer,
Richardson & Endacott, L.L.P., for appellees.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Stacy, J.
In 2021, 11-year-old Ryan Larsen, a child with special
needs, was left unattended and walked out of his public
elementary school. He was never seen again. In 2023, Ryan’s
mother, Tammi Larsen (Larsen), filed this negligence action
against the school district and staff pursuant to the Political
Subdivisions Tort Claims Act (PSTCA), 1 alleging that Ryan’s
disappearance was a result of the defendants’ negligent super-
vision. The defendants moved to dismiss the complaint, assert-
ing that the court lacked subject matter jurisdiction and that
the complaint failed to state a claim upon which relief could
be granted. The court granted the motion and dismissed the
complaint, and Larsen appeals. We reverse the dismissal and
remand the cause for further proceedings.
I. BACKGROUND
Because this appeal is from an order granting a motion
to dismiss the complaint, the factual record is limited to the
well-pled facts alleged in the complaint, which at this stage of
the proceeding we accept as true, drawing all reasonable infer-
ences therefrom in favor of the nonmoving party. 2
1 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2022).
2 See Nieveen v. TAX 106, 317 Neb. 425, 430, 10 N.W.3d 365, 369-70
(2024) (“[w]hen reviewing an order dismissing a complaint, the appellate
court accepts as true all facts which are well pled and the proper and
reasonable inferences of law and fact which may be drawn therefrom, but
not the plaintiff’s conclusion”).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
According to the complaint, Ryan was born in June 2009
and began attending La Vista West Elementary School in
2014. Ryan was diagnosed with autism spectrum disorder,
“Tourette’s disorder,” and “absence seizures.” He had substan-
tially delayed learning, social, and communication skills. He
struggled to tell adults his needs and to express his thoughts.
Ryan was unable to care for himself: he could not regulate
proper eating and drinking, he was unable to identify and
avoid dangerous situations, and he was unable to swim. Ryan
was incapable of making rational choices, and his behavior
was impulsive.
The school district and the staff at La Vista West Elementary
School had firsthand knowledge of Ryan’s disabilities and
were aware of his special needs. They knew that Ryan needed
to be supervised at all times and that he had a documented his-
tory of leaving or attempting to leave school grounds. Because
of his disabilities, Ryan was under an individualized education
plan (IEP) that was regularly updated and modified by a team
of professionals employed by the school district. The IEP was
not attached to Larsen’s complaint, nor were its provisions
described in the complaint.
In the weeks and months before Ryan’s disappearance,
the school district staff was aware of three separate occa-
sions when Ryan walked out of the school building and off
school grounds when he was left alone and unsupervised. This
occurred on January 16, April 28, and May 10, 2021.
On May 17, 2021, school district staff again left Ryan
alone and unsupervised in a classroom. “Jane Does 1-3,” all
school district employees, watched as Ryan walked out of the
school building in the middle of the day, unattended. School
district staff did not attempt to prevent Ryan from leaving the
school grounds and made no immediate attempts to retrieve
him and return him to school.
Ryan has not been seen since he left the school on May 17,
2021. Law enforcement agencies have searched extensively

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
but have not discovered evidence of Ryan’s whereabouts,
although cadaver dogs have alerted to human remains at a lake
in a recreation area near the school. Larsen’s complaint alleges
it is “more likely than not” that Ryan died following his disap-
pearance. Despite search and recovery efforts, Ryan’s body has
not been recovered.
1. Complaint
On November 28, 2023, Larsen filed this PSTCA action in
the district court for Sarpy County both in her individual capac-
ity and as the natural parent and legal guardian of Ryan. The
complaint named as defendants Sarpy County School District
No. 77-0027, doing business as Papillion La Vista Community
School District, and school district employees identified as
“Jane Does 1-3.” For simplicity, this opinion will refer to the
defendants collectively as “the school district.”
In addition to the facts summarized above, the complaint
generally alleged that before Larsen filed suit, she complied
with the claim presentment requirements of the PSTCA, and
that she withdrew the claim after no action had been taken for
more than 6 months. 3 The substance of Larsen’s complaint
was styled as two causes of action: one titled “Negligent
Supervision” and the other titled “Negligent Infliction of
Emotional Distress.”
