McGauley v. Washington County , 297 Neb. 134 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/22/2017 01:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    McGAULEY v. WASHINGTON COUNTY
    Cite as 
    297 Neb. 134
    Dawn McGauley, as Personal R epresentative
    of theEstate of James E. McGauley, deceased,
    appellant, v. Washington County, a corporation
    and political subdivision of the State of
    Nebraska, and M artin M arietta
    M aterials, Inc., appellees.
    ___ N.W.2d ___
    Filed July 7, 2017.     No. S-16-897.
    1.	 Political Subdivisions Tort Claims Act: Appeal and Error. A district
    court’s findings of fact in a proceeding under the Political Subdivisions
    Tort Claims Act will not be set aside unless such findings are clearly
    erroneous.
    2.	 Administrative Law: Statutes: Appeal and Error. To the extent that
    the meaning and interpretation of statutes and regulations are involved,
    questions of law are presented, in connection with which an appellate
    court has an obligation to reach an independent conclusion irrespective
    of the decision made by the court below.
    3.	 Political Subdivisions Tort Claims Act: Immunity: Waiver. The
    Political Subdivisions Tort Claims Act provides limited waivers of sov-
    ereign immunity, which are subject to statutory exceptions.
    4.	 Political Subdivisions Tort Claims Act. The discretionary function
    exception of the Political Subdivisions Tort Claims Act extends only
    to basic policy decisions made in governmental activity at the opera-
    tional level, and not to ministerial activities implementing such pol-
    icy decisions.
    5.	 ____. The purpose of the discretionary function exception of the Political
    Subdivisions Tort Claims Act is to prevent judicial “second-guessing” of
    legislative and administrative decisions grounded in social, economic,
    and political policy through the medium of an action in tort.
    6.	 ____. To determine whether the discretionary function exception of the
    Political Subdivisions Tort Claims Act applies, the Nebraska Supreme
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    McGAULEY v. WASHINGTON COUNTY
    Cite as 
    297 Neb. 134
    Court has set out a two-step analysis. First, a court must consider
    whether the action is a matter of choice for the acting employee. Second,
    if the court concludes that the challenged conduct involves an element
    of judgment, it must then determine whether that judgment is of the kind
    that the discretionary function exception was designed to shield.
    7.	 ____. The discretionary function exception of the Political Subdivisions
    Tort Claims Act does not apply when the governmental entity has a non-
    discretionary duty to warn or take other protective measures that may
    prevent injury as the result of the dangerous condition or hazard.
    8.	 Political Subdivisions: Negligence. A nondiscretionary duty to warn
    or take other protective measures exists when (1) a governmental entity
    has actual or constructive notice of a dangerous condition or hazard
    caused by or under the control of the governmental entity and (2) the
    dangerous condition or hazard is not readily apparent to persons who
    are likely to be injured by the dangerous condition or hazard.
    Appeal from the District Court for Washington County: John
    E. Samson, Judge. Affirmed.
    David A. Domina and Christian T. Williams, of Domina Law
    Group, P.C., L.L.O., for appellant.
    Robert S. Keith and Philip O. Cusic, of Engles, Ketcham,
    Olson & Keith, P.C., for appellee Washington County.
    Tiernan T. Siems and Karen M. Keeler, of Erickson &
    Sederstrom, P.C., for appellee Martin Marietta Materials, Inc.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    K elch, J.
    NATURE OF CASE
    This case involves a wrongful death action brought against
    Washington County (the County) for the death of James E.
    McGauley, a quarry worker who was killed while operat-
    ing a dump truck on a road being built up by his employer,
    Martin Marietta Materials, Inc. (Marietta), on behalf of
    the County. The issue concerns whether the County had
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    McGAULEY v. WASHINGTON COUNTY
    Cite as 
    297 Neb. 134
    sovereign immunity under the discretionary acts exclusion of
    the Political Subdivisions Tort Claims Act (PSTCA).1
    FACTS
    On May 31, 2011, the State of Nebraska and the Washington
    County Highway Superintendent (the Superintendent) declared
    a disaster because of severe flooding from the Missouri
    River. The County assigned the majority of its road construc-
    tion staff to build a road providing access to a residential
    subdivision, while the remaining staff assisted with general
    measures to mitigate flood damage in the area. On June 3,
    the County formed an emergency flood subcommittee (the
    Subcommittee).
    Marietta operated the only quarry in the County, and in early
    June 2011, the Army Corps of Engineers informed Marietta
    that the quarry was in imminent danger of flooding. County-
    owned road CR P30 was the only access road to the quarry
    for truck traffic. CR P30 allowed Marietta to provide quarry
    materials to combat the flooding in other parts of the County.
    This road, nearly a mile long, provided a barrier between the
    floodwaters and the quarry. Unless the road were raised or
    some other action were taken, floodwaters would overtake the
    quarry, halting any work there.
    On June 6, 2011, a representative of Marietta contacted
    the Superintendent, seeking permission to raise the height of
    CR P30. The Superintendent gave permission to undertake the
    project but advised the representative that the Subcommittee
    would have to approve it. Later that day, the Subcommittee
    met. Because the County lacked the resources and equipment
    to raise the road, the Subcommittee granted Marietta an oral
    easement to raise the road. A formal easement and an indemni-
    fication agreement were signed on June 13.
    At the bench trial, members of the Subcommittee testi-
    fied that they orally agreed to allow Marietta to take on the
    1
    Neb. Rev. Stat. § 13-910(2) (Reissue 2012).
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    McGAULEY v. WASHINGTON COUNTY
    Cite as 
    297 Neb. 134
    project under the express condition that Marietta accept full
    responsibility. However, Marietta’s representative denied any
    discussion of liability.
