Opinion
No. 39406.
Filed July 5, 1974.
1. Common Law: Torts: Municipal Corporations. The common law rule of governmental immunity has not been completely abrogated in Nebraska. 2. Fraud: Torts: Municipal Corporations: Damages. An action for damages against a political subdivision for misrepresentation and deceit is barred by the Political Subdivisions Tort Claims Act.
Appeal from the District Court for Lancaster County: WILLIAM C. HASTINGS, Judge. Affirmed.
A. James McArthur, for appellant.
Richard R. Wood, Charles D. Humble, Jack G. Wolfe, Alan A. Schroder, and Flavel A. Wright, for appellees.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
This is an action for damages arising out of a conveyance of land by the plaintiff to the City of Lincoln, Nebraska. A demurrer of the city was sustained, and the plaintiff elected to stand on his amended petition. The plaintiff appeals from an order dismissing the action as to the city.
The amended petition alleged the city falsely represented to the plaintiff that it required 6 lots owned by him for the purpose of constructing an arterial street, known as the Northeast Radial, and a paving repair facility; that in fact the city did not intend to construct a paving repair facility upon the land to be obtained from him but intended to locate the proposed paving repair facility on other property; that the city wanted a part of his property for the purpose of exchanging it for other land owned by the Abel Investment Company and the Omaha, Lincoln Beatrice Railway Company; that as a result of the false representations of the city the plaintiff believed the city could acquire his property by eminent domain; and for that reason the plaintiff sold his land to the city, of which 15,930 square feet was to be used for the paving repair facility. The amended petition further alleged the plaintiff would not have sold the property if he had known the city could not acquire it by eminent domain; that the value of the 15,930 square feet to the Abel Investment Company and the Omaha, Lincoln Beatrice Railway Company was $44,444.70 more than the $3,345.30 paid to him by the city; and that he had been, damaged in that amount.
The, amended petition alleged a transaction which had been induced by fraud. The plaintiff did not seek rescission but prayed for damages. Such an action against a city is barred by the Political Subdivisions Tort Claims Act.
The common law rule of governmental immunity has not been completely abrogated in Nebraska. Webber v. Andersen, 187 Neb. 9, 187 N.W.2d 290. The Political Subdivisions Tort Claims Act limits the tort actions which may be brought against political subdivisions. 23-2401, R.R.S. 1943; Webber v. Andersen, supra. It excludes actions for misrepresentation and deceit. 23-2409 (5), R.R.S. 1943. See, also, Jones v. United States, 207 F.2d 563; United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614.
The demurrer was properly sustained. The judgment of the District Court is affirmed.
AFFIRMED.