Regarding the claim of negligent supervision, the complaint
incorporated all the facts summarized above and alleged:
• The school district had a duty to protect and supervise the
children entrusted to its care and custody; 4
• The school district breached that duty, and the applicable
standard of care, by (a) leaving Ryan alone and unsupervised
when it knew of his disability and propensity to wander off
3 See § 13-905.
4 See MacFarlane v. Sarpy Cty. School Dist. 77-0037, 316 Neb. 705, 713,
6 N.W.3d 527, 535 (2024) (recognizing that “schools owe their students a
duty of reasonable care” and that instructors “generally have a legal duty
to supervise students in a nonnegligent manner”).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
when left alone and when it was foreseeable that he would do
so again if left alone and (b) watching as Ryan walked out of
the school unaccompanied and doing nothing;
• Ryan’s disappearance was directly and proximately caused by
the school district’s negligence; and
• As a result of the school district’s negligence, Ryan and Larsen
each suffered physical injury and trauma, mental and emo-
tional distress, and loss of companionship.
Regarding the claim of negligent infliction of emotional
distress, the complaint incorporated all the facts summarized
above and alleged:
• Given the school district’s knowledge of Ryan’s age, disabil-
ity, and history of elopement, it was reckless, outrageous, and
intolerable to leave him alone and to permit him to leave the
school building unattended;
• The negligence of the school district “goes beyond all pos-
sible bounds of decency,” led directly to Ryan’s likely death
or serious physical harm, and caused Larsen to suffer severe
emotional distress for which she “must now be treated”; and
• No reasonable person should be expected “to endure the
trauma of wondering what horrors have befallen” the per-
son’s disabled child, who was knowingly allowed to wander
off alone.
The complaint prayed for general and special damages on
behalf of both Larsen and Ryan, as well as attorney fees
and costs.
2. Motion to Dismiss and Hearing
The school district moved to dismiss the complaint for
lack of subject matter jurisdiction pursuant to Neb. Ct. R.
Pldg. § 6-1112(b)(1) (codified in 2008) (Rule 12(b)(1)),
asserting Larsen’s claims fell within the PSTCA’s due care
exemption in § 13-910(1) and/or the discretionary function
exemption in § 13-910(2). Alternatively, the school district
moved to dismiss the complaint for failure to state a claim

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
pursuant to § 6-1112(b)(6) (Rule 12(b)(6)), asserting that
Larsen’s claim of negligent infliction of emotional distress
failed to state a claim upon which relief could be granted.
No evidence was adduced at the hearing on the motion to
dismiss, but the parties generally agree that the court was
asked to take judicial notice of a Sarpy County probate case
in which Larsen petitioned for a declaration of death based
on Ryan’s disappearance and unexplained absence. 5 Although
the court agreed to take judicial notice of the probate pro-
ceeding, no exhibit relating to any probate proceeding was
identified, marked, received, or otherwise made part of the
appellate record in this case. 6
3. Order of Dismissal
In a written order entered May 15, 2024, the district court
granted the school district’s motion to dismiss in its entirety.
It determined that Larsen’s negligent supervision claim fell
within both the due care exemption in § 13-910(1) and the
discretionary function exemption in § 13-910(2) and conse-
quently concluded the school district had not waived its sover-
eign immunity for that claim under the PSTCA. The court thus
dismissed the negligent supervision claim for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1).
The court also dismissed Larsen’s claim for negligent inflic-
tion of emotion distress. It determined that claim was either
barred by sovereign immunity because it arose out of the neg-
ligent supervision claim or, alternatively, that it failed to state
a claim for relief under Rule 12(b)(6). As necessary, we elabo-
rate on the court’s reasoning later in our analysis.
5 See, generally, Neb. Rev. Stat. § 30-2207 (Reissue 2016) (death presumed
after 5 years of unexplained absence).
