McGauley v. Washington County, 297 Neb. 134

In June 2011 severe Missouri River flooding threatened a quarry operated by Martin Marietta (Marietta); County road CR P30 was the only truck access and needed to be built up to protect the quarry and maintain flood-response supply access.
Marietta sought and received an oral easement from Washington County’s emergency flood subcommittee to raise CR P30 because the County lacked resources and equipment; a formal easement and indemnification were later signed.
Marietta constructed the road under Mine Safety and Health Administration–style practices: berms, lighting, and daily safety meetings warning drivers about soft shoulders; the specific accident site lacked a berm due to ongoing work.
On June 9, 2011, James McGauley, a Marietta driver, drove off the road shoulder while backing a dump truck; the shoulder collapsed, the truck overturned into floodwaters, and McGauley drowned.
McGauley’s personal representative sued both Marietta and Washington County; after a bench trial on sovereign immunity, the district court held the County immune under the Political Subdivisions Tort Claims Act (PSTCA) discretionary-function exception and dismissed the County; this decision was appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the County’s decision to allow Marietta to build up CR P30 is covered by the PSTCA discretionary-function exception	McGauley: County’s choices not to supervise or enforce standards were separate, nondiscretionary acts and not protected	County: Granting the easement and foregoing supervision were policy choices made under emergency resource constraints and thus discretionary	Court: The decision to allow Marietta to build the road was discretionary and the kind of policy judgment the exception shields; immunity applies
Whether the County had a nondiscretionary duty to warn or take protective measures that would remove immunity	McGauley: County retained maintenance responsibility and had a duty to warn/safeguard; failure to supervise/enforce safety is nondiscretionary	County: It lacked resources; supervision/enforcement were not viable options and were part of the discretionary emergency decision	Court: No nondiscretionary duty existed because the dangerous conditions were readily apparent to Marietta workers (who were warned); therefore no duty to protect that would deprive County of immunity

Mix v. City of Lincoln, 244 Neb. 561 (discusses standards for review of PSTCA fact findings)
Cotton v. State, 281 Neb. 789 (appellate courts independently review statutory interpretation)
Shipley v. Department of Roads, 283 Neb. 832 (articulates discretionary-function analysis and nondelegable duty exceptions)
Kimminau v. City of Hastings, 291 Neb. 133 (explains purpose of discretionary-function exception to avoid policy second-guessing)
McCormick v. City of Norfolk, 263 Neb. 693 (addresses discretionary decisions in emergency/resource contexts)