Reasonable-Person Test for “Body” in Offensive-Contact Battery Limits PSTCA Immunity at Summary Judgment

Introduction

In Scott v. Lancaster County School District 0001, 318 Neb. 670 (Neb. Mar. 28, 2025), the Nebraska Supreme Court addressed whether a public school district could obtain summary judgment on sovereign-immunity grounds under the Political Subdivisions Tort Claims Act (PSTCA) when a student’s injury occurred after a classmate grabbed a “pool noodle” the student was holding during a gym class game of tag. The district argued the negligence claim was barred by the PSTCA’s “intentional torts” exemption because the claim arose out of a battery committed by the classmate. The district court denied summary judgment, and the school district filed an interlocutory appeal.

The Supreme Court affirmed, holding there is a genuine issue of material fact whether the classmate’s contact with the pool noodle constituted offensive contact with the student’s “person” for purposes of battery. Crucially, the Court clarified that—although PSTCA exemption questions are generally legal—whether an object is considered part of a plaintiff’s body in an offensive-contact battery is determined by an objective reasonable-person standard, which can present a triable fact issue. The Court also confirmed that an order denying summary judgment based on an assertion of sovereign immunity is an appealable final order under Neb. Rev. Stat. § 25-1902(1)(d).

Parties: Erin-Ann Scott, on behalf of her minor child E.S. (plaintiff/appellee), versus Lancaster County School District 0001 d/b/a Lincoln Public Schools, the Board of Education of Lincoln, Nebraska, Dr. Steve Joel, Dr. Paul Gausman, Laurel Heidbrink, and Does 1–4 (defendants/appellants).

Summary of the Opinion

Appellate jurisdiction: The Court held it had jurisdiction to hear the interlocutory appeal because § 25-1902(1)(d) makes orders denying summary judgment based on sovereign immunity appealable. Even though the motion itself merely asserted “no genuine issue” language, the supporting brief argued the PSTCA intentional torts exemption; that was sufficient to treat the motion as “based on” sovereign immunity.
PSTCA context: Public school districts are political subdivisions under the PSTCA. If a subdivision proves an exemption applies (e.g., § 13-910(7) for claims arising out of assault or battery), the claim is barred by sovereign immunity and must be dismissed for lack of subject matter jurisdiction.
Battery elements and “extension of the person”: Battery is the intentional infliction of an unconsented injury or unconsented contact. The intent element requires only the intent to cause the contact; it does not require intent to cause the precise injury. Contact can be with objects so intimately connected with the body as to be customarily regarded as part of the person (e.g., clothing, a cane, or something grasped by the hand). The Court relied on Restatement (Second) of Torts §§ 18 & 19.
New clarifying rule and application: The Court expressly held that whether an object is considered part of the plaintiff’s body for an offensive-contact battery is judged by an objective reasonable-person standard. Given the school context—a 10-year-old holding a pool noodle supplied by the teacher for a game—the record presented a genuine dispute on whether the contact would offend a reasonable sense of personal dignity. Therefore, the district failed to conclusively establish a battery as a matter of law, and summary judgment on sovereign-immunity grounds was properly denied.