6 Compare, e.g., Trausch v. Hagemeier, 313 Neb. 538, 985 N.W.2d 402
(2023) (while court may take judicial notice of matters of public record
without converting motion to dismiss into motion for summary judgment,
documents requested to be judicially noticed must be marked, identified,
and made part of bill of exceptions).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
Based on these determinations, the district court entered
a 	judgment, 	styled 	as 	an 	order, 	that 	dismissed 	Larsen’s
“[c]omplaint and any amendments thereto.” We understand
this language to have effectively dismissed Larsen’s complaint
without leave to amend, and no party suggests otherwise.
Larsen filed this timely appeal, and we granted her petition
to bypass the Nebraska Court of Appeals.
II. ASSIGNMENTS OF ERROR
Larsen assigns, consolidated and restated, that the district
court erred when it dismissed her complaint on the grounds
(1) the tort claims alleged were barred by sovereign immu-
nity under the due care exemption in § 13-910(1), (2) the tort
claims alleged were barred by sovereign immunity under the
discretionary function exemption in § 13-910(2), and (3) the
allegations in the complaint failed to state a claim upon which
relief can be granted.
III. 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. 7
[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
conclusions reached by the district court. 8
IV. ANALYSIS
[3] When dismissal of a complaint is requested under both
Rule 12(b)(1) for lack of subject matter jurisdiction and Rule
12(b)(6) for failure to state a claim, courts should consider
7 Barber v. State, 316 Neb. 398, 4 N.W.3d 844 (2024).
8 See id.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
the Rule 12(b)(1) grounds first and should consider the Rule
12(b)(6) grounds only if the court determines it has subject
matter jurisdiction. 9
1. Dismissals Under Rule 12(b)(1)
Larsen’s first two assignments of error challenge the trial
court’s determination that her tort claims were barred by sov-
ereign immunity under the due care exemption in § 13-910(1)
and/or the discretionary function exemption in § 13-910(2).
Larsen generally contends that the court could not determine,
from the face of the complaint, whether either exemption
applied to her claims.
Before we consider Larsen’s arguments, we review the
principles of sovereign immunity that inform our analysis,
after which we review several cases that provide a useful
framework for analyzing motions to dismiss under Rule
12(b)(1) based on assertions that the claim falls within a
PSTCA exemption.
(a) Sovereign Immunity Principles
[4-6] The sovereign immunity of the State and its politi-
cal subdivisions is grounded in Neb. Const. art. V, § 22,
which provides: “The state may sue and be sued, and the
Legislature shall provide by law in what manner and in what
courts suits shall be brought.” We have long held that this
constitutional provision is not self-executing and that no suit
may be maintained against the State or its political subdivi-
sions unless the Legislature, by law, has so provided. 10 The
Legislature has enacted the PSTCA to govern tort claims
9 See, e.g., Ryan v. State, 317 Neb. 337, 9 N.W.3d 888 (2024) (Stacy, J.,
concurring); Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161, 745
N.W.2d 317 (2008); Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595,
694 N.W.2d 625 (2005).
10 E.g., Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
against political subdivisions, and public school districts are
political subdivisions for purposes of the PSTCA. 11
[7,8] Under the PSTCA, 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 [PSTCA].” 12 In suits brought under the PSTCA, a politi-
cal subdivision is “liable in the same manner and to the
same extent as a private individual under like circumstances,”
except “as otherwise provided in the [PSTCA].” 13 Through
the PSTCA, the Legislature has allowed a limited waiver of
a political subdivision’s sovereign immunity with respect to
some, but not all, types of tort claims. 14
[9,10] Section 13-910 of the PSTCA expressly exempts cer-
tain types of tort claims from the limited waiver of sovereign
immunity. 15 Stated differently, the exemptions in § 13-910
describe the types of tort claims for which a political subdivi-
sion has not consented to be sued. 16 When an exemption under
the PSTCA applies, the political subdivision is immune from
the claim and the proper remedy is to dismiss it for lack of
subject matter jurisdiction. 17
With these principles in mind, we briefly review case law
that illustrates how courts should analyze the applicabil-
ity of PSTCA exemptions when the question of sovereign
immunity is presented in a motion to dismiss the complaint
pursuant to Rule 12(b)(1). We then consider the assignments
of error regarding the trial court’s determination that Larsen’s
11 See MacFarlane, supra note 4.
12 § 13-902. See Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508
(2011).
