McGauley v. Washington County
297 Neb. 134
Neb.2017Background
- Flooding emergency in Washington County threatened the county quarry; county lacked resources to protect the quarry and needed quarry materials to fight floods.
- Marietta (quarry operator) sought and received the County Subcommittee’s oral easement to raise county road CR P30 so the quarry could operate; a formal easement and indemnity were later signed.
- Marietta performed the work without County supervision, following Mine Safety and Health Administration–style precautions (lights, berms where placed, daily safety meetings warning drivers about soft shoulders).
- On June 9, 2011, while backing a dump truck on CR P30, James McGauley drove onto a soft shoulder where no berm existed at that location; the shoulder collapsed and his truck flipped into floodwaters, killing him.
- McGauley’s personal representative sued the County and Marietta; at a bench trial limited to sovereign immunity under the Political Subdivisions Tort Claims Act (PSTCA), the district court found the County’s discretionary-function exception applied and dismissed the County; the estate appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County’s decision to allow Marietta to build up CR P30 is protected by the PSTCA discretionary-function exception | County’s later failures (lack of supervision/enforcement of safety standards) were separate, nondiscretionary acts, so immunity does not apply | Granting the easement and related choices were discretionary policy decisions in an emergency; supervision/enforcement were not feasible and were part of that policy choice | Held: County’s decision was discretionary and within PSTCA exception; immunity applies |
| Whether County had a nondiscretionary duty to warn or take protective measures that would negate the discretionary-function exception | County had notice and control such that it owed a nondiscretionary duty to warn/act | Marietta warned its workers and conditions were readily apparent to those likely injured; County had no duty to take further measures | Held: No nondiscretionary duty existed because dangerous condition was readily apparent to Marietta workers (including McGauley), so exception does not apply |
Key Cases Cited
- Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012) (explains PSTCA discretionary-function analysis and duty-to-warn exception)
- Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015) (purpose of discretionary-function exception to avoid judicial second-guessing)
- Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (1993) (standard for appellate review of PSTCA factual findings)
- Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (2011) (statutory and regulatory interpretation reviewed de novo)
- McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002) (discretionary-function exception analysis)