Clark v. Sargent Irr. Dist.
311 Neb. 123
| Neb. | 2022Background:
- On July 3, 2019, Sargent Irrigation District (SID) employee Doug Kriss, a licensed noncommercial pesticide applicator, applied a herbicide mixture along a canal; a sprayer tank that had not been properly rinsed contained about 3 gallons of Roundup that mixed with a 2,4‑D solution.
- Donald and Kimberly Clark observed extensive corn crop damage (claimed 9,673 bushels) and obtained agronomist opinions attributing the damage to off‑label application and overapplication by SID; Kriss and SID manager provided a written statement acknowledging the un‑rinsed tank and possible overapplication.
- The Clarks submitted a written PSTCA claim to SID on June 29, 2020; the SID board declined to settle and recorded a denial (final disposition) on July 7, 2020; the Clarks sued SID and Kriss for negligence on September 1, 2020.
- SID moved to dismiss/for summary judgment, asserting (1) the PSTCA discretionary‑function exemption and (2) failure to comply with PSTCA presuit "final disposition" requirement; the district court denied summary judgment, concluding the Nebraska Pesticide Act (§ 2‑2643.01) precluded discretion to mix/apply pesticides off‑label.
- SID filed an interlocutory appeal under Neb. Rev. Stat. § 25‑1902(1)(d) (appeal from denial of summary judgment when motion is "based on the assertion of sovereign immunity").
- The Nebraska Supreme Court held it had jurisdiction to review only the discretionary‑function issue (statutory exemption = sovereign immunity), rejected SID’s discretionary‑function claim because the Pesticide Act prescribed conduct (no discretion), affirmed denial of summary judgment on that ground, and dismissed the remainder of the appeal for lack of jurisdiction.
Issues:
| Issue | Plaintiff's Argument (Clarks) | Defendant's Argument (SID) | Held |
|---|---|---|---|
| Whether denial of summary judgment is appealable under § 25‑1902(1)(d) when motion invokes sovereign immunity or presuit procedures | § 25‑1902(1)(d) applies to motions asserting true sovereign immunity defenses | § 25‑1902(1)(d) permits interlocutory appeal of any summary‑judgment motion that references sovereign immunity or PSTCA presuit failures | § 25‑1902(1)(d) applies narrowly: motions invoking statutory exemptions (sovereign immunity) qualify; motions asserting failure to comply with presuit claim procedures do not. |
| Whether failure to meet PSTCA "final disposition" presuit requirement is jurisdictional and bars suit | Clarks: PSTCA presuit requirements are procedural conditions precedent, not jurisdictional; compliance here was alleged | SID: The Clarks did not satisfy final disposition requirement, so PSTCA immunity was not waived | The court lacks appellate jurisdiction to review a denial of summary judgment based solely on alleged failure to satisfy presuit procedures; such defenses are procedural, not sovereign‑immunity jurisdictional grounds. |
| Whether the PSTCA discretionary‑function exemption bars the Clarks’ negligence claims | Discretionary‑function exemption inapplicable because Nebraska Pesticide Act prescribes use consistent with labeling—no element of choice | SID: Employee had discretion in how to use/apply herbicides, so the discretionary‑function exemption bars liability | The exemption does not apply. The Pesticide Act (§ 2‑2643.01) prescribes specific conduct (no discretion to mix/use off‑label or act negligently), so summary judgment based on discretionary function was properly denied. |
Key Cases Cited
- Mercer v. North Central Serv., 308 Neb. 224, 953 N.W.2d 551 (2021) (explains discretionary‑function analysis under PSTCA and de novo review for immunity questions)
- Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 N.W.2d 378 (2021) (interlocutory appeal context under § 25‑1902 discussed)
- Great Northern Ins. Co. v. Transit Auth. of Omaha, 305 Neb. 609, 941 N.W.2d 497 (2020) (earlier consideration of § 25‑1902 amendments and interlocutory appeals)
- Saylor v. State, 306 Neb. 147, 944 N.W.2d 726 (2020) (holds PSTCA/STCA presuit claim presentment requirements are procedural, not jurisdictional)
- Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994) (uses statutes/ordinances to determine existence of discretion for PSTCA exemption)
- Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016) (clarifies that discretionary acts by state actors are not basis for liability under STCA)
- Berkovitz v. United States, 486 U.S. 531 (1988) (federal two‑part test for discretionary‑function exception referenced for framework)