DAWN MCGAULEY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES E. MCGAULEY, DECEASED, APPELLANT,
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.
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
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.
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
__ . 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.
__ . 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.
__ . 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.
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.
from the District Court for Washington County: John E.
Samson, Judge. Affirmed.
A. Domina and Christian T. Williams, of Domina Law Group, PC,
L.L.O., for appellant.
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.
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
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
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. ...