McGauley v. Washington County, 297 Neb. 134

Severe flooding in Washington County in June 2011 prompted emergency measures; CR P30 was the only access road to Martin Marietta’s quarry, critical for flood response.
County lacked resources/equipment to raise CR P30; the County’s flood subcommittee granted Marietta an oral easement (formalized later) to raise the road and Marietta agreed to indemnify.
Marietta constructed the road under Mine Safety standards, held daily safety meetings, installed partial lighting and berms elsewhere, and warned employees to avoid soft shoulders.
On June 9, 2011, while backing up on CR P30, James McGauley drove onto a soft shoulder (where no berm had been placed) that collapsed; his truck flipped into floodwaters and he drowned.
Plaintiff (McGauley’s personal representative) sued the County and Marietta; district court held a bench trial on sovereign immunity and dismissed claims against the County under the PSTCA discretionary-function exception.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether County is immune under PSTCA discretionary-function exception	County’s failure to supervise/enforce safety was nondiscretionary negligence, so immunity does not apply	County’s decision to allow Marietta to raise CR P30 and not supervise was a discretionary policy choice amid emergency and limited resources	Decision to allow Marietta to build was discretionary and protected by PSTCA; County immune
Whether decisions not to supervise/enforce standards were separable nondiscretionary acts	Those omissions were independent ministerial duties for safety	Non-supervision/enforcement were part of the broader policy decision and not feasible given resources	Not separable; part of same discretionary policy decision
Whether County had nondiscretionary duty to warn/take protective measures	County retained control/maintenance of CR P30 and had notice of hazardous conditions, so duty existed	Marietta controlled the worksite and had warned workers; hazardous conditions were apparent to workers	No nondiscretionary duty: conditions were readily apparent to Marietta workers who were warned; therefore exception does not apply
Whether factual findings that workers were warned and hazards apparent are clearly erroneous	Plaintiff contends record does not support findings	County relies on trial findings and Marietta’s safety practices	Appellate court affirms district court; findings supported by evidence

Mix v. City of Lincoln, 244 Neb. 561 (discusses appellate review under PSTCA)
Cotton v. State, 281 Neb. 789 (statutory interpretation questions reviewed de novo)
Shipley v. Department of Roads, 283 Neb. 832 (articulates discretionary-function analysis and nondiscretionary-duty exception)
Kimminau v. City of Hastings, 291 Neb. 133 (purpose of discretionary-function exception: avoid second-guessing policy decisions)
McCormick v. City of Norfolk, 263 Neb. 693 (addresses scope of governmental duties and immunity)