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When a Plaintiff Early Withdraws a Cause of Action Under the PSTCA Can She Still Sue?

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In Hedglin v. Esch, No. A-17-039, (25 Neb. App. 306) the Court of Appeals of Nebraska looked at this issue.

In May of 2016, Cassandra Hedglin (“Hedglin”) made a claim against the City of Hastings, Nebraska (“City”) for the personal injury, mental anguish, and humiliation she suffered due to the actions of Jerry Esch (“Esch”), who was a police officer for the City. Her claim was filed under the Political Subdivisions Tort Claims Act (“PSTCA”). The lower court granted motions for summary judgment in favor of the defendants. Hedglin appealed.

Under the PSTCA, a claimant must file a tort claim with the governing body of the political subdivision before filing suit. In her first appeal, Hedglin claimed that PSTCA did not apply. The Court says it is undisputed that the City is a political subdivision of the State of Nebraska and that at all relevant times, Esch was an employee of the City and acting in the scope of his employment. The PSTCA reflects a limited waiver of governmental immunity and prescribes the procedure for maintenance of a suit against a political subdivision.

And, in the instant case, the Court notes that the notice of her claim Hedglin provided to the City specifies that she is making a claim pursuant to the PSTCA, thereby recognizing that the PSTCA governs her claim.

In the present case, it is undisputed that Hedglin filed her claim with the City on May 25, 2016, and the City had not made a final disposition when she filed the complaint in district court on June 9. She therefore prematurely withdrew her claim and failed to satisfy a condition precedent to commencement of a lawsuit. As a result, her complaint fails to state a claim upon which relief can be granted, and therefore, the district court did not err in granting the motion for summary judgment.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado

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