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Blaser v. County of Madison

Supreme Court of Nebraska

June 6, 2014

LARRY BLASER AND TERRY MCCAW AND PATRICIA MCCAW, HUSBAND AND WIFE, APPELLANTS,
v.
COUNTY OF MADISON, NEBRASKA, A POLITICAL SUBDIVISION, APPELLEE

Page 294

Appeal from the District Court for Madison County: ROBERT B. ENSZ, Judge.

Todd B. Vetter, of Fitzgerald, Vetter & Temple, for appellants.

Vincent Valentino and Brandy Johnson for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., not participating.

OPINION

Page 295

Stephan, J.

In 2008, Larry Blaser and Terry McCaw sustained personal injuries when Blaser drove a vehicle in which McCaw was a passenger into a washed-out area on a vacated county road in Madison County, Nebraska (the County). Blaser, McCaw, and their wives sued Madison County under the Political Subdivisions Tort Claims Act (PSTCA),[1] alleging the County was negligent. After a bench trial, the district court for Madison County found the County had breached its duty to maintain the vacated road and entered judgment against the County. The [288 Neb. 307] County appealed, and on June 6, 2012, in case No. S-11-1048, we dismissed the appeal, without opinion, because of a jurisdictional defect. The defect was corrected (the dismissal of Blaser's wife's claims), and the County filed a second appeal. In the second appeal, we determined the district court erred in finding the County had a duty to maintain the vacated road, and we reversed the judgment and remanded the cause for a new trial.[2] Following remand, the parties stipulated that the matter should be submitted to the district court on the record made at the original trial. The district court then determined that Madison County retained sovereign immunity pursuant to § 13-910(9) and entered judgment in favor of the County. After a motion for new trial was overruled, this timely third appeal was filed. We conclude the district court did not err in determining that the County retained its sovereign immunity and therefore affirm its judgment.

BACKGROUND

Facts and Procedural Background

The facts and procedural background

Page 296

are set forth in full in our prior opinion.[3] We restate the most relevant facts here.

On November 9, 2008, Blaser was driving his 1996 Ford Ranger pickup southbound on 545th Avenue, a vacated road in Madison County, and McCaw was riding as a passenger. While traveling on the vacated road, Blaser drove into a washout, or a large hole in the middle of the road, approximately 12 feet wide and 8 feet deep. As a result of the accident, the pickup truck was damaged, Blaser sustained minor injuries, and McCaw sustained severe injuries. Blaser, McCaw, and their wives initiated this action against the County seeking damages for the injuries resulting from the accident.

According to the trial record, 545th Avenue is a north-south roadway between 845th Road and 846th Road and 846th Road is the county line between Madison County and Pierce County, Nebraska, with Madison County lying to the south. When the [288 Neb. 308] County vacated 545th Avenue in 2004, it qualified the vacation and retained a right-of-way over the vacated road subject to any easements of record.

In April 2005, after the County had vacated the road, road closed signs were placed at the north and south ends of the vacated road. Blaser and McCaw testified that on November 9, 2008, the day of their accident, they did not observe any road closed signs. The deputy who investigated the accident stated that a road closed sign at the north end of the vacated road had been unbolted and laid on the ground next to the upright post and was not visible from the road on the day of the Blaser/ McCaw accident. Gary Drahota, a man who owned land and lived in the area, stated that he did not see a road closed sign at the north end of the vacated portion of the road at the intersection of 545th Avenue and 846th Road on October 27, 2008. Another man, who owns land surrounding the vacated road, testified that he recalled seeing a road closed sign at the north end of the vacated road a few days before the Blaser/ McCaw accident.

Several weeks prior to the Blaser/McCaw accident, another accident occurred involving the same washout on the vacated road. Between October 27 and October 30, 2008, Drahota notified law enforcement that he had been traveling on the vacated road when he found an abandoned vehicle in the washout. On October 30, a deputy sheriff for the County investigated this report and found the abandoned vehicle in the washout. He approached the abandoned vehicle from the south end of the vacated road, traveling north.

Sometime after the County was notified of the abandoned vehicle and before the Blaser/McCaw accident, the County's highway superintendent was instructed to inspect the road closed signs on the vacated road. He testified that while he did inspect the south end of the vacated portion of 545th Avenue, he did not actually inspect the north end of the vacated portion of the road at the intersection of 545th Avenue and 846th Road. Regarding the north portion of the vacated road, the superintendent stated he positioned himself 2 miles north of the county line and looked to the south. He testified [288 Neb. 309] that he could not see any signs from his vantage point of 2 miles away.

In their operative complaint, the Blasers and McCaws alleged that the County was negligent because it failed to " correct the malfunction, destruction, or any unauthorized removal of the Road Closed signed [sic] when it had actual and constructive knowledge and notice of the malfunction, destruction, and or [sic] removal of the

Page 297

sign." In its answer, the County denied many of the allegations of the complaint but admitted that, as part of the investigation by the Madison County sheriff's office, the sheriff's office located a road closed sign that had been knocked over. The record shows that the investigation occurred on November 9, 2008, the day of the accident. The County affirmatively asserted that it was immune from suit under various provisions of the PSTCA and asserted the affirmative defenses of contributory negligence, assumption of the risk, and alternative safe route. One particular defense under the PSTCA provides that a political subdivision retains sovereign immunity from " [a]ny claim arising out of the malfunction, destruction, or unauthorized removal of any traffic or road sign . . ...


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