McGauley v. Washington County
297 Neb. 134
Neb.2017Background
- In June 2011 severe Missouri River flooding threatened Martin Marietta’s sole county quarry; County road CR P30 was the only truck access and needed to be raised to protect the quarry and maintain flood-response supplies.
- Marietta asked the Washington County Highway Superintendent for permission to raise CR P30; the County’s emergency flood subcommittee orally granted an easement on June 6 and later signed formal documents.
- County lacked resources/equipment to perform the work; Marietta performed construction under Mine Safety regulations, used berms, lights, and held daily safety meetings warning workers about soft shoulders.
- On June 9, 2011, while backing a dump truck on CR P30, James McGauley drove onto a soft shoulder where there was no berm, the shoulder collapsed, the truck flipped into floodwaters, and McGauley drowned.
- Plaintiff (McGauley’s personal representative) sued the County and Marietta; at a bench trial the district court held the County immune under the PSTCA discretionary-function exception and dismissed claims against the County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County action is covered by PSTCA discretionary-function exception | County’s failure to supervise/enforce safety standards was a separate, nondiscretionary act, so immunity does not apply | Granting easement and related supervisory choices were discretionary policy decisions during an emergency; immunity applies | Court held the County’s decision to allow Marietta to build the road was discretionary and protected by immunity |
| Whether decisions not to supervise/enforce safety were separate nondiscretionary duties | McGauley: not supervising/enforcing were operational, ministerial duties the County could have performed | County: lacked resources; supervision/nonenforcement were part of the broader discretionary decision to permit Marietta to act | Court held supervision/enforcement choices were part of the discretionary policy decision and thus covered |
| Whether County had nondiscretionary duty to warn or take protective measures | McGauley: County had duty to warn/act if notice of hazard and hazard not readily apparent | County: either no notice or hazards were apparent to workers and Marietta had warned/trainings in place | Court held no nondiscretionary duty because hazardous conditions were readily apparent to Marietta workers, who were warned; thus exception did not apply |
| Whether facts supporting district court’s findings were clearly erroneous | McGauley: district court erred in factual findings about warnings/knowledge | County: factual findings supported by evidence (safety meetings, berms, worker knowledge) | Appellate court affirmed district court findings as not clearly erroneous |
Key Cases Cited
- Mix v. City of Lincoln, 244 Neb. 561 (discusses appellate review standard for PSTCA factual findings)
- Cotton v. State, 281 Neb. 789 (appellate courts independently review statutory interpretation questions)
- Shipley v. Department of Roads, 283 Neb. 832 (articulates discretionary-function exception and two-step analysis)
- Kimminau v. City of Hastings, 291 Neb. 133 (explains purpose of discretionary-function exception to avoid second-guessing policy decisions)
- McCormick v. City of Norfolk, 263 Neb. 693 (addresses nondiscretionary duty to warn/protect under PSTCA)