Filing an Injury Claim Under the Nebraska State Tort Claims Act

Every state has special rules for lawsuits against the government. In Nebraska, these rules significantly limit the kinds of claims you can bring against government agencies and employees. Nebraska law also creates special procedures for suing the government and sets deadlines for bringing a claim.

In this article we'll give you an overview of how Nebraska's process works, and explain the key rules you need to know if you're thinking of seeking compensation from the state government. We'll also talk about similar rules that apply if you've been harmed by a local government agency.

"Sovereign Immunity" Makes it Difficult to Sue the Government

If you're considering a lawsuit against a Nebraska government agency or employee, it's important to know a little about "sovereign immunity." This doctrine protects the government (at the federal, state, and local levels) from many lawsuits.

The Default Rule is That You Can't Sue the Government

The United States inherited the idea of sovereign immunity from England, where it was applied to the English monarch. The theory was that monarchs were the highest legal authority, and therefore couldn't be taken to court without their consent.

Even though it started as a protection for kings and queens, sovereign immunity is still the default rule in the United States. Private citizens can't sue a government agency (or a government employee) unless they've been granted permission to do so.

Governments use this rule because they're concerned about being sued for performing basic responsibilities like tax collection, passing legislation, and enforcing the law.

State and Federal Laws Sometimes Allow Lawsuits Against the Government

Total sovereign immunity would leave people with no legal options even if they've been unfairly harmed by a government action. To address this problem, federal law and laws in every state create exceptions to government immunity. So, in theory, it's possible to sue the government or a government employee for a tort.

However, even under these laws, governments and their employees are immune from lawsuits in many situations where a private business or individual would be liable. Nebraska law is particularly restrictive when it comes to suing the state or a local government.

Nebraska Law Significantly Restricts Lawsuits Against the Government

The Nebraska State Tort Claims Act controls when people can file lawsuits against the state, its agencies, and its employees. In a typical personal injury lawsuit, the defendant must pay damages to the plaintiff if a court decides that:

• the plaintiff suffered physical injuries or property damage (or they're suing on behalf of someone who was killed), and
• those harms were caused by the defendant's negligence or intentional acts.

Under Nebraska law, though, you can't sue the government just because you were hurt by the negligence or deliberate act of a government agency or employee. The State Tort Claims Act creates several broad protections for the government that don't apply to private citizens and organizations. Unless the kind of claim you want to bring is permitted by the Act. you will not be entitled to seek compensation for your injuries in court. (Neb. Rev. Stat. § 81-8,209 (2024).)

In this section, we'll discuss several of the most important restrictions on lawsuits against the government in Nebraska. (We'll talk later in this article about Nebraska's Political Subdivisions Tort Claims Act, which has similar rules for seeking compensation from a local government.)

Nebraska Bars Many Lawsuits Arising From Routine Government Actions

The Nebraska State Tort Claims Act gives extensive legal protection to government agencies and employees while they're carrying out their duties. For example, state law prohibits lawsuits based on a government agency or employee's exercise of their discretion. So, imagine that a government employee examines an intersection and decides that it's safe without a stop sign. If someone later speeds through the intersection and hits a pedestrian, the victim couldn't sue the government over its employee's decision.

On the other hand, government agencies and employees can be sued for failing to perform a legal obligation. So, imagine that state law required the government to install a stop sign at an intersection. If the agency responsible for installing the sign didn't do it, and someone was hurt as a result, a lawsuit against the agency would be permitted.

In addition to prohibiting lawsuits over exercises of government discretion, Nebraska law also bars claims arising from many specific government functions. For example:

• Taxes. Lawsuits over tax assessment and tax collection are barred.
• Permits and licenses. With some exceptions for automobile and boat titles, you cannot sue over government decisions about issuing, denying, or revoking permits and licenses.
• Road repairs. In general, Nebraska's state and local governments are immune from lawsuits arising from damaged roads. This immunity also prohibits lawsuits over damaged (or missing) traffic signs and signals. To bring this kind of lawsuit, you must be able to show that the government knew about (or should have known about) the dangerous condition, and failed to fix it within a reasonable amount of time.
• Bad driving conditions. Nebraskans can never sue the government over accidents caused by snowy or icy roads.

(Neb. Rev. Stat. § 81-8,219 (2024); Davis v. State, 297 Neb. 955 (Neb. 2017).)

