McGauley v. Washington County
897 N.W.2d 851
| Neb. | 2017Background
- Flooding emergency in Washington County (June 2011) threatened the county quarry; county lacked resources to raise access road CR P30.
- County granted Marietta an oral easement (formalized later) to build up CR P30 so quarry could continue providing materials for flood control.
- Marietta built the road to Mine Safety standards, conducted daily safety meetings, used lights and berms elsewhere, and warned drivers to avoid soft shoulders.
- On June 9, 2011, while backing on CR P30 where no berm had been placed, driver James McGauley drove off the shoulder, the shoulder collapsed, his truck overturned into floodwaters, and he drowned.
- County did not supervise Marietta’s work or place signage/lighting; Superintendent visited the site twice and acknowledged construction did not meet County standards but said the matter was "out of [her] hands."
- Plaintiff (McGauley’s personal representative) sued County and Marietta; after a bench trial on sovereign immunity under the Political Subdivisions Tort Claims Act (PSTCA), the district court found the discretionary function exception applied and dismissed County; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County’s decision to allow Marietta to build CR P30 is protected by PSTCA discretionary-function exception | McGauley: decision was discretionary but ancillary failures (no supervision, no enforcement) were non-discretionary and thus waive immunity | County: permitting Marietta to build and not supervising/enforcing were part of a single discretionary policy decision in an emergency | Held: Permitting Marietta to build was discretionary and of the kind PSTCA shields; immunity applies |
| Whether County’s alleged failure to supervise/enforce safety standards is a separate nondiscretionary duty | McGauley: supervision/enforcement were ministerial duties separate from the policy decision | County: lacked resources; non-action was part of the overall discretionary choice to let Marietta proceed | Held: Court found lack of resources and treated non-supervision as part of the discretionary decision |
| Whether County had a nondiscretionary duty to warn or take protective measures under PSTCA (i.e., actual/constructive notice + hazard not readily apparent) | McGauley: County had notice and should have taken protective measures, so discretionary exception does not apply | County: either lacked requisite nondiscretionary duty or hazard was apparent to Marietta workers who were warned | Held: No nondiscretionary duty — second element fails because danger was readily apparent and Marietta warned workers |
| Whether factual findings re: notice and apparentness were clearly erroneous | McGauley: contests district court findings that workers were warned and danger was apparent | County: supports trial court's factual findings (safety meetings, worker experience) | Held: Appellate court defers to district court; findings not clearly erroneous, so immunity stands |
Key Cases Cited
- Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (procedural standard: factual findings under PSTCA reviewed for clear error)
- Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (appellate court independently reviews legal/statutory interpretation)
- Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (defines discretionary-function exception and two-step analysis)
- Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (purpose of discretionary-function exception: avoid judicial second-guessing of policy)
- McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (discusses balancing policy considerations and discretionary acts)