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McGauley v. Washington County

Supreme Court of Nebraska

July 7, 2017

DAWN MCGAULEY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES E. MCGAULEY, DECEASED, APPELLANT,
v.
WASHINGTON COUNTY, A CORPORATION AND POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, AND MARTIN MARIETTA MATERIALS, INC., APPELLEES.

          1. Political Subdivisions Tort Claims Act: Appeal and Error. A district court's findings of fact in a proceeding under the Political Subdivisions Tort Claims Act will not be set aside unless such findings are clearly erroneous.

         2. Administrative Law: Statutes: Appeal and Error. To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

         3. Political Subdivisions Tort Claims Act: Immunity: Waiver. The Political Subdivisions Tort Claims Act provides limited waivers of sovereign immunity, which are subject to statutory exceptions.

         4. Political Subdivisions Tort Claims Act. The discretionary function exception of the Political Subdivisions Tort Claims Act extends only to basic policy decisions made in governmental activity at the operational level, and not to ministerial activities implementing such policy decisions.

         5. __ . The purpose of the discretionary function exception of the Political Subdivisions Tort Claims Act is to prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.

         6. __ . To determine whether the discretionary function exception of the Political Subdivisions Tort Claims Act applies, the Nebraska Supreme [297 Neb. 135] Court has set out a two-step analysis. First, a court must consider whether the action is a matter of choice for the acting employee. Second, if the court concludes that the challenged conduct involves an element of judgment, it must then determine whether that judgment is of the kind that the discretionary function exception was designed to shield.

         7. __ . The discretionary function exception of the Political Subdivisions Tort Claims Act does not apply when the governmental entity has a non-discretionary duty to warn or take other protective measures that may prevent injury as the result of the dangerous condition or hazard.

         8. Political Subdivisions: Negligence. A nondiscretionary duty to warn or take other protective measures exists when (1) a governmental entity has actual or constructive notice of a dangerous condition or hazard caused by or under the control of the governmental entity and (2) the dangerous condition or hazard is not readily apparent to persons who are likely to be injured by the dangerous condition or hazard.

         Appeal from the District Court for Washington County: John E. Samson, Judge. Affirmed.

          David A. Domina and Christian T. Williams, of Domina Law Group, PC, L.L.O., for appellant.

          Robert S. Keith and Philip O. Cusic, of Engles, Ketcham, Olson & Keith, P.C., for appellee Washington County.

          Tiernan T. Siems and Karen M. Keeler, of Erickson & Sederstrom, PC, for appellee Martin Marietta Materials, Inc.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Kelch, J.

         NATURE OF CASE

         This case involves a wrongful death action brought against Washington County (the County) for the death of James E. McGauley, a quarry worker who was killed while operating a dump truck on a road being built up by his employer, Martin Marietta Materials, Inc. (Marietta), on behalf of the County. The issue concerns whether the County had [297 Neb. 136] sovereign immunity under the discretionary acts exclusion of the Political Subdivisions Tort Claims Act (PSTCA).[1]

         FACTS

         On May 31, 2011, the State of Nebraska and the Washington County Highway Superintendent (the Superintendent) declared a disaster because of severe flooding from the Missouri River. The County assigned the majority of its road construction staff to build a road providing access to a residential subdivision, while the remaining staff assisted with general measures to mitigate flood damage in the area. On June 3, the County formed an emergency flood subcommittee (the Subcommittee).

         Marietta operated the only quarry in the County, and in early June 2011, the Army Corps of Engineers informed Marietta that the quarry was in imminent danger of flooding. County-owned road CR P30 was the only access road to the quarry for truck traffic. CR P30 allowed Marietta to provide quarry materials to combat the flooding in other parts of the County. This road, nearly a mile long, provided a barrier between the floodwaters and the quarry. ...


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