McGauley v. Washington County, 297 Neb. 134

Background

Flooding emergency in Washington County in June 2011; County lacked resources to protect a quarry threatened by floodwaters.
County granted Marietta an oral easement (later formalized) to raise county road CR P30 so the quarry could continue operations and supply materials for flood response.
Marietta performed the road buildup without County supervision; it implemented safety measures (daily safety meetings, berms, lighting where possible) under Mine Safety regulations.
On June 9, 2011, quarry truck driver James McGauley drove off the road where no berm existed, the shoulder collapsed, and he drowned; his estate sued Marietta and Washington County for wrongful death.
District court held a bench trial on sovereign immunity and ruled the County was protected by the Political Subdivisions Tort Claims Act (PSTCA) discretionary function exception; the estate appealed.

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	McGauley: County chose to allow work but then had nondelegable duties; decision to permit is not immune when safety harms result	County: Granting easement during emergency was a policy judgment balancing competing public needs and limited resources	Held: Decision to allow Marietta to build was discretionary and of the kind PSTCA shields; immunity applies
Whether County’s failure to supervise/enforce its standards was separate, non-discretionary conduct	McGauley: Decisions not to supervise/enforce safety standards were ministerial and not protected	County: Lack of resources made supervision unenforceable and part of the discretionary choice to delegate the work	Held: Failure to supervise/enforce was part of the overall discretionary policymaking and thus within the exception
Whether County had a nondiscretionary duty to warn or take protective measures	McGauley: County retained maintenance responsibility and thus a duty to warn/protect workers from hazards	County: Marietta controlled operations and warned its workers; dangerous conditions were apparent to workers	Held: No nondiscretionary duty—dangerous condition was readily apparent to Marietta workers, who were warned; duty exception not met
Final question: Is the estate’s claim barred by sovereign immunity?	McGauley: Exceptions apply so claim should proceed	County: PSTCA discretionary function exception bars suit	Held: Claim barred by sovereign immunity; dismissal affirmed

Key Cases Cited

Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (court of appeals standard on PSTCA findings) (discusses standard for reviewing PSTCA factual findings)
Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (statutory interpretation is reviewed de novo)
Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (articulates discretionary-function analysis and duty-to-warn framework)
Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (purpose of discretionary-function exception to avoid second-guessing policy decisions)
McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (discusses discretionary vs. nondiscretionary duties under PSTCA)