McGauley v. Washington County
297 Neb. 134
| Neb. | 2017Background
- June 2011 floods threatened Martin Marietta’s quarry; County road CR P30 was the quarry’s only truck access and needed to be raised to prevent flooding.
- County lacked resources to raise CR P30; it granted Marietta an oral easement (formalized later) allowing Marietta to build up the road to protect the quarry and preserve flood-response supplies.
- Marietta constructed the road under Mine Safety and Health Administration standards, implemented safety measures (lights, berms elsewhere, daily safety meetings), and warned workers about soft shoulders.
- On June 9, 2011, while backing a dump truck on CR P30, James McGauley drove off a shoulder that collapsed (no berm at that location) and drowned.
- Plaintiff (McGauley’s personal representative) sued the County and Marietta; the district court held a bench trial limited to sovereign immunity and concluded the County was protected by the PSTCA discretionary-function exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County’s decision to allow Marietta to build CR P30 is a discretionary act under PSTCA §13-910(2) | County’s later failures (lack of supervision, failure to enforce safety standards) made the County liable; the initial grant was not a shield for operational safety duties | Granting the easement was a policy decision made under emergency/resource constraints and thus discretionary | Allowed: the decision to permit Marietta to build was discretionary and fits PSTCA’s exception |
| Whether County’s alleged failure to supervise/enforce safety standards are separate nondiscretionary duties | These omissions are distinct ministerial acts for which immunity doesn’t apply | Supervision/enforcement weren’t feasible given lack of resources and were part of the overall discretionary policy choice | Rejected: court found non-supervision was part of the discretionary policy decision |
| Whether a nondiscretionary duty to warn or take protective measures existed | County had notice/control of CR P30 and thus had a duty to warn/take measures | Marietta controlled construction and had warned its workers; hazardous conditions were apparent to workers | Rejected: no nondiscretionary duty because hazardous conditions were readily apparent and Marietta had warned workers |
| Whether factual finding that dangers were readily apparent is clearly erroneous | Argued district court erred in finding conditions readily apparent to workers | County pointed to evidence of warnings, training, and prior operations by decedent | Affirmed: appellate court found factual finding supported by evidence and not clearly erroneous |
Key Cases Cited
- Shipley v. Department of Roads, 283 Neb. 832 (Neb. 2012) (establishes two-step discretionary-function analysis and nondiscretionary-duty exception)
- Mix v. City of Lincoln, 244 Neb. 561 (Neb. 1993) (standard of review for PSTCA factual findings)
- Cotton v. State, 281 Neb. 789 (Neb. 2011) (appellate court’s independent review of statutory interpretation)
- Kimminau v. City of Hastings, 291 Neb. 133 (Neb. 2015) (purpose of discretionary-function exception: prevent judicial second-guessing of policy choices)
- McCormick v. City of Norfolk, 263 Neb. 693 (Neb. 2002) (discusses balancing public policy, safety, and resource constraints in immunity context)