[Copyrighted Material Omitted]
Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge.
Joe Kelly, Lancaster County Attorney, and Richard C. Grabow for appellant.
Jeanelle R. Lust, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., for appellee Norris School District No. 160.
Terry R. Wittler, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., and Vincent M. Powers, of Vincent M. Powers & Associates, for appellee Jeff Hall.
HEAVICAN, C.J., CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., and BISHOP, Judge.
[287 Neb. 971] Cassel, J.
A pickup truck and a schoolbus collided at a rural " blind intersection," where a stop sign facing the truck was missing. The district court determined that both drivers were negligent. But the court also found that the county was liable, reasoning that it would have discovered the sign was missing if it had conducted regular sign
inspections. Because there was no evidence to support that premise, the court was clearly wrong in determining that the county's lack of a sign-inspection policy was a proximate cause of the accident. We reverse the judgment finding the county liable and remand the cause for a reallocation of liability between the driver of the pickup truck and the school district based upon the existing record.
1. Factual Background
On August 24, 2009, a pickup truck operated by Jeff Hall collided with a bus owned by Norris School District No. 160 (Norris) and operated by Ronny Aden. The collision occurred at the intersection of South 25th Street and Gage Road in Lancaster County, Nebraska. South 25th Street and Gage Road are gravel country roads with a speed limit of 50 miles per hour. Neither vehicle was exceeding the speed limit. Hall was proceeding south on South 25th Street, while the bus was eastbound on Gage Road. The bus was on Hall's right. A diagram from an exhibit in evidence illustrates the intersection and the direction of travel of each vehicle.
[287 Neb. 972] The intersection had limited visibility and was " blind" for both drivers. Corn planted near the road obstructed Hall's view to the right and Aden's view to the left. The stop sign for southbound traffic on South 25th Street was missing at the time of the collision. There was no evidence that the County of Lancaster (County) had actual notice of the missing stop sign prior to the accident. Aden, who had driven the same bus route hundreds of times since 2007, had seen a vehicle at the intersection only once or twice a year. He did not believe there was a stop sign at the intersection, but, rather, believed it to be an " open intersection." Hall had not previously traveled on South 25th Street, and he assumed there would be a stop sign for east and west traffic, because he did not have one.
Hall testified that his rate of speed as he approached the intersection was between 45 and 50 miles per hour and that he slowed as he got closer to the intersection
because he always slowed as he approached an intersection on a " county road." He estimated his speed to be 40 miles per hour as he entered the intersection. Aden accelerated as he approached the intersection, but the bus did not increase in speed, because it was traveling up an incline. Aden told an investigating officer that [287 Neb. 973] he was driving 47 to 48 miles per hour. Aden testified that a safe speed for the bus going into the blind intersection would have been 20 to 25 miles per hour.
Ted Sokol, Ph.D., an engineer performing accident reconstruction, concluded that there was not enough time for either driver to react once the vehicles became visible to one another. According to Sokol, Hall entered the intersection first, but the vehicles entered at approximately the same time. Sokol opined that Aden should have been more cautious as he approached or entered the intersection and that Aden could have avoided the accident by not assuming traffic on South 25th Street was going to stop and by approaching at a much lower speed so that he could have stopped before entering the intersection. According to Sokol, the bus' maximum speed would have needed to be about 23 miles per hour in order for Aden to perceive and react in time to stop before getting to the west edge of South 25th Street. Sokol testified that Hall could have stopped without entering the intersection if Hall had slowed to 18 miles per hour.
Benjamin Railsback, a mechanical engineer, concluded that the speed of the vehicles was not a contributing factor in the accident. He testified that due to the sight obstruction created by the corn, neither vehicle was visible to the other at a point in time where either driver had the opportunity to perceive and react in order to avoid the accident. He testified that the vehicles would have entered the intersection within a fraction of a second of one another. Railsback did not have any criticism of Aden's driving, because Aden " acted reasonably and drove reasonably through the intersection."
Hall suffered substantial injuries as a result of the accident. Aden and the children who were being transported in the bus also suffered personal injuries. Additionally, Norris incurred property damage.
2. Procedural Background
Hall sued the County and Norris, alleging that the collision was proximately caused by the negligence of the County and of Aden. Hall alleged that Aden was negligent in failing to yield the right-of-way, operating the schoolbus too fast for [287 Neb. 974] the conditions, failing to keep proper control of the bus, and failing to keep a proper lookout. He alleged that the County was negligent in failing to have a traffic control device in place, failing to maintain the stop sign that had been in place, and " failing to take effective practices to ensure that a traffic control device would be in place." Hall further alleged that the County failed to have in place any type of policy or practice to inspect or determine if a stop sign had been removed from an intersection.
The County's responsive pleading alleged that it was immune from suit. The County alleged that Hall was negligent in several respects and that he was negligent in such a degree as to bar recovery or to proportionately diminish the amount sought as damages. The County further alleged that the negligence of Hall and Aden were efficient intervening causes.
Norris filed an answer, counterclaim, and cross-claim. Norris alleged that Hall was contributorily negligent in a degree equal to or greater than the total negligence alleged against Norris and the County. Norris claimed that Hall was
negligent by failing to yield the right-of-way to Norris' schoolbus, failing to have his vehicle under proper and reasonable control, operating his vehicle at a speed greater than was reasonable under the conditions, and failing to keep a proper lookout. Norris asserted a counterclaim against Hall, alleging that he proximately caused damage and injuries to Norris by virtue of his negligent acts and omissions. Norris' cross-claim against the County alleged that the County was negligent for failing to discover through reasonable inspection that the stop sign was missing at the intersection and that such negligence was a proximate cause of injuries to Aden, injuries to the children on the bus, and property damage incurred by Norris. Norris sought judgment against both Hall and the County in the amount of $157,847.83.
In the County's amended answer to Norris' cross-claim, the County alleged that it was immune from suit. The County further alleged that it did not have actual or constructive notice of the malfunction, destruction, or removal of the stop sign. The joint pretrial conference order did not expressly identify immunity from suit as a legal issue presented by the case.
[287 Neb. 975] 3. District Court's Decision
Following a bench trial, the district court entered judgment in Hall's favor. The court stated that " regardless which driver had the right[-]of[-]way, both drivers were negligent for approaching the intersection at a rate of speed that was too fast for the circumstances." The court found that Aden's negligence was greater than that of Hall. As to Norris' claims, the court found that Aden's negligence was 50 percent and denied Norris' claims for recovery.
The district court also found the County to be negligent. The court determined that the County would have discovered the stop sign was missing had it carried out a reasonable inspection and that the absence of a regular inspection, particularly during the high-risk time of year when crops are mature in late summer and early fall, was not reasonable. The court concluded that Aden's and Hall's conduct was foreseeable. Ultimately, the court found the County liable, stating that " [h]ad the stop sign been in placed [sic] it would have been clearly visible to Hall so that he could have stopped at the intersection and avoided the collision."
The court explicitly determined that the negligence of Norris was 50 percent and that Hall's percentage of negligence was 30 percent. The court also stated that the combined negligence of Norris and the County was 70 percent. Thus, as the County and Hall acknowledge, the court implicitly allocated the County's negligence as 20 percent. The court entered judgment against Norris and the County, jointly and severally, in the amount of $770,000. Additional findings of the district court will be included in the analysis.
The County timely appealed, and Norris filed a crossappeal. We moved the case to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.
III. ASSIGNMENTS OF ERROR
The County assigns that the district court erred in failing to determine that the County maintained its sovereign immunity [287 Neb. 976] for discretionary policy decisions made in ...