McGauley v. Washington County
297 Neb. 134
Neb.2017Background
- In June 2011 flood emergency, Washington County granted Martin Marietta an oral easement (later formalized) to raise county road CR P30 so the quarry could continue supplying materials to fight the flood.
- County lacked resources/equipment to perform the work and did not participate in the road buildup; Marietta performed construction under Mine Safety & Health Administration–style precautions and held daily safety meetings for its drivers.
- On June 9, 2011, quarry truck driver James McGauley drove off the road where no berm existed, the shoulder collapsed, the truck flipped into floodwaters, and McGauley drowned.
- McGauley’s personal representative sued the County and Marietta; the district court held a bench trial on sovereign immunity under the Political Subdivisions Tort Claims Act (PSTCA) and dismissed claims against the County based on the discretionary function exception.
- The Nebraska Supreme Court reviewed whether the County’s decisions were discretionary and whether it owed a nondiscretionary duty to warn or protect workers from hazards on CR P30.
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 later choices not to supervise or enforce standards were separate ministerial duties; discretionary exception shouldn’t bar liability | Granting easement and decisions about supervision/enforcement were discretionary policymaking given emergency and lack of resources | Decision to allow Marietta to build was discretionary; exception applies, so immunity protects County |
| Whether County’s lack of supervision/enforcement were nondiscretionary duties | Those were ministerial, separate obligations that the County failed to perform | Supervising/enforcing wasn’t an available option given resource constraints and part of the overall discretionary policy choice | County’s non-supervision was part of the discretionary policy choice and not a separate nondiscretionary duty |
| Whether County had a nondiscretionary duty to warn/take protective measures for hazard on CR P30 | County had notice/control and thus a duty to warn or protect workers from hazards on its road | Even if notice element met, hazards were readily apparent to workers; Marietta had warned and trained employees | No nondiscretionary duty: hazard was readily apparent to Marietta workers and McGauley personally; therefore discretionary-function exception did not yield to a duty-to-warn exception |
| Whether district court’s factual findings were clearly erroneous (standard of review) | Challenge factual findings about warnings, training, and appearance of hazards | District court findings supported by evidence (safety meetings, prior use, warnings) | Findings not clearly erroneous; appellate court affirms dismissal based on sovereign immunity |
Key Cases Cited
- Shipley v. Department of Roads, 283 Neb. 832 (Neb. 2012) (articulates discretionary-function exception framework under PSTCA)
- Kimminau v. City of Hastings, 291 Neb. 133 (Neb. 2015) (discretionary-function exception prevents second-guessing of policy decisions)
- McCormick v. City of Norfolk, 263 Neb. 693 (Neb. 2002) (discusses governmental authority and discretionary immunity)
- Mix v. City of Lincoln, 244 Neb. 561 (Neb. 1994) (standard for reviewing PSTCA factual findings)
- Cotton v. State, 281 Neb. 789 (Neb. 2011) (interpretation of statutes presents questions of law for independent appellate review)