Bill would expand liability in certain sexual abuse cases

The state of Nebraska and its political subdivisions could be held legally liable for claims of child sexual abuse or sexual abuse of individuals with developmental disabilities under a measure discussed by the Judiciary Committee Feb. 12

LB1097, introduced by Sen. Danielle Conrad of Lincoln, would adopt the State and Political Subdivisions Sexual Abuse Liability Act, creating a civil cause of action for minors or individuals with developmental disabilities who experience sexual assault by an employee or someone under the supervision of a political subdivision.

The measure would remove such claims from the Political Subdivisions Tort Claims Act and the State Tort Claims Act, constituting a waiver of sovereign immunity for state agencies and political subdivisions and providing a legal pathway for victims outside the current tort framework.

Additionally, LB1097 would eliminate time limits for claims against individuals and set the statute of limitations for claims against agencies at four years after the abuse or 12 years after the plaintiff’s 21st birthday, whichever is later.

Conrad said the bill is narrowly focused to give one subset of victims a chance to pursue civil remedies.

“Children and individuals with developmental disabilities are some of the most vulnerable people in society,” Conrad said. “And particularly, when [they] are placed under the care, trust, supervision, custody and control of government entities, they deserve the utmost protection.”

Sam Colwell, testifying in support of the bill on behalf of the Nebraska Association of Trial Attorneys, said Nebraska is one of the few states that prevent victims of sexual abuse from suing schools or other political subdivisions for negligence.

Victims in 47 other states can pursue damages from negligent institutions, he said, even though tort claims law varies widely — including differences in jury trials, damage caps, notice requirements and statutes of limitations.

“Despite all of these differences, there is one overwhelming consistency,” Colwell said. “The courthouse doors are not shut for victims of sexual assault.”

Elizabeth Eynon also testified in support of the proposal on behalf of Education Rights Counsel, which she said has handled cases of children who were sexually assaulted by peers or staff in schools, often in poorly supervised or unsecured areas.

Under current Nebraska law, Enyon said, schools cannot be held accountable for safety lapses that may have contributed to abuse, even though children rely on adults and institutions for protection.

“By creating a clear avenue for possible liability, in the very limited circumstance of sexual assault of a child, we can reinforce the standard that protecting students isn’t optional,” she said.

Chuck Wilbrand testified against the measure on behalf of ALICAP, an insurer of Nebraska public school districts. Federal remedies for victims already exist, he said, and removing damage caps could expose local governments to large, potentially unsustainable judgments.

Brandy Johnson, general counsel for the Nebraska Intergovernmental Risk Management Association, which insures 85 of Nebraska’s 93 counties, also testified in opposition. She said LB1097 could shift the financial burden of judgements from criminal perpetrators to taxpayers.

Large judgments, she said, also could divert funds from essential services, raise property taxes or force counties to seek additional state aid.

Representing the Nebraska Attorney General’s Office, Civil Litigation Bureau Chief Jennifer Huxoll also opposed the bill, saying it would erode the protection that sovereign immunity affords to taxpayers.

“Sovereign immunity … is essential to the ongoing operation of our government by limiting potential claims for damages that may be brought against the government, claims that must be paid by our tax dollars,” Huxoll said.

The committee took no immediate action on LB1097.