McGauley v. Washington County
297 Neb. 134
Neb.2017Background
- In June 2011 severe flooding threatened a county quarry; CR P30 was the only access road and needed to be raised to protect quarry operations that supplied flood-fighting materials.
- Washington County (the County) lacked resources to raise CR P30 and granted Martin Marietta Materials, Inc. (Marietta) an oral easement (later formalized) to build up the road and indemnify the County.
- Marietta constructed the road to mine-industry standards, held daily safety meetings warning drivers about soft shoulders, and installed some safety measures, but no berm existed where the fatal accident occurred.
- On June 9, 2011, James McGauley, a Marietta truck driver, backed off the road, the shoulder collapsed, his truck flipped into floodwaters, and he drowned.
- The decedent’s personal representative sued Marietta and the County. After a bench trial limited to sovereign-immunity issues, the district court held the County immune under the PSTCA discretionary-function exception and dismissed County claims; the estate appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County’s decision to allow Marietta to raise CR P30 is protected by PSTCA discretionary-function exception | County’s overall decision was discretionary but decisions not to supervise or enforce county standards were separate, non‑discretionary duties | The choice to allow Marietta to work (and not supervise/enforce) was a single discretionary policy decision given resource limits | Court: County’s decision was discretionary and of the type protected by PSTCA; sovereign immunity applies |
| Whether County had nondiscretionary duty to warn/take protective measures | County had a duty if it had notice and the hazard was not readily apparent to likely victims | County argued hazards were readily apparent to Marietta workers who were warned and trained | Court: No nondiscretionary duty — hazards were readily apparent to workers and McGauley had been warned; exception does not apply |
Key Cases Cited
- Mix v. City of Lincoln, 244 Neb. 561 (discusses standard of review for PSTCA factual findings)
- Cotton v. State, 281 Neb. 789 (statutory and regulatory interpretation reviewed de novo)
- Shipley v. Department of Roads, 283 Neb. 832 (sets out discretionary-function analysis and nondiscretionary duty to warn test)
- Kimminau v. City of Hastings, 291 Neb. 133 (purpose of discretionary-function exception: avoid judicial second-guessing)
- McCormick v. City of Norfolk, 263 Neb. 693 (illustrative discretionary-function precedent)