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In this tort case against a Federal Section 8 Housing Authority, the Nebraska Court of Appeals finds that Federal law preempts state law and bars a private right of action against a public housing authority.
Tolbert v. Omaha Housing Authority, 16 Neb. App. 618 (2008)
Court of Appeals Headnotes
Motions to Dismiss:
1. Rules of the Supreme Court: Pleadings: Appeal and Error. A district court’s grant of a motion to dismiss for failure to state a claim under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003) is reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.
Pleadings:
1. Appeal and Error. Whether a complaint states a cause of action is a question of law, to be reviewed on appeal de novo.
2. Proof: Dismissal and Nonsuit. A motion seeking dismissal of a complaint for failure to state a cause of action should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.
Federal Acts:
1. Public Health and Welfare: Federal law preempts state law and bars a private right of action against a public housing authority.
a. Public Assistance. The Department of Housing and Urban Development "Section 8” subsidy program is established under federal law, and its purpose is to help low-income families obtain decent, safe, and sanitary housing by subsidizing rent payments. The program is administered by a state or local government agency such as a housing authority, and the federal government provides funding to the local agency to provide the subsidy payments. ••• Federal regulations set forth the housing quality standards required by the Department of Housing and Urban Development "Section 8” subsidy program, which regulations consist of certain performance and acceptability requirements for key aspects of housing quality. ••• Under Nebraska law, a Department of Housing and Urban Development "Section 8" subsidy program tenant may not bring an action against a public housing authority for failure to inspect rental properties and enforce the housing quality standards.
i. Real Estate. The Department of Housing and Urban Development “Section 8” subsidy program allows a housing authority to contract with private landowners to make rental properties available for eligible tenants. Landowners are required to meet certain housing quality standards for safe and habitable housing, and a housing authority is required to inspect any property offered for rental under the Section 8 program to determine whether it meets the housing quality standards.
Date Filed and Case No.: April 1, 2008. No. A-06-1065.
Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr1/a06-1065.pdf
Court Appealed From: District Court for Douglas County: W. Russell Bowie III, Judge.
Attorneys for the Appeal: Sheri E. Cotton for Alice Tolbert and Chaz Tolbert, personal representatives of the Estates of Victoria Lynn Tolbert Burgess and Tisha Cassandra Tolbert, et al., appellants. Thomas A. Grennan and Francie C. Riedmann for appellee Omaha Housing Authority.
Judges: Severs, Carlson, and Moore, Judges.
Authored By: Carlson, Judge.
Summary: Alice Tolbert and Chaz Tolbert, individually and as personal representatives of the estates of Victoria Lynn Tolbert Burgess and Tisha Cassandra Tolbert, and John Tolbert, as guardian ad litem on behalf of Rictavianna Tolbert, a minor child (collectively referred to as “the plaintiffs”), filed a petition against the Omaha Housing Authority (OHA). The plaintiffs alleged that Victoria Lynn Tolbert Burgess and Tisha Cassandra Tolbert (Tolbert) resided in a large two-story, single-family dwelling as tenants pursuant to a federal housing subsidy program commonly known as Section 8. OHA is the administrator of Section 8 housing and that the Section 8 program requires property owners who participate in the Section 8 program to provide safe housing. The plaintiffs stated that at the time of a fire in the dwelling where Tolbert and Burgess lived, the first floor had a door at the back of the property, the front of the property had a closed-in porch, and the front door had been removed. Previously, there had also been a door on the second floor, leading to outside stairs from one of the bedrooms, however, that door had been boarded shut and the stairs had been removed. The plaintiffs also alleged that both Tolbert and Burgess were disabled. On April 5, 2003, an arsonist started a fire which blocked the only door leading out of the dwelling. Tolbert and Burgess both died in the fire.
OHA filed Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) motion to dismiss, stating that the plaintiffs’ amended complaint failed to state a claim upon which relief may be granted. The trial court granted OHA's motion to dismiss under rule 12(b)(6) and the plaintiff’s appealed from the order ti the Nebraska Court of Appeals.
Did the trial court err in determining that a federal statute controls a state’s power to protect the health, safety, and welfare of its citizens? The plaintiffs contended that their amended complaint set out facts sufficient to show that OHA's actions in the instant case constituted a reckless disregard for public health or safety under § 13-910(3) and that therefore, they are not barred from bringing a claim against OHA under state law. OHA argued, and the trial court agreed, that federal, not state, law applies because the plaintiffs alleged that OHA had a legal duty to protect Tolbert and Burgess under the federal statutes and regulations governing Section 8 rental properties. In the instant case, the trial court sustained OHA's motion to dismiss the plaintiffs’ complaint under rule 12(b)(6) after concluding that the plaintiffs’ amended complaint “essentially seeks relief from OHA, the public housing authority, for its failure to enforce the Housing Quality Standards.” The court explained, "This type of action is specifically barred by federal regulation. See 24 C.F.R. § 982.406.”
In their amended complaint, the plaintiffs alleged that the act of OHA in permitting the use of the property as rental property under Section 8 and further continuing to permit the property to be used as rental property under Section 8 was a willful reckless disregard of the safety of Tolbert and Burgess and members of the public because OHA failed to inspect the property; failed to ensure that the tenants had adequate emergency exits, especially those tenants with disabilities; failed to require the landlord to make the property safe or to move Tolbert and Burgess to a residence that was safe and sanitary; and failed to take action to ensure Tolbert’s and Burgess’ safety in the event of a fire.
After reviewing these allegations de novo, the Nebraska Court of Appeals concluded that all of these allegations are based on OHA's failure to comply with the housing quality standards regulations under the federal statute creating Section 8 housing. Therefore, the Court said that even if they accepted all of the plaintiffs’ allegations in their complaint as true and draw all reasonable inferences in favor of the plaintiffs, federal law clearly states that the plaintiffs have no private right to bring an action against OHA to recover damages. They held that the federal law regarding Section 8 housing was clearly meant to be overriding and that therefore, federal law preempts any Nebraska law on the matter. “Therefore, under Nebraska law, a Section 8 tenant may not bring an action against a public housing authority for failure to inspect rental properties and enforce the housing quality standards.”
Conclusion: After reviewing the record, the Nebraska Court of Appeals concluded that the trial court did not err in determining that the federal rules governing Section 8 housing bar a private cause of action against a public housing authority. Because of their holding, the Court found find it unnecessary to determine whether the sole cause of the injury to the plaintiffs was an unforeseeable criminal act. AFFIRMED.
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