13 § 13-908.
14 Edwards, supra note 10.
15 Id.
16 Id.
17 Id.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
claims are barred by the PSTCA exemptions under the due
care exemption in § 13-910(1) and the discretionary function
exemption in § 13-910(2).
(b) Analyzing PSTCA Exemptions
on Motions to Dismiss
This court has issued several opinions that provide guid-
ance to trial courts on how to analyze a Rule 12(b)(1) motion
that asserts a tort claim is barred by one of the statutory
exemptions under the PSTCA or the related State Tort Claims
Act (STCA). 18
In the 2024 case MacFarlane v. Sarpy Cty. Sch. Dist.
77-0037, 19 a student sued a school district under the PSTCA
for injuries sustained while pole-vaulting on school property.
The defendant moved to dismiss the complaint, asserting the
claim was barred by sovereign immunity under the recreational
activity exemption in § 13-910(13). The district court agreed
and dismissed the complaint.
On appeal, our analysis focused on the plausibility of the
allegations of the complaint. We explained that, accepting
the allegations as true and drawing all reasonable inferences
therefrom in favor of the plaintiff, “the ultimate question is
whether a plausible path could exist for liability outside of
the recreational activity exemption.” 20 In MacFarlane, we
concluded that based solely on the pleadings, we could not
rule out the possibility that the plaintiff’s claim might fall
outside the scope of the PSTCA exemption. Reasoning that
the applicability of the exemption could not be determined
from the face of the complaint and that a more fully devel-
oped factual record was needed to resolve that issue, we
reversed the district court’s dismissal and remanded the cause
for further proceedings.
18 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2024).
19 MacFarlane, supra note 4.
20 Id. at 721, 6 N.W.3d at 539.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
We applied similar reasoning in Brown v. State, 21 a negli-
gence case filed under the STCA. In that case, the plaintiff
alleged he was injured at a state recreation area when the pic-
nic table where he was sitting was struck by a mower operated
by a state employee. The court granted the State’s motion to
dismiss the complaint for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1), reasoning that the plaintiff’s claim
fell within the STCA’s recreational activity exemption 22 and
therefore was barred by sovereign immunity. The plaintiff
appealed, and we reversed.
We explained in Brown that for the recreational activity
exemption in § 81-8,219(14)(a)(i) to apply, the following ele-
ments must be met: (1) The claim must relate to a recreational
activity on property leased, owned, or controlled by the State;
(2) the claim must result from an inherent risk of that recre-
ational activity; and (3) no fee must have been charged for the
plaintiff to participate in, or be a spectator at, the recreational
activity. 23 Because the complaint did not allege the plaintiff
was engaged in any particular recreational activity when he
was injured, we concluded that the allegations of the com-
plaint and the reasonable inferences therefrom did not allow
the court to determine the applicability of the exemption. We
noted that “the development of additional facts may reveal
that [the plaintiff] was engaged in one or more specific recre-
ational activities while sitting at the picnic table, [but] the face
of his complaint simply does not permit such a conclusion
as a matter of law.” 24 And we explained that unless and until
the specific recreational activity, if any, could be identified,
there was “no principled way to apply the remaining statu-
tory elements to determine whether [the plaintiff’s] tort claim
21 Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020).
22 See § 81-8,219(14).
23 Id.
24 Brown, supra note 21, 305 Neb. at 123, 939 N.W.2d at 362.

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Nebraska Supreme Court Advance Sheets
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LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
is related to that recreational activity and whether his claim
resulted from an inherent risk of that recreational activity.” 25
Although different exemptions are at issue here than were
considered in MacFarlane and Brown, we apply the same ana-
lytical framework to consider whether the applicability of the
exemptions can be determined at this stage of the proceedings.
We consider only the well-pled allegations of the complaint
and the reasonable inferences therefrom, but not the conclu-
sions. We then ask whether, based on those allegations and
reasonable inferences, any plausible path could exist for liabil-
ity outside either the due care exemption in § 13-910(1) or the
discretionary function exemption in § 13-910(2).
