McGauley v. Washington County
297 Neb. 134
| Neb. | 2017Background
- After severe Missouri River flooding in May 2011, Washington County lacked resources to protect the only access road (CR P30) to the county quarry, which was critical for flood-response supplies.
- Martin Marietta (Marietta), the quarry operator, sought and received the County’s oral easement (later formalized) to raise CR P30 to protect the quarry.
- Marietta performed the road buildup without County supervision; Marietta implemented safety measures (lights, 3-ft berms, daily safety meetings) and warned workers about soft shoulders.
- On June 9, 2011, James McGauley, a Marietta driver, drove off the shoulder at a section without a berm, the shoulder collapsed, and he drowned.
- McGauley’s personal representative sued the County and Marietta; the district court held the County immune under the Political Subdivisions Tort Claims Act (PSTCA) discretionary function exception; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County’s decision to let Marietta build CR P30 is protected by PSTCA discretionary-function exception | County’s choice to allow Marietta was discretionary but separate failures (no supervision/enforcement) were ministerial and not immune | The decision to allow Marietta (and attendant non-supervision) was a discretionary policy choice in an emergency | County’s decision to permit Marietta was discretionary and protected by the exception |
| Whether County’s failure to supervise/enforce safety standards was a separate non-discretionary duty | McGauley: County had nondiscretionary duty to supervise and enforce its road standards | County: lacked resources; non-supervision was part of the overall discretionary emergency decision | Failure to supervise/enforce was part of the discretionary policy and immune |
| Whether County had a nondiscretionary duty to warn or take protective measures for hazards on CR P30 | McGauley: County had notice and should have warned/worked to protect workers | County: Marietta controlled operations and warned workers; hazards were apparent to workers | No nondiscretionary duty existed because hazards were readily apparent and Marietta warned workers |
| Whether factual finding that hazards were readily apparent is clearly erroneous | McGauley: factual record shows gaps (no berm at accident spot; County recognized substandard worksite) | County: Marietta conducted safety meetings and trained workers; decedent attended warnings | Appellate court: district court’s factual finding that hazards were readily apparent was supported and not clearly erroneous |
Key Cases Cited
- Mix v. City of Lincoln, 244 Neb. 561 (1993) (standard for reviewing PSTCA factual findings)
- Cotton v. State, 281 Neb. 789 (2011) (appellate court’s independent review of statutory interpretation)
- Shipley v. Department of Roads, 283 Neb. 832 (2012) (defines PSTCA discretionary-function two-step analysis and nondiscretionary duty to warn)
- Kimminau v. City of Hastings, 291 Neb. 133 (2015) (purpose of discretionary-function exception: avoid judicial second-guessing of policy decisions)
- McCormick v. City of Norfolk, 263 Neb. 693 (2002) (discretionary-function protects policy decisions involving resource allocation)