Nebraskans Can't Sue the Government for Intentional Torts

Private individuals can be sued both for negligence and for their intentional acts. But, with very limited exceptions, Nebraska bars intentional tort lawsuits against government agencies and employees. So, for example, you may be allowed to sue the government if:

• you're injured in a car accident caused by a distracted government employee
• you trip in a government building because the maintenance staff failed to properly clean or repair the floor, or
• a government employee accidentally damages your property.

On the other hand, you can almost never sue the government or a government employee for things they do on purpose, even if you'd have a good case against a private individual. So, for example, you cannot file a case alleging:

• defamation
• assault, or
• vandalism.

(Neb. Rev. Stat. § 81-8,219(4) (2024).)

Nebraskans Can't Sue the Government for an Employee's Off-Duty Actions

The State Tort Claims Act only allows lawsuits against the government if the employee who caused the harm was "acting within the scope of his or her office or employment." This means that:

• A government employee who wasn't on the clock can only be sued in their "personal capacity." This means any compensation will come directly from that person, or from their personal insurance.
• A government employee who was on the clock may be liable in their "official capacity." This means the state government would be financially responsible for any compensation owed to the victim.

A similar rule limits your ability to sue the government for the actions of a private company or individual employed as a government contractor. You could still have a valid lawsuit, but it would only be against the private party, not the government.

(Neb. Rev. Stat. § 81-8,210(1)-(4) (2024).)

Nebraskans Could Have Options Under Federal Law

As we've seen, even when a person has clearly been wronged by a government agency or employee, it can be extremely difficult to seek compensation under state law. However, a victim may still be able to seek a remedy by filing a federal civil rights lawsuit. Keep in mind that this kind of lawsuit is generally only a good option when there has been serious government misconduct, as opposed to the kind of carelessness involved in a typical tort claim. In addition, there are important limits on the relief a plaintiff can receive in a federal civil rights lawsuit.

Stopping ongoing harm. If you're dealing with continuing harmful behavior you can try to put a stop to it by going to court. In this kind of lawsuit you'd be seeking so-called "injunctive relief." That means the court would order the government agency or employee to stop their illegal behavior.

Keep in mind that many mistaken or harmful government actions don't rise to the level of a civil rights violation. Just like with a lawsuit under the Nebraska State Tort Claims Act, you can't file a civil rights lawsuit to stop something that the government is legally allowed to do.

Seeking financial compensation. You may also be able to file a civil rights lawsuit seeking monetary damages. But, as the Nebraska supreme court has noted, even in a civil rights lawsuit the government cannot be forced to pay money to a successful plaintiff. Instead, your only option is to sue individual employees in their personal capacities. (As we discussed above, this means any damages must be paid from those employees' personal assets, not by the government.)

(Davis v. State, 297 Neb. 955 (Neb. 2017).)

Making a Claim Under the Nebraska State Tort Claims Act

Even if you have a tort claim against a Nebraska government agency or employee, you can't file a lawsuit right away. Instead, you must first complete a special administrative process run by the Nebraska Department of Administrative Services Office of Risk Management and the State Claims Board.

How to File a Tort Claim

The first step in the process is to file a form with the Office of Risk Management. The office provides instructions for filing a claim on its website, along with the form you must submit. The form must include information like:

• your name and contact information
• when and where the incident occurred
• the details of what happened, and
• how much compensation you're seeking.

You should also include as much documentation as you can to support your description of what happened and your request for compensation. You can mail in your paperwork, submit it in person, or send it via email or fax.

Keep in mind that, even though the claims process isn't a lawsuit, you should treat it just as seriously. Making a successful claim may be your best—and even your only—option for receiving compensation for injuries or financial losses. Depending on the complexity of your claim, and what's at stake, it may be helpful to seek help from an attorney.

How the Claims Process Works

The claims process works differently depending on the amount of compensation you're seeking.

Under $5,000 in compensation. The state Risk Manager will review the claim and other documents you've submitted, and also notify the agency you say is responsible for your damages. Based on their investigation, the Risk Manager will either approve or deny the claim.

If your claim is approved, you'll have to complete additional steps before it's processed for payment. Importantly, you must sign a release in the presence of a notary and return it to the Office of Risk Management. When you sign the release, you agree that the payment you receive is full compensation for all losses related to your claim.

If you disagree with the Risk Manager's decision, you have 60 days to appeal to the State Claims Board.

