The longstanding rule is that to state a cause of action for negligence, one must plead facts from which it can be inferred that the defendant owed a legal duty to protect the plaintiff from injury, that the defendant failed to discharge that duty, and that damage proximately resulted from that failure. See, First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988). . . . Widga v. Sandell, 236 Neb. 798, 801 464 N.W.2d 155, 158 (1991).
First National instituted its suit under the provisions of the State Tort Claims Act, Neb. Rev. Stat. ยง 81-8,209 et seq. (Reissue 1987). In First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988) (First Nat. Bank of Omaha I), this court affirmed the sustainment of the State's demurrer, but reversed the order of dismissal, writing that "it is reasonably possible that [First National] may be able to state a cause of action in support of its theory of recovery." Id. at 268, 430 N.W.2d at 900.
However, statutes authorizing suits against the state are to be strictly construed because such statutes are in derogation of the state's sovereign immunity. Riley v. State, 244 Neb. 250, 506 N.W.2d 45 (1993); Concerned Citizens, supra; First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988); Wiseman v. Keller, 218 Neb. 717, 358 N.W.2d 768 (1984); Frye v. Sibbitt, 145 Neb. 600, 17 N.W.2d 617 (1945). Waiver of sovereign immunity will only be found where stated "`"by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.
We limit our analysis to whether Hotline negligently failed to warn Schmidt that not all electric lines would be located by OPPD. For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from such undischarged duty. First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988). Therefore, for Hotline to be liable to Schmidt, there first must be a legal duty running from Hotline to Schmidt.
The longstanding rule is that to state a cause of action for negligence, one must plead facts from which it can be inferred that the defendant owed a legal duty to protect the plaintiff from injury, that the defendant failed to discharge that duty, and that damage proximately resulted from that failure. See, First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988); Topil v. Hub Hall Co., 230 Neb. 151, 430 N.W.2d 306 (1988); Ring v. Kruse, 158 Neb. 1, 62 N.W.2d 279 (1954). The duty of a possessor of land, insofar as it pertains to children of tender years, does not depend upon whether the child is an invitee, licensee, or trespasser.
Ravenna Bank v. Custom Unlimited, 223 Neb. 540, 544, 391 N.W.2d 557, 560 (1986). Accord First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988). We have also said that in a general sense, a cause of action is the claim or subject matter upon which suit may be maintained.
"A cause of action is judicial protection of one's recognized right or interest, when another, owing a corresponding duty not to invade or violate such right or interest, has caused a breach of that duty." Sorensen v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180, 193, 376 N.W.2d 539, 548 (1985); First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988); Ravenna Bank v. Custom Unlimited, 223 Neb. 540, 391 N.W.2d 557 (1986); Suhr v. City of Scribner, 207 Neb. 24, 295 N.W.2d 302 (1980). In reference to a petition, a cause of action means a statement of the subject matter on which a plaintiff claims a right to a remedy.
A general demurrer tests substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded. First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988). When ruling on a demurrer, a court is required to accept the truth of facts well pled and factual and legal inferences which may reasonably be deduced from such facts, but the court does not accept the legal or factual conclusions of the pleader.
Ravenna Bank v. Custom Unlimited, 223 Neb. 540, 544, 391 N.W.2d 557, 560 (1986). Accord First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988). We have also said that in a general sense, a cause of action is the claim or subject matter upon which suit may be maintained.
A petition should not leave uncertain the theory on which the plaintiff chooses to proceed, Hutmacher v. City of Mead, ante p. 78, 430 N.W.2d 276 (1988), but should state in logical and legal form the facts which constitute the cause of action, define the issues to which defendant must respond at trial, and inform the court of the real matter in dispute. First Nat. Bank of Omaha v. State, ante p. 259, 430 N.W.2d 893 (1988). Nelson did not allege in his petitions that the truck or title was obtained by fraud, theft, misrepresentation, or breach of contract, and a judgment based on any of those theories would not be supported by the pleadings.