McGauley v. Washington County
297 Neb. 134
Neb.2017Background
- In June 2011 severe Missouri River flooding threatened a quarry operated by Martin Marietta (Marietta); county road CR P30 was the quarry's only truck access and formed a flood barrier.
- Marietta sought and received an oral easement from Washington County’s emergency flood subcommittee to raise CR P30 because the County lacked resources; a formal easement and indemnification were later signed.
- Marietta constructed the roadway under Mine Safety and Health Administration standards, held daily safety meetings, placed berms and lighting in parts of the site, and warned drivers about soft shoulders.
- On June 9, 2011, while backing to dump rock on a section of CR P30 that lacked a berm, driver James McGauley drove onto a soft shoulder, the shoulder collapsed, his truck flipped into floodwaters, and he drowned.
- The estate sued Marietta and Washington County; after a bench trial on sovereign immunity, the district court held the county immune under the PSTCA discretionary-function exception 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 PSTCA discretionary-function exception | McGauley: County waived immunity; the decision was subject to review and not purely discretionary | County: Decision to permit third‑party roadwork during emergency was a discretionary policy judgment | Held: Decision was discretionary and protected; immunity applies |
| Whether County’s alleged decisions not to supervise or enforce standards were separate, non‑discretionary acts | McGauley: Failure to supervise/enforce safety was ministerial and not shielded by the exception | County: Lack of resources made supervision part of the discretionary emergency decision | Held: Not separate acts; part of the overall discretionary policy choice |
| Whether County had a nondiscretionary duty to warn or take protective measures on CR P30 | McGauley: County had notice/control and thus a duty to warn or protect workers | County: Workers were Marietta’s, and dangerous conditions were known to and warned by Marietta; no nondiscretionary duty existed | Held: No nondiscretionary duty—danger was readily apparent to Marietta workers who were warned |
| Whether the dangerous condition was ‘‘not readily apparent’’ to persons likely to be injured (triggering nondiscretionary duty) | McGauley: Conditions were dangerous and not obvious; County should have acted | County: Marietta trained and warned its workers; conditions were apparent to them | Held: Conditions were readily apparent to Marietta workers (including McGauley); element not met |
Key Cases Cited
- Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (discusses the two‑step discretionary‑function analysis and nondiscretionary duty to warn)
- Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (explains purpose of discretionary‑function exception to avoid judicial second‑guessing of policy decisions)
- McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (acknowledges policy judgments in governmental decisionmaking)
- Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (standard of review for PSTCA factual findings)
- Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (appellate court’s independent review of statutory interpretation)