In the sections that follow, we consider each exemption
in turn. We ultimately conclude here, as we did in both
MacFarlane and Brown, that the applicability of these exemp-
tions cannot be determined from the face of the complaint and
that a more fully developed factual record is needed to resolve
the school district’s assertion that Larsen’s claims fall within
the scope of such exemptions.
(c) Due Care Exemption
Under the due care exemption in § 13-910(1), the PSTCA
does not apply to “[a]ny claim based upon an act or omission
of an employee of a political subdivision, exercising due care,
in the execution of a statute, ordinance, or officially adopted
resolution, rule, or regulation, whether or not such statute, ordi-
nance, resolution, rule, or regulation is valid.”
Nebraska has two published opinions discussing the due
care exemption under the PSTCA: Reiber v. County of
Gage 26 and Doe v. Omaha Pub. Sch. Dist. 27 Both cases illus-
25 Id.
26 Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019).
27 Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007),
overruled on other grounds Moser v. State, 307 Neb. 18, 948 N.W.2d 194
(2020).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
LARSEN v. SARPY CTY. SCH. DIST. NO. 77-0027
Cite as 319 Neb. 823
trate the type of developed record required for a court to
determine whether a claim is barred by this exemption.
In Doe, 28 the complaint alleged that a school district failed
to protect a student from being sexually assaulted by another
student at school. The school district moved to dismiss for
lack of jurisdiction, asserting it was immune from suit under
several PSTCA exemptions, including the due care exemption
in § 13-910(1). The trial court agreed and dismissed the com-
plaint with prejudice, although it is unclear from the opinion
what statute or regulation the district relied upon to support the
applicability of the exemption. On appeal, we reversed, noting
that the face of the plaintiff’s complaint alleged the school dis-
trict “failed to exercise due care” 29 and that in the “absence of
a factual record, we [could not] determine whether” 30 the due
care exemption applied.
Our most extensive analysis of the due care exemption
occurred in Reiber, where we stated that the language of the
exemption found in § 13-910(1) is “clear and unambiguous” 31
and provides immunity “for actions based upon the acts or
omissions of an employee exercising due care in the execu-
tion of a [statute, ordinance,] rule or regulation.” 32 Reiber
involved a negligence action brought against a county sheriff
by a mother after her son committed suicide while being
held in the county jail. One of the jurisdictional issues
was whether the defendants had sovereign immunity under
§ 13-910(1). The applicability of the exemption was decided
on a fully developed record after a bench trial at which
the relevant jail standards and regulations were identified
and evidence was adduced establishing that jail employees
exercised due care in carrying out those jail standards and
28 Id.
29 Id. at 91, 727 N.W.2d at 458.
30 Id.
31 Reiber, supra note 26, 303 Neb. at 342, 928 N.W.2d at 928.
32 Id. at 341, 928 N.W.2d at 928.

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regulations. Because our de novo review in Reiber showed
that the relevant standards and regulations were part of the
appellate record, as was evidence of the course of conduct
followed by the defendants, we agreed the due care exemp-
tion applied to bar the plaintiff’s claim.
Federal cases interpreting the due care exemption 33 under
the Federal Tort Claims Act (FTCA) 34 are also instructive.
It is generally understood that the due care exemption under
the FTCA is
aimed at ensuring that a statute or regulation’s validity is
not tested through the medium of a damage suit for tort.
. . . In determining whether tort claims are subject to the
due care exception, a two-part inquiry applies, wherein
first, the court determines whether the statute or regula-
tion in question specifically prescribes a course of action
for an officer to follow, and second, if a specific action
is mandated, the court inquires as to whether the officer
exercised due care in following the dictates of that stat-
ute or regulation. 35
Reiber, Doe, and cases interpreting the FTCA illustrate that
determining whether the due care exemption applies necessar-
ily involves (1) identifying the specific statutes, ordinances,
rules, or regulations that prescribe the course of conduct to be
followed and (2) examining the evidence to determine whether
the employee or employees exercised due care in following
the prescribed course of conduct. These cases also illustrate
33 See 28 U.S.C. § 2680(a) (2018) (FTCA does not apply to “[a]ny claim
based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or
not such statute or regulation be valid”).
