Nebraska Supreme Court Holds Discretionary Function Exception Bars Lawsuit Over Prison’s Botched Response to Uprising
The Mother’s Day riot at Tecumseh State Correctional Institution (TSCI) in 2015 ended with two dead and countless injuries to prisoners and staff. When one of the prisoners injured filed a lawsuit that prison officials failed to protect him during the riot and that their response was inadequate, the court dismissed it based on the state’s immunity under the State Tort Claim Act (STCA).
Pointing to the so-called “discretionary function exception” (DFE), the Nebraska Supreme Court, on appeal, took the moment to establish how and when this exception to liability under the STCA applies. Basically, a DFE defense applies when a state employee does or does not do something that is in his discretion to do. First, the court must consider whether the duty to act is a choice for the employee. If it is, then the court determines if the choice is one that the DFE was designed to protect.
In the case of the riots, the court found that the DFE applied because (1) staffing levels of the prison are at the discretion of the administration, and (2) the staff’s response during a riot cannot be set in stone for each prison uprising. There must be some room for discretion, the Court said, affirming dismissal of the STCA lawsuit. See: Wizinsky v. Nebraska, 308 Neb. 778, 957 N.W.2d 466 (2021).