From $5,000 to $50,000 in compensation (and appeals). Claims for these amounts must be approved or denied by the State Claims Board. In addition, if you disagree with the Risk Manager's decision then the State Claims Board will hear your appeal. The Board holds hearings that claimants can attend if they notify the Office of Risk Management at least a week in advance. A claimant will be notified by mail of the time and day of their hearing, and the hearing schedule is also posted online.

After the hearing, the Board will make a decision and notify the claimant within ten days.

More than $50,000 in compensation. Claims this large can be approved by the Claims Board, but they must then be approved by the Nebraska State Legislature and the governor.

Filing a Tort Lawsuit Against the Government in Nebraska

If you aren't satisfied with the outcome of the claims process, you have the option of filing a lawsuit. Keep in mind though, that the claims process must be over before a lawsuit can begin. There are two ways the claims process can end:

1. The Risk Manager or State Claims Board makes a final decision about a claim.
2. The claim is not resolved within six months of being filed. In these situations, claimants must provide notice in writing that they are withdrawing their claim. They are then free to file a lawsuit.

(Neb. Rev. Stat. § 81-8,213 (2024).)

Procedures for Lawsuits Against the Government

You must file your lawsuit in the county where you were injured. (If you were harmed outside of Nebraska, you must file your lawsuit in Lancaster County.) The procedures for a tort lawsuit against the government in Nebraska are almost identical to the procedures for a typical personal injury lawsuit. The most significant difference is that, in a lawsuit against the government, you don't have the option of a jury trial. Instead, these cases are always heard and decided by a judge.

In addition, in lawsuits under the State Tort Claims Act, you can't sue for the kind of "injunctive relief" we discussed above. In other words, you can't sue because you want a judge to order the government to do something (or stop doing something). You can only sue seeking money to cover your damages.

(Neb. Rev. Stat. § 81-8,214 (2024); Neb. Rev. Stat. § 81-8,215 (2024).)

Government Defenses in Tort Lawsuits

The government and its employees can raise the same kinds of defenses as any defendant in a Nebraska personal injury lawsuit. For example, they can argue that you are partially or wholly responsible for your own injuries, that you have not done enough to prove liability, or that you're overestimating the amount of your damages.

In addition, some defenses are only available to the government and its employees. Many of the same ideas about government immunity we discussed above can be raised in a lawsuit. The judge will dismiss your case if it is barred by the State Tort Claims Act or another law. Employees can also raise the defense of "reasonable reliance on existing law." This defense can be successful even if the employee made a mistake, or was following a bad law that was later overturned. The employee just has to show that they behaved reasonably based on the laws in effect at the time.

(Davis v. State, 297 Neb. 955 (Neb. 2017).)

Nebraska's Deadlines for Tort Claims and Lawsuits Against the Government

There are two deadlines to remember in a claim against the government or a government employee.

The first deadline applies to filing a claim with the Office of Risk Management. Under Nebraska law, you must file a claim within two years of the date of the incident that gave rise to the injury.

The second deadline applies to filing a lawsuit. Deadlines for filing civil lawsuits are set by a state's statutes of limitations. But, if that deadline passes while your claim is still under review, you will get additional time. In that situation, you have six months to file a lawsuit from the date the Risk Manager or State Claims Board mailed you a final decision about your claim. As we mentioned above, you can withdraw a claim if it has not been resolved within six months. If you do so, you must file any lawsuit within six months of that withdrawal.

(Neb. Rev. Stat. § 81-8,227 (2024).)

Tort Claims Against Local Government Agencies and Employees

If your claim is against a local government agency or employee, the rules will be very similar to the state-level rules we've already discussed. That's because the law for these local cases, the Political Subdivisions Tort Claims Act, is patterned after the State Tort Claims Act. For example:

• The same immunity rules that apply to state government agencies and employees also apply at the local level.
• Before filing a lawsuit, you must first file a claim with the local government's clerk or legal department. You may only file a lawsuit once the claims process is finished.
• If you file a lawsuit against a local government or government employee, the case will be heard by a judge, not a jury.

(Neb. Rev. Stat. § 13-901 (2024).)

Get Help With Your Nebraska Government Injury Claim

Any personal injury case can be complicated. But, as we've seen, seeking compensation from a government agency or employee can be particularly challenging. If you think you may have a claim against the government in Nebraska, it may make sense to speak with an attorney. An attorney with experience handling these kinds of cases will be able to help you understand your options and, if necessary, assist you with the claims process and a potential lawsuit.