34 See 28 U.S.C. § 1346(b) (2018).
35 91 C.J.S. United States § 225 at 324 (2024). See J.P. v. U.S., 679 F. Supp.
3d 911 (D. Ariz. 2023) (court must consider whether statute or regulation
at issue specifically prescribes course of action to be followed and, if
it does, whether officer exercised due care in following dictates of that
statute or regulation).

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that, ordinarily, the legal question of whether the due care
exemption applies to a particular claim cannot be decided in
the absence of a developed factual record.
Larsen’s complaint does not contain the factual allega-
tions necessary to determine the applicability of the due care
exemption. The district court relied heavily on the complaint’s
reference to Ryan’s IEP, but that reference did not cite a spe-
cific statute, rule, or regulation that prescribed the conduct
that was to be followed when educating and supervising Ryan.
Indeed, the complaint does not allege that any rule, regulation,
or statute prescribed a course of action the school district was
to follow. Instead, it alleges that the school district had a duty
to exercise reasonable care when supervising Ryan and that it
failed to do so.
Limiting our analysis to the allegations in the complaint
and the reasonable inferences therefrom construed in the light
most favorable to Larsen, we conclude the district court erred
when it found that the due care exemption applied to bar
Larsen’s claims. Instead, our de novo review of the complaint
persuades us that a plausible path for the school district’s
liability may exist outside the due care exemption, 36 and
therefore, determining the applicability of this exemption must
await a more developed factual record.
(d) Discretionary Function Exemption
The discretionary function exemption in § 13-910(2) states
that the PSTCA does not apply to “[a]ny claim based upon
the exercise or performance of or the failure to exercise or
perform a discretionary function or duty on the part of the
political subdivision or an employee of the political subdivi-
sion, whether or not the discretion is abused.” A nearly identi-
cal exemption is codified at § 81-8,219(1) of the STCA. When
an exemption contained in the PSTCA is nearly identical to an
36 See MacFarlane, supra note 4.

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exemption contained in the STCA, cases construing the STCA
exemption are applicable to the analysis. 37
[11-13] The purpose of the discretionary function exemp-
tion is to prevent judicial “second-guessing” of legislative
and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort. 38
The discretionary function exemption extends only to basic
policy decisions made in governmental activity, and not to
ministerial activities implementing such policy decisions. 39 It
is the nature of the conduct, rather than the status of the actor,
that governs whether the discretionary function exemption
applies in a given case. 40
[14] A two-part analysis determines whether the discre-
tionary function exemption applies. 41 First, the court must
consider whether the action is a matter of choice for the act-
ing political subdivision or employee. 42 Second, if the court
concludes that the challenged conduct involves an element
of judgment, it must then determine whether that judgment
is of the kind that the discretionary function exemption was
designed to shield. 43 Both parts of the analysis must be met
for the exemption to apply. 44
Nebraska has ample case law under both the PSTCA and
the STCA addressing this exemption, and at least two such
cases hold that determining whether the exemption applies
based only on the allegations of a complaint is possible only
in the rarest of cases.
37 E.g., Joshua M. v. State, 316 Neb. 446, 5 N.W.3d 454 (2024).
38 Simpson v. Lincoln Public Schools, 316 Neb. 246, 4 N.W.3d 172 (2024).
39 Id.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id.

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In Lawry v. County of Sarpy, 45 landowners brought an action
against the county, alleging that negligence in responding to
a flood destroyed their property. The complaint specifically
alleged that the county properly decided to warn downstream
residents of the flooding but then failed to use reasonable
care when carrying out the warning because it failed to iden-
tify all downstream residents. The district court sustained the
county’s demurrer based solely on the discretionary function
exemption. We reversed this ruling, reasoning that, from the
allegations of the complaint, it was impossible to “determine
whether the alleged negligence of the county in carrying out
the flood warning involved discretionary policy-level deci-
sionmaking or operational-level conduct.” 46 We concluded that
an “adequate record would have to be developed to separate
what decisions qualify as policy from those that may have
been only operational or ministerial.” 47
Similarly, in Doe, we recognized that when the facts are
undisputed, determining whether the discretionary function
exemption applies presents a question of law. 48 But “[b]y
the same token, however, it is often difficult to undertake
such an analysis without a complete factual record.” 49 And
we emphasized that the difficulty is even more pronounced
under notice pleading, which requires only a short and plain
statement of the claim showing that the pleader is entitled to
relief. 50 Doe explained that without evidence “concerning the
policy 	and 	what 	actually 	transpired,” 51 it 	could 	not 	be
45 Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d 605 (1998),
overruled on other grounds, Davis v. State, 297 Neb. 955, 902 N.W.2d 165
(2017).
