Kathy Girard Williams, Ph.D., and Michael Williams, appellants,
City of Lincoln, Nebraska, appellee.
Judges: Recusal. A judge shall disqualify
himself or herself in any proceeding in which the judge's
impartiality might reasonably be questioned.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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. 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.
. 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.
. 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 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.
from the District Court for Lancaster County: Susan I.
Strong, Judge. Affirmed.
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.
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.
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.
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