932 N.W.2d 490
Neb. Ct. App.2019Background
- On Sept. 13, 2015, Kathy Williams was injured when low-hanging branches of a City-owned street tree over a sidewalk knocked her off her bicycle; she and her husband sued the City under the Political Subdivisions Tort Claims Act (PSTCA).
- The City rejected the administrative tort claim; plaintiffs then filed suit alleging negligent tree maintenance and failure to prune.
- City evidence: tree care is handled by a community forestry division; maintenance is complaint-driven and prioritized by risk due to limited budget; City had no record of complaints about this tree and did not trim the three adjacent trees before the accident.
- Plaintiffs’ expert (an architect, not an arborist) opined recommended clearances (8–9 feet) were not met and that the tree created a hazardous condition, but could not establish how long branches had overhung the sidewalk nor that City followed those recommendations.
- District court granted summary judgment for the City, finding the discretionary function exception to the PSTCA applied and that there was no actual or constructive notice and the hazard was readily apparent. The Williamses appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recusal of judge | Judge employed by Lancaster County and is a City taxpayer, so bias is presumed | No timely motion to disqualify; issue first raised on appeal | Waived; not preserved for appeal |
| Applicability of PSTCA discretionary-function exception | Tree trimming/sidewalk safety is ministerial; City had duty to maintain so no discretion | City has discretion to set inspection/maintenance methods and budgets; complaint-driven plan is policy-based | Discretionary-function exception applies; City decisions protected |
| Nondiscretionary duty / notice | City had constructive notice due to tree growth and adjacent trimmed trees | City had no actual notice and no evidence showing how long branches overhung; adjacent trees were not trimmed by City | No actual or constructive notice; hazard was readily apparent; no nondiscretionary duty to warn |
| Summary judgment | Genuine issues of material fact exist (clearance standard, who trimmed adjacent trees, how long overhang existed) | Evidence shows recommended clearances are nonmandatory, City had discretionary program, and no notice; no factual dispute sufficient to avoid judgment | Summary judgment affirmed for City |
Key Cases Cited
- Tierney v. Four H Land Co., 281 Neb. 658 (judicial disqualification standard)
- Kimminau v. City of Hastings, 291 Neb. 133 (PSTCA and discretionary-function analysis)
- Geddes v. York County, 273 Neb. 271 (PSTCA is exclusive remedy against political subdivisions)
- McGauley v. Washington County, 297 Neb. 134 (nondiscretionary duty / notice framework under PSTCA)
- Blaser v. County of Madison, 285 Neb. 290 (waiver of disqualification by delay)
- Berkovitz v. United States, 486 U.S. 531 (two-step discretionary-function test)
- United States v. Gaubert, 499 U.S. 315 (presumption that discretionary acts are grounded in policy)
- Autery v. U.S., 992 F.2d 1523 (discretionary protection for tree-inspection programs)
- Merando v. U.S., 517 F.3d 160 (similar federal precedent on park service tree-management discretion)