## Facts

- Victoria Lynn Tolbert Burgess and Tisha Cassandra Tolbert lived in a two-story single-family home leased through the federal Section 8 voucher program administered locally by the Omaha Housing Authority (OHA).
- A residential fire occurred on April 5, 2003, resulting in their deaths.
- The amended complaint alleged the home lacked adequate emergency egress, including a removed front door, a closed-in front porch, and a boarded-shut second-floor exit with removed exterior stairs.
- The complaint alleged both decedents were disabled and that the egress conditions contributed to their inability to escape.
- Plaintiffs sued OHA (and separately the private landlords) asserting OHA had authority and responsibility under Section 8 administration to ensure the unit was safe and sanitary, to inspect for compliance, and to require repairs or relocate tenants.
- The district court dismissed the claims against OHA for failure to state a claim; plaintiffs appealed.

## Issues

1. Whether Section 8 statutes or regulations create a private cause of action allowing tenants (or their representatives) to recover damages from a public housing authority for alleged housing-quality violations.
2. Whether OHA owed plaintiffs a cognizable duty under Nebraska tort law to inspect, ensure code-compliant emergency exits, or otherwise protect tenants from unsafe conditions in a privately owned Section 8 unit.
3. Whether an alleged intervening criminal act causing the fire was a superseding cause that defeated proximate causation as a matter of law at the pleading stage.

## Decision

- The Nebraska Court of Appeals affirmed dismissal of the amended complaint against OHA.
- The court held that Section 8 provisions did not evidence congressional intent to create a tenant-enforceable damages remedy against a public housing authority.
- The court concluded plaintiffs failed to plead a viable Nebraska tort claim because the asserted Section 8 administrative responsibilities did not translate into a tort duty owed by OHA to individual tenants.
- The court also agreed that the complaint did not plead facts showing OHA should have foreseen the specific criminal conduct alleged to have caused the fire, supporting dismissal on proximate-cause grounds.

## Legal Principles

- A private right of action under a federal statutory scheme exists only when legislative intent shows both an intent to benefit the plaintiff class and an intent to create a private remedy; Section 8 housing-quality requirements do not create a tenant damages action against a public housing authority.
- Regulatory or contractual obligations connected to administering a federal program do not, without more, create a state-law tort duty to third parties.
- In negligence, an unforeseeable criminal act by a third party may constitute a superseding cause that breaks proximate causation and defeats liability absent allegations supporting foreseeability and a duty to protect against such conduct.
- A complaint is properly dismissed when the pleaded facts, even if true, do not establish duty and proximate causation sufficient to state a claim for relief.

## Conclusion

The court affirmed dismissal because tenants could not sue OHA for damages based on Section 8 housing-quality provisions, and the pleaded negligence theories failed under Nebraska law for lack of a recognized duty and for inadequate allegations connecting OHA’s conduct to the fire injuries in light of an intervening criminal act.


Tolbert v. Omaha Hous. Auth., 16 Neb. App. 618, 747 N.W.2d 452 (Neb. Ct. App. 2008)