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Abstract

Periodically the public reads of the injury of a citizen other than a state employee at the hands of a former mental patient who either escaped because of inadequate guarding or was released from a state or federal institution because of an improper release-diagnosis. The public assumes that the injured party will be reimbursed, but who will bear the burden of reimbursement? Confinement often leaves the patient judgment proof; the employee whose negligence allowed the escape is frequently judgment proof; the employee who negligently certified the release of an unrehabilitated patient is clothed with immunity from suit on his release-discretion; and in a vast majority of jurisdictions the courts are closed to tort actions against the sovereign.

Realizing the inequities of the above situation, Nebraska has provided for a legislative tort claims board. In addition, bills to establish state liability in situations where the doctrine of respondeat superior would make a private employer liable for the torts of his employees have been introduced into the last two sessions of the Nebraska legislature.

Both bills were defeated, but opposition was to the procedure and not the principle; and in light of the national trend, the eventual passage of a Nebraska tort liability act seems quite probable. Therefore, it is hoped that this note will provide the following: (1) an analysis of problems concerning mental hospitals, which have been experienced by other jurisdictions under their tort claims acts; acts which will serve as a pattern for legislators to follow in drafting Nebraska’s tort immunity waiver, (2) a guide for Nebraska courts which will be called upon to interpret such an immunity waiver, and (3) a guide for practitioners before and members of the present Nebraska Sundry Claims Board.

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