Kimminau v. City of Hastings
291 Neb. 133
| Neb. | 2015Background
- On Nov. 15, 2009, a truck owned by R Lazy K and driven by Todd spilled wet corn mash onto South Showboat Boulevard in rural Adams County. Nebraska State Trooper Monte Dart closed the lane, called for assistance, and issued a citation to Todd.
- Hastings Fire and Hastings Rural responded, removed mash from the traveled portion onto the shoulder/ditch using shovels, brooms, and hoses, and Dart inspected and reopened the road when he deemed it safe. Mash remained on the shoulder after cleanup.
- On Nov. 16, 2009, Kaelynn Kimminau lost control of her vehicle after encountering corn mash on the southbound lane and was injured. There is no evidence who or when the mash migrated from the shoulder back onto the pavement.
- The Kimminaus sued Todd and R Lazy K (private parties) and the City of Hastings, Adams County, and Hastings Rural (political subdivisions) alleging negligence and failure to warn/repair. Political subdivisions asserted sovereign immunity under the PSTCA.
- The district court granted summary judgment to all defendants. On appeal, the Nebraska Supreme Court affirmed summary judgment for Todd and R Lazy K but reversed as to the political subdivisions, holding sovereign immunity was waived under § 13-910(12).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the political subdivisions are immune under PSTCA §13-910(12) ("spot or localized defect") | Corn mash spill on Nov. 15 created a single localized defect of which subdivisions had actual notice, so immunity waived | Mash that "migrated" onto road on Nov. 16 was a new event; subdivisions lacked notice of that event, so immunity remains | Held: Single localized defect from Nov. 15; subdivisions had notice and immunity waived under §13-910(12) |
| Whether the discretionary function exception (§13-910(2)) bars liability for subdivisions' cleanup decisions | Kimminau: cleanup was operational/ministerial; exception shouldn’t apply | County: cleanup/response discretionary, so immunity applies | Held: Cleanup/maintenance is operational/ministerial (statutory duty to maintain roads); discretionary-function exception does not apply |
| Whether Todd/R Lazy K retained duty after public authorities cleared the road and declared it safe | Kimminau: driver who caused obstruction retains duty to remediate/warn; summary judgment improper | Todd/R Lazy K: firefighters and trooper assumed control, declared road safe, cutting off any continuing duty | Held: Public authorities took control and declared road safe; it is unreasonable to expect a motorist to second-guess them—no continuing duty; summary judgment for Todd and R Lazy K affirmed |
| Whether factual disputes (e.g., where vehicle first hit mash) preclude summary judgment | Kimminau: factual issues remain about where mash was encountered and adequacy of cleanup | Defendants: no genuine issue of material fact; authorities inspected and reopened road; driver responsibility cut off | Held: For political subdivisions, immunity question governed disposition (reversed). For private defendants, court found no duty as a matter of law and affirmed summary judgment |
Key Cases Cited
- Woollen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999) (ruts of sufficient depth constitute a "spot or localized defect")
- Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012) (discretionary-function analysis in tort claims against government)
- Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992) (failure to warn of a dangerous road condition is akin to maintenance and not a discretionary policy decision)
- Simonsen v. Thorin, 120 Neb. 684, 234 N.W. 628 (1931) (actor who causes an obstruction may have a continuing duty to warn the public)
- Brown v. Nebraska P.P. Dist., 209 Neb. 61, 306 N.W.2d 167 (1981) (entity causing hazardous condition on roadway may be liable for failing to use ordinary care to prevent injury)
- A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010) (adopting Restatement (Third) §7 duty framework for negligence and no-duty determinations)