McGauley v. Washington County
297 Neb. 134
| Neb. | 2017Background
- June 2011 flooding emergency: Washington County lacked resources to protect the only quarry (operated by Martin Marietta) from imminent flooding; county road CR P30 provided critical access.
- County orally granted Marietta permission (later formalized) to raise CR P30 so the quarry could continue providing materials to fight the flood; County did not provide equipment, supervision, lighting, or signage for the work.
- Marietta built up the road under Mine Safety and Health Administration standards, held daily safety meetings, installed lights and berms elsewhere, and warned employees about soft shoulders.
- On June 9, 2011, while backing a dump truck on CR P30 where no berm existed, James McGauley drove onto a soft shoulder that collapsed; the truck flipped into floodwaters and McGauley drowned.
- McGauley’s personal representative sued the County and Marietta; the district court held a bench trial on sovereign immunity and dismissed claims against the County under the Political Subdivisions Tort Claims Act (PSTCA) discretionary function exception.
- The Supreme Court affirmed, holding the County’s decision to allow Marietta to build the road was discretionary and that no nondiscretionary duty to warn existed because the hazards were readily apparent and Marietta had warned its workers.
Issues
| Issue | McGauley (Plaintiff) Argument | Washington County (Defendant) Argument | Held |
|---|---|---|---|
| Whether County’s decision to allow Marietta to build up CR P30 is covered by PSTCA discretionary-function exception | County’s decisions not to supervise or enforce safety were separate, nondiscretionary duties and not shielded by immunity | The decision to allow Marietta to build the road and to not provide resources/supervision was a policy choice during an emergency and is discretionary | Court: Decision to permit Marietta to build was discretionary and shielded by PSTCA; supervisory/nonenforcement choices were part of that policy decision and also discretionary |
| Whether County had a nondiscretionary duty to warn or take protective measures (thus removing immunity) | County had notice and control and failed to provide warnings/controls, creating a nondiscretionary duty to protect workers | Even if notice existed, the dangerous conditions were readily apparent to likely-injured persons and Marietta warned employees, so no nondiscretionary duty existed | Court: No nondiscretionary duty — hazards were readily apparent and Marietta warned workers, so discretionary-function exception remains applicable |
Key Cases Cited
- Mix v. City of Lincoln, 244 Neb. 561 (statement on standard for PSTCA fact review)
- Cotton v. State, 281 Neb. 789 (appellate review of statutory interpretation)
- Shipley v. Department of Roads, 283 Neb. 832 (defines PSTCA discretionary-function test and nondiscretionary duty to warn)
- 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 decisions involving resource constraints and emergency responses)