McGauley v. Washington County, 297 Neb. 134

In June 2011 severe Missouri River flooding threatened Martin Marietta’s (Marietta) quarry in Washington County; county road CR P30 provided the quarry’s only truck access.
County lacked resources to raise CR P30; the County’s emergency subcommittee orally granted Marietta an easement (formalized June 13) to build up the road and Marietta agreed to indemnify and assume responsibility.
Marietta constructed the raised road under Mine Safety and Health Administration standards, held daily safety meetings, installed lights, and placed berms except in the specific area of the fatal accident.
On June 9, 2011, quarry employee James McGauley backed off the unbermed portion of CR P30, the shoulder collapsed, his truck flipped into floodwaters, and he drowned.
The estate sued the County and Marietta; after a bench trial on sovereign immunity the district court held the County’s conduct was protected by the PSTCA discretionary-function exception and dismissed claims against the County.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the County is immune under the PSTCA discretionary-function exception	County’s decisions not to supervise or enforce safety standards were ministerial/non-discretionary, so exception doesn't apply	County’s decision to allow Marietta to build CR P30 (and not supervise due to lack of resources) was discretionary policymaking and thus immune	Court held County immune: decision to allow Marietta was discretionary and of the type the exception protects
Whether any separate nondiscretionary duty to warn or take protective measures existed	County had nondiscretionary duty because it controlled CR P30 and failed to warn or protect workers	No nondiscretionary duty because dangerous conditions were readily apparent and Marietta warned/train workers	Court held no nondiscretionary duty: conditions were apparent and Marietta had warned workers, so exception still applies

Mix v. City of Lincoln, 244 Neb. 561 (discusses standard of review for PSTCA factual findings)
Cotton v. State, 281 Neb. 789 (appellate courts independently review statutory interpretation)
Shipley v. Department of Roads, 283 Neb. 832 (defines discretionary-function exception and nondiscretionary duty to warn test)
Kimminau v. City of Hastings, 291 Neb. 133 (purpose of discretionary-function exception: avoid judicial second-guessing of policy decisions)
McCormick v. City of Norfolk, 263 Neb. 693 (discretionary-function analysis in emergency/resource-limited contexts)