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Williams v. City of Lincoln

Court of Appeals of Nebraska

July 23, 2019

Kathy Girard Williams, Ph.D., and Michael Williams, appellants,
v.
City of Lincoln, Nebraska, appellee.

         1. Judges: Recusal. A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.

         2. Judgments: Statutes: Appeal and Error. Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the decision made by the court below.

         3. Political Subdivisions Tort Claims Act. Whether the allegations made by a plaintiff present a claim that is precluded by exemptions set forth in the Political Subdivisions Tort Claims Act is a question of law.

         4. Political Subdivisions Tort Claims Act: Appeal and Error. An appellate court has an obligation to reach its conclusion on whether a claim is precluded by exemptions set forth in the Political Subdivisions Tort Claims Act independent from the conclusion reached by the trial court.

         5. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         6. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

         7. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, a judge must recuse himself or herself from a case if the judge's impartiality might reasonably be questioned.

         [27 Neb.App. 415] 8.__:__. Under the Nebraska Revised Code of Judicial Conduct, such instances in which the judge's impartiality might reasonably be questioned specifically include where the judge has a personal bias or prejudice concerning a party or a party's lawyer.

         9. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

         10. Judges: Recusal: Waiver. A party is said to have waived his or her right to obtain a judge's disqualification when the alleged basis for the disqualification has been known to the party for some time, but the objection is raised well after the judge has participated in the proceedings.

         11. Political Subdivisions Tort Claims Act: Waiver: Immunity. The Political Subdivisions Tort Claims Act reflects a limited waiver of governmental immunity and prescribes the procedure for maintenance of a suit against a political subdivision.

         12. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.

         13. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and against the waiver.

         14. 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.

         15. Political Subdivisions Tort Claims Act. A court engages in a two-step analysis to determine whether the discretionary function exception of the Political Subdivisions Tort Claims Act applies. First, the 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.

         16. __ . 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.

         17. __ . 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.

         18. Political Subdivisions Tort Claims Act: Negligence. A nondiscretionary duty to warn or take other protective measures exists when (1) a [27 Neb.App. 416] 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 Lancaster County: Susan I. Strong, Judge. Affirmed.

          Jerry W. Katskee and Thomas C. Dorwart, of Govier, Katskee, Suing & Maxell, P.C., L.L.O., for appellants.

          Jeffery R. Kirkpatrick, Lincoln City Attorney, Elizabeth D. Elliott, and Margaret M. Blatchford for appellee.

          Riedmann, Arterburn, and Welch, Judges.

          RIEDMANN, JUDGE.

         INTRODUCTION

         Kathy Girard Williams and Michael Williams appeal the order of the district court for Lancaster County which entered summary judgment in favor of the City of Lincoln, Nebraska (the City), based on the court's determination that the Williamses' claims against the City were barred by sovereign immunity. We affirm.

         BACKGROUND

         On September 13, 2015, the Williamses were riding their bicycles on a sidewalk owned by the City. Shortly past an intersection, a row of pear trees lined the median between the sidewalk and the street. Michael was riding in front of Kathy, and the pair rode past the first three trees without incident. The branches of the fourth tree, however, extended over the sidewalk. Michael was approximately 20 to 30 feet away when he noticed the overgrown tree. Michael yelled back to warn Kathy of the tree up ahead and successfully veered to the side and around the tree, but Kathy, who was riding approximately 5 to 10 feet behind Michael, collided with the low-hanging [27 Neb.App. 417] branches of the tree, was knocked off her bicycle, and sustained serious injuries.

         The Williamses filed a tort claim with the City pursuant to the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012), seeking damages in the amount of $1 million. The City rejected the claim. The Williamses then filed a complaint in the district court. The complaint alleged that Kathy's injuries were the result ...


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