46 Id. at 199, 575 N.W.2d at 609.
47 Id. at 200, 575 N.W.2d at 610 (emphasis omitted).
48 Doe, supra note 27.
49 Id. at 90, 727 N.W.2d at 457.
50 Id.
51 Id. at 91, 727 N.W.2d at 458.

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determined from the face of the complaint whether the dis-
cretionary function exemption applied.
Here, the district court concluded the discretionary func-
tion exemption applied based on the complaint’s reference to
Ryan’s IEP. It reasoned that “[the school district’s] formation
of the IEP, implementing the IEP, lesson plans, breaks, and the
appropriate supervision for students with IEPs” amounted to
“‘legislative and administrative decisions grounded in social,
economic, and political policy.’” It thus concluded that it
was a “matter of circumstances and choice” for the school
district to leave Ryan unattended in the classroom and that
such supervision decisions were part of the “implementation
of” his IEP. The trial court based this conclusion in part on an
express factual finding that Ryan’s IEP “did not require one-
to-one supervision.”
It is not clear to us how the trial court made any of these
factual findings. The complaint alleged no facts about the con-
tents or requirements of Ryan’s IEP, and the IEP was neither
attached to the complaint nor offered as an exhibit. Moreover,
the complaint did not allege that the school district negli-
gently failed to implement or execute Ryan’s IEP; instead,
it alleged the school district negligently failed to supervise
Ryan, despite knowing that he was a child with significant
disabilities who had a propensity to wander off the school
grounds if left alone.
Limiting our de novo review to the allegations in the com-
plaint and the reasonable inferences therefrom, we conclude a
plausible path for the school district’s liability exists outside
the discretionary function exemption. The district court there-
fore erred in concluding that Larsen’s claim was barred by the
exemption in § 13-910(2). Determining the applicability of the
discretionary function exemption will need to await a more
complete factual record.

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(e) Negligent Infliction of Emotional Distress
The district court concluded that to the extent Larsen’s
negligent infliction of emotional distress claim arose out of
her negligent supervision claim, it too was barred by sover-
eign immunity under the due care exemption and/or the dis-
cretionary function exemption. For reasons we have already
explained, the applicability of those exemptions cannot be
determined from the face of the complaint. The trial court
erred in concluding that Larsen’s claim of negligent infliction
of emotional distress was barred by sovereign immunity.
However, because we are reversing the judgment and
remanding the cause for further proceedings, we will also
consider the trial court’s alternative finding that Larsen’s
complaint failed to state a claim for negligent infliction
of emotional distress and should be dismissed pursuant to
Rule 12(b)(6).
2. Dismissals Under Rule 12(b)(6)
[15,16] To prevail against a motion to dismiss for fail-
ure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim for relief that is plausible
on its face. 52 In cases where a plaintiff does not or cannot
allege specific facts showing a necessary element, the fac-
tual allegations, taken as true, are nonetheless plausible if
they suggest the existence of the element and raise a reason-
able expectation that discovery will reveal evidence of the
element or claim. 53 Because Nebraska is a notice pleading
jurisdiction, we have explained that a party is only required
to set forth a short and plain statement of the claim showing
that the pleader is entitled to relief; a party is not required to
52 Rodriguez v. Catholic Health Initiatives, 297 Neb. 1, 899 N.W.2d 227
(2017).
