McGauley v. Washington County
297 Neb. 134
| Neb. | 2017Background
- Severe Missouri River flooding in May–June 2011 prompted emergency measures; Washington County formed a flood subcommittee and lacked resources to protect all at-risk sites.
- Martin Marietta Materials (Marietta), the county’s only quarry operator, sought and received the County’s oral easement (formalized later) to raise county road CR P30 to protect the quarry and preserve a supply route for flood response.
- Marietta performed the road buildup under Mine Safety and Health Administration–style precautions (daily safety meetings, berms, lighting in parts); County did not participate in or supervise the construction and provided no on-site warnings or signs.
- On June 9, 2011, quarry truck driver James McGauley drove off the unbermed portion of CR P30, the shoulder collapsed, his truck overturned into floodwaters, and he drowned; Marietta had warned workers about soft shoulders and safety procedures.
- Plaintiff (McGauley’s personal representative) sued the County and Marietta; after a bench trial on sovereign-immunity only, the district court held the County immune under the PSTCA discretionary-function exception and dismissed County claims; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County’s decision to allow Marietta to build CR P30 is discretionary under PSTCA § 13-910(2) | County’s authorization was ministerial or separable from later failures; immunity should not bar suit | Allowing Marietta to build was a policy choice balancing emergency needs and limited resources | Discretionary: County’s decision to allow Marietta to build was a protected policy judgment |
| Whether County’s failure to supervise/enforce safety standards was a separate nondiscretionary duty | County had nondiscretionary duty to supervise and ensure safety; those acts are not shielded | Supervision/enforcement were not feasible given lack of resources and were part of the overall discretionary decision | Not separate: decision not to supervise/enforce was part of the discretionary policy choice |
| Whether County had a nondiscretionary duty to warn or take protective measures on CR P30 | County had notice/control of road and should have taken protective measures; discretionary exception does not apply when nondiscretionary duty exists | Even if County had notice, danger was readily apparent to workers and Marietta had warned them, so no nondiscretionary duty arose | No nondiscretionary duty: danger was readily apparent to Marietta workers (including McGauley), so discretionary exception stands |
| Whether factual findings below (e.g., that danger was readily apparent) were clearly erroneous | Trial court’s findings disputed; should be reversed if clearly erroneous | Trial court findings supported by evidence and not clearly erroneous | Affirmed: factual findings supported; sovereign immunity applies |
Key Cases Cited
- Shipley v. Department of Roads, 283 Neb. 832 (discretionary-function analysis and nondiscretionary-duty exception to immunity)
- Kimminau v. City of Hastings, 291 Neb. 133 (purpose of discretionary-function exception to prevent judicial second-guessing)
- McCormick v. City of Norfolk, 263 Neb. 693 (illustrative of discretionary-function application)
- Mix v. City of Lincoln, 244 Neb. 561 (standard for reviewing factual findings under PSTCA proceedings)
- Cotton v. State, 281 Neb. 789 (interpretation of statutes and review standard for questions of law)