Analysis

Precedents Cited and Their Influence

Garcia v. City of Omaha, 316 Neb. 817, 7 N.W.3d 188 (2024): Reiterated that sovereign immunity is jurisdictional. This underscores that, if a PSTCA exemption applies, the court lacks subject matter jurisdiction and the claim must be dismissed.
Simpson v. Lincoln Public Schools, 316 Neb. 246, 4 N.W.3d 172 (2024): Clarified the appellate pathway created by § 25-1902(1)(d) for interlocutory appeals from denials of summary judgment based on immunity. Scott relies on Simpson to recognize jurisdiction where the immunity argument is raised in the briefing, even if the motion’s caption is generic.
MacFarlane v. Sarpy County School District 77-0037, 316 Neb. 705, 6 N.W.3d 527 (2024): Confirmed public school districts are political subdivisions for PSTCA purposes, bringing Lincoln Public Schools squarely within the statute.
Joshua M. v. State, 316 Neb. 446, 5 N.W.3d 454 (2024): When a PSTCA exemption applies, dismissal for lack of subject matter jurisdiction is the proper remedy. This frames the high stakes of the exemption issue at summary judgment.
Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022): Defined battery in Nebraska as the intentional infliction of an unconsented injury or unconsented contact, and emphasized that harmful contact intentionally done is the essence of battery. Scott builds on this foundation but focuses on the “object as part of the person” inquiry.
Bergman v. Anderson, 226 Neb. 333, 411 N.W.2d 336 (1987): Clarified that the intent for assault/battery is the intent to cause contact or apprehension; the tortfeasor need not intend the precise injury. Scott follows this low threshold for intent.
Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023): Recited the summary judgment standard, requiring all inferences to favor the non-movant. This standard drives Scott’s holding that factual disputes preclude immunity-based summary judgment.
Restatement (Second) of Torts §§ 18 & 19: The Court quoted comment c to § 18 and the reasonable-person measure of “offensiveness” in § 19, explaining that objects intimately connected to the body may be treated as part of the person and that offensiveness depends on social usages at the time and place.
Out-of-state authority on object-contact battery: The Court noted that grabbing an object from someone’s hand has often supported battery (e.g., Fisher v. Carrousel Motor Hotel, Inc., snatching a plate; Picard v. Barry Pontiac-Buick, Inc., touching a camera; In re B.L., slapping a walkie-talkie; Reynolds v. MacFarlane, taking money), but not invariably (e.g., Helton v. Whitley County Fiscal Court; Workman v. United Fixtures Co.). This mixed authority supports treating the issue as context-dependent and fact-sensitive under a reasonable-person standard.

Legal Reasoning

The school district sought immunity under § 13-910(7), which exempts claims arising out of assault or battery. To prevail at summary judgment, the district had to conclusively establish that the student’s negligence claim arose out of a battery, i.e., that the classmate’s actions constituted an intentional, unconsented contact with the student’s person. No one disputed that the classmate intentionally grabbed and yanked the pool noodle without the student’s consent. The crux was whether contact with the noodle equaled contact with the student’s “person.”

The Court adopted the Restatement’s “extension of the person” concept and, importantly, made explicit that the question is assessed by an objective reasonable-person standard. The offensiveness of a contact—whether it “offends a reasonable sense of personal dignity”—turns on prevailing social usages in the particular time and place. Because this assessment is context-heavy, and because the facts here were unusual (elementary school children, a teacher-supplied pool noodle, and contact occurring during a structured game in P.E.), reasonable factfinders could differ on whether the noodle was so intimately connected to the child’s body at that moment that grabbing it constituted offensive contact with her person.

The student’s affidavit stated she did not subjectively regard the noodle as part of her person and experienced no apprehension of unwanted contact. While the governing standard is objective, these factual details underscore the possibility that a reasonable person in this setting might not perceive grabbing the noodle as an offensive invasion of personal dignity. The Court also emphasized the summary judgment posture: all inferences must favor the nonmoving party (the student), and the political subdivision bears the burden to prove an exemption.

Given the mixed caselaw on object-contact battery and the school-play context, the Court concluded there was a genuine dispute of material fact on whether an offensive-contact battery occurred. Without conclusively establishing a predicate battery, the district could not obtain sovereign immunity at this stage. The Court therefore affirmed the denial of summary judgment, leaving the battery question for the factfinder if the case proceeds.

On appellate procedure, the Court reinforced that § 25-1902(1)(d) authorizes interlocutory review of summary-judgment denials “based on the assertion of sovereign immunity,” and that a motion is so “based” when the accompanying briefing makes the immunity argument, even if the motion’s text is generic.