53 Id.

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plead legal theories or to cite appropriate statutes so long as
the pleading gives fair notice of the claims asserted. 54
[17,18] Although Larsen’s complaint characterizes her claim
for negligent infliction of emotional distress as a separate
cause of action, we have said “an ‘emotional distress claim is
not a cause of action, but, rather, a separate theory of recov-
ery or element of damage.’” 55 Generally, for a plaintiff in
Nebraska to recover for negligent infliction of emotional dis-
tress as a bystander, there must be evidence establishing (1) a
seriously injured victim as the result of the proven negligence
of the defendant, (2) an intimate familial relationship between
the victim and plaintiff, and (3) emotional distress suffered by
the plaintiff that is medically diagnosable and so severe that no
person could be expected to endure it. 56
The district court determined that Larsen’s complaint did
not, and could not, allege sufficient facts to show the first fac-
tor (a seriously injured victim). The court acknowledged that
Larsen’s complaint included allegations that a “‘preponder-
ance of the evidence’” shows Ryan “‘more likely than not’” is
dead. But according to the court, it could not assume the truth
of this allegation because the probate court had entered an
order finding there was not yet clear and convincing evidence
of Ryan’s death.
Larsen challenges the district court’s reliance on the probate
court’s order, arguing it was error for the district court to give
the probate order preclusive effect in this negligence action.
We need not consider the parties’ arguments about issue preclu-
sion, however, because we reverse the judgment of the district
court for another reason.
[19,20] Although the district court purported to take judi-
cial notice of the decision of the probate court, no exhibit
54 See id.
55 Hamilton v. Nestor, 265 Neb. 757, 760, 659 N.W.2d 321, 324 (2003).
56 See, Vosburg v. Cenex-Land O’Lakes Agronomy Co., 245 Neb. 485, 513
N.W.2d 870 (1994); James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985).

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relating to any probate proceeding was identified, marked,
received, or otherwise made part of the appellate record in
this case. This is important, because the mere taking of judi-
cial notice does not circumvent the necessity of presenting
evidence in a bill of exceptions. 57 And a bill of exceptions
is the only vehicle for bringing evidence before an appellate
court; evidence which is not made part of the bill of excep-
tions may not be considered. 58 As such, we see nothing in
the record before us that supports the district court’s find-
ing related to the probate proceeding, nor have the parties
directed us to anything.
And in any event, the district court overlooked the fact that
Larsen’s claim for negligent infliction of emotional distress
was not based solely on an allegation that Ryan is deceased.
The complaint also alleged that Ryan has not been seen
since May 17, 2021, and that if he has not died, he has “suf-
fered severe physical harm.” The complaint alleged Ryan was
unable to care for himself, could not regulate proper eating
and drinking, and was unable to identify and avoid dangerous
situations. It also alleged he could not swim and was incapable
of making rational choices. Confining our analysis to the alle-
gations in the complaint and the reasonable inferences there-
from construed in the light most favorable to Larsen, Larsen
has alleged sufficient facts to state a plausible claim that Ryan
suffered a serious injury.
In its brief, the school district argues the complaint also
fails to allege sufficient facts that Larsen suffered emotional
distress that was medically diagnosable and so severe no rea-
sonable person should be expected to endure it. It is not clear
from the record whether this argument was raised before the
district court, and we question whether the issue has been
57 Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020).
58 In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).

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preserved for appellate review. 59 But even assuming it has
been preserved, it is without merit.
The complaint alleges that Larsen “suffers from and now
must be treated for severe emotional trauma and distress,” and
further alleges no reasonable person should be “expected to
endure the trauma of wondering what horrors have befallen
[the person’s] disabled child.” Accepting these allegations as
true, the reasonable inferences therefrom are sufficient to state
a plausible claim that Larsen suffered emotional distress that
was medically diagnosable and so severe no reasonable person
should be expected to endure it.
V. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court and remand the cause for further proceedings
consistent with this opinion.
Reversed and remanded
for further proceedings.
59 See, e.g., Saylor v. State, 315 Neb. 285, 995 N.W.2d 192 (2023) (declaring
that when issue is raised for first time on appeal, it will be disregarded
because lower court cannot commit error related to issue never submitted
to it).