McGauley v. Washington County, 297 Neb. 134

Background

Flooding emergency in Washington County in June 2011; County lacked resources to protect the only quarry from imminent flooding.
County granted Marietta an oral easement (formalized later) to raise county road CR P30 so quarry could supply material for flood response.
Marietta performed the work without County supervision; it implemented Mine Safety measures (lights, berms, daily safety meetings) and warned workers about soft shoulders.
On June 9, 2011, quarry truck driver James E. McGauley drove off a soft shoulder where no berm existed at the dump location, the shoulder collapsed, and he drowned.
McGauley’s personal representative sued the County and Marietta; the district court held the County immune under the PSTCA discretionary function exception and dismissed claims against the County.
Appeal challenged whether the discretionary-function exception applied and whether the County had a nondiscretionary duty to warn or take protective measures.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the County’s decision to allow Marietta to build up CR P30 is protected by the PSTCA discretionary-function exception	County’s decision was discretionary, but its failures to supervise/enforce safety were separate, nondiscretionary acts exposing it to liability	County argued the choice to permit Marietta and the related non-supervision were discretionary policymaking decisions during an emergency	Decision to allow Marietta was discretionary and within the exception; County immune
Whether the County’s alleged failure to supervise/enforce safety standards constituted separate, nondiscretionary duties	McGauley: supervision/enforcement were ministerial duties, not policy choices	County: lacked resources; non-supervision was part of the overall policymaking choice	Non-supervision/enforcement decisions were part of discretionary policy and thus protected
Whether the County had a nondiscretionary duty to warn or take protective measures under the PSTCA exception's safety-duty carve‑out	McGauley: County had notice/control and road hazards were not obvious, creating nondiscretionary duty	County: hazards were readily apparent to Marietta workers who had been warned; thus no nondiscretionary duty	No nondiscretionary duty — hazards were readily apparent and Marietta had warned workers; exception inapplicable
Whether factual findings (e.g., that hazards were apparent and Marietta warned workers) are clearly erroneous	McGauley disputed district court findings about warnings and worker knowledge	County relied on district court findings and record of safety meetings and warnings	Appellate court affirmed district court findings as not clearly erroneous

Key Cases Cited

Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (discusses standards of review for PSTCA factual findings)
Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (appellate court’s independent review on statutory interpretation)
Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (articulates discretionary-function test and duty-to-warn exception)
Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (purpose of discretionary-function exception to avoid judicial second-guessing)
McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (discusses policy balancing in discretionary decisions)