Impact

Trial posture in PSTCA cases: Political subdivisions cannot assume immunity under § 13-910(7) any time a third party touches an object the plaintiff is holding. They must prove, as a matter of law, that the contact would be deemed offensive contact with the person under an objective reasonable-person standard. Where context permits competing inferences, summary judgment will be denied, and immunity will be decided by the factfinder.
School setting claims: In student-on-student incidents involving sports or classroom implements (balls, bats, rackets, instruments, tools), defendants should anticipate fact disputes on whether the item is “part of the person” in context. Scott makes blanket immunity rulings more difficult at the summary judgment stage in school tort litigation.
Litigation strategy:
- Defendants should build a robust record about the object’s role, social usages, rules of the activity, and the setting, all bearing on whether a reasonable person would view contact as an offensive invasion of personal dignity.
- Plaintiffs should emphasize contextual facts (age of participants, teacher-directed use, nature of the game) that distance the object from intimate bodily association and make offensiveness debatable.
Clarification of standards: By explicitly adopting an objective reasonable-person lens for the “extension of the person” inquiry in offensive-contact battery, the Court creates a clearer analytic framework for trial courts, while acknowledging that outcomes will remain sensitive to context.
Interlocutory appeals: Counsel should recognize that denials of summary judgment grounded in sovereign immunity are appealable. Motions should be supported by briefing that squarely articulates the immunity theory to ensure appealability.
Open issues preserved: The Court did not resolve whether a minor’s capacity to form the requisite intent for battery was at issue here, nor did it decide the discretionary-function exemption (§ 13-910(2)). Future cases may address those questions on fuller records.

Complex Concepts Simplified

Political Subdivisions Tort Claims Act (PSTCA): Nebraska’s statute allowing certain tort suits against political subdivisions (like school districts), but with enumerated exemptions. If an exemption applies, the court lacks jurisdiction to hear the claim.
Intentional torts exemption (§ 13-910(7)): Bars claims “arising out of” assault or battery. This often defeats claims framed as negligence when the underlying harm stems from an assault/battery by a third party—if a battery actually occurred.
Battery—harmful vs. offensive contact:
- Harmful-contact battery involves a touching that causes physical harm.
- Offensive-contact battery involves a touching that would offend a reasonable sense of personal dignity, even if no physical harm results.
“Extension of the person”: Some objects are so closely connected to the body (clothing, a cane, or even items currently grasped) that touching them can count as touching the person. Whether a particular object qualifies depends on social context and the reasonable-person view.
Objective reasonable-person standard: The court asks what an ordinary, reasonable person would think in the same situation—not what this particular plaintiff felt. Here, the question is whether grabbing a school-supplied pool noodle during a P.E. game would be viewed as an offensive invasion of personal dignity.
Summary judgment in immunity cases: To win at summary judgment on immunity, the political subdivision must show there is no genuine factual dispute on the predicate elements (here, the occurrence of a battery). If reasonable minds could differ, the case continues.
Interlocutory appealability (§ 25-1902(1)(d)): Nebraska permits immediate appeals from orders denying summary judgment when those motions are based on sovereign immunity. This allows early appellate review of immunity defenses.

Conclusion

Scott v. Lancaster County School District 0001 establishes an important clarifying rule in Nebraska tort and governmental immunity law: although the applicability of PSTCA exemptions is typically a legal question, whether contact with an object in the plaintiff’s hand counts as contact with the plaintiff’s “person” for offensive-contact battery is judged by an objective reasonable-person standard and can be a jury question. In a school P.E. context where a teacher supplied the implement and student play is structured, reasonable minds could differ on whether grabbing the implement offends personal dignity. Because the political subdivision failed to conclusively establish a predicate battery, the sovereign-immunity defense under § 13-910(7) could not be resolved at summary judgment.

The Court also reinforced that denials of summary judgment based on sovereign immunity are immediately appealable under § 25-1902(1)(d), promoting early clarification of immunity issues while respecting the role of the factfinder on predicate disputes. Looking ahead, Scott will likely result in more PSTCA cases—especially those arising from student interactions and sports-like activities—proceeding beyond summary judgment where the “extension of the person” analysis is context dependent. Practitioners should tailor their records to the reasonable-person, time-and-place inquiry the Court has now placed at the heart of offensive-contact battery in Nebraska.

Key Takeaways

New articulation: Whether an object is part of the plaintiff’s “person” in an offensive-contact battery is an objective reasonable-person question.
Fact sensitivity: Context (age, setting, social usages, purpose of the object) can create triable disputes that defeat immunity-based summary judgment.
Burden on the subdivision: Political subdivisions must conclusively prove the PSTCA exemption applies; otherwise, the court retains jurisdiction to proceed.
Appealability: Orders denying summary judgment on sovereign-immunity grounds are appealable under § 25-1902(1)(d), even if the motion’s caption is generic, so long as the briefing asserts immunity.