    CR P30’s construction was subject to Mine Health Safety
    Administration regulations. Marietta had experience building
    roads to those regulations’ standards within its quarry. To com-
    ply with the standards, Marietta took numerous safety precau-
    tions, including installing lights to provide partial illumination
    in the dark, placing 3-foot berms (raised rows of gravel and
    dirt) on each side of the road to warn drivers where the soft
    shoulder of the road began, and holding daily safety meetings
    before each shift. At the daily safety meetings, Marietta drivers
    were advised that the softness of the shoulders increased the
    probability of collapse. They were told to stay off the shoul-
    ders and to approach the berms slowly.
    McGauley’s accident occurred around 4:45 a.m. on June 9,
    2011. By June 9, the road had been built 6 to 7 feet. While
    backing up to dump a load of rock, McGauley drove off the
    road onto the shoulder. The shoulder collapsed, and the truck
    flipped upside down into the floodwaters below. McGauley
    drowned. Because of the work being conducted on that part
    of road, there was no berm where McGauley’s accident
    occurred.
    The County was not involved in the effort to build up
    CR P30. No one from the County provided instruction, assist­
    ance, or supervision. Following the June 6, 2011, meeting
    wherein the County granted the oral easement for Marietta
    to build up CR P30, the Superintendent considered the mat-
    ter “out of [her] hands.” Nevertheless, she admitted that the
    County remained responsible for maintaining CR P30. She
    acknowledged that the County had previously exercised its
    municipal authority to clarify that it controlled CR P30 to
    Marietta’s predecessor.
    At trial, the Superintendent testified that she visited the
    worksite twice and recognized that the construction of CR P30
    did not meet County standards. She also testified that a road
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    McGAULEY v. WASHINGTON COUNTY
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    297 Neb. 134
    foreman for the County went to the worksite to observe, but
    that she did not send him and he was not involved in the work.
    The Superintendent testified that the County did not put any
    lighting, warning signs, or reflective delineators on the work-
    site during the week of June 6, 2011.
    After McGauley’s death, the personal representative of
    his estate, Dawn McGauley, brought a wrongful death action
    against Marietta and the County. The County raised sov-
    ereign immunity as an affirmative defense and brought a
    cross-claim against Marietta. After a bench trial exclusively
    on the issue of sovereign immunity, the district court ruled
    that the discretionary function exception of the PSTCA
    applied, and therefore, the County had sovereign immunity.
    The district court dismissed the County’s cross-claim against
    Marietta. The personal representative of McGauley’s estate
    now appeals.
    ASSIGNMENT OF ERROR
    The personal representative of McGauley’s estate assigns,
    combined and restated, that the district court erred in dis-
    missing her claims against the County on the ground that the
    County was protected by sovereign immunity.
    STANDARD OF REVIEW
    [1] A district court’s findings of fact in a proceeding under
    the PSTCA will not be set aside unless such findings are
    clearly erroneous.2
    [2] To the extent that the meaning and interpretation of
    statutes and regulations are involved, questions of law are
    presented, in connection with which an appellate court has an
    obligation to reach an independent conclusion irrespective of
    the decision made by the court below.3
    2
    See Mix v. City of Lincoln, 
    244 Neb. 561
    , 
    508 N.W.2d 549
    (1993).
    3
    Cotton v. State, 
    281 Neb. 789
    , 
    810 N.W.2d 132
    (2011).
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    Nebraska Supreme Court A dvance Sheets
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    McGAULEY v. WASHINGTON COUNTY
    Cite as 
    297 Neb. 134
    ANALYSIS
    [3] The PSTCA provides limited waivers of sovereign
    immunity, which are subject to statutory exceptions.4 If a
    statutory exception applies, the claim is barred by sovereign
    immunity.5
    [4,5] Here, we are concerned with the statutory excep-
    tion provided by § 13-910(2), which is commonly known
    as the discretionary function exception. Under that excep-
    tion, the PSTCA shall not apply to “[a]ny claim based upon
    the exercise or performance of or the failure to exercise or
    perform a discretionary function or duty on the part of the
    political subdivision or an employee of the political subdi-
    vision, whether or not the discretion is abused.”6 We have
    said that the discretionary function exception extends only to
    basic policy decisions made in governmental activity at the
    operational level, and not to ministerial activities implement-
    ing such policy decisions.7 The purpose of the discretionary
    function exception is to prevent judicial “second-guessing”
    of legislative and administrative decisions grounded in social,
    economic, and political policy through the medium of an
    action in tort.8
    [6] To determine whether the discretionary function excep-
    tion applies, we have set out a two-step analysis.9 First, the
    court must consider whether the action is a matter of choice
    for the acting employee.10 Second, if the court concludes
    that the challenged conduct involves an element of judg-
    ment, it must then determine whether that judgment is of the
    4
    Shipley v. Department of Roads, 
    283 Neb. 832
    , 
    813 N.W.2d 455
    (2012).
    5
    Id.
    6
    § 13-910(2).
    7
    See Shipley, supra note 4.
    8
    Kimminau v. City of Hastings, 
    291 Neb. 133
    , 
    864 N.W.2d 399
    (2015).
    9
    
    Id. 10 Id.
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    Nebraska Supreme Court A dvance Sheets
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    McGAULEY v. WASHINGTON COUNTY
    Cite as 
    297 Neb. 134
    kind that the discretionary function exception was designed
    to shield.11
    [7,8] Here, a third step is also involved. The personal rep-
    resentative of McGauley’s estate contends that the County had
    a nondiscretionary duty to provide a safe work environment.
    We have held that the discretionary function exception does
    not apply when the governmental entity has a “‘nondiscretion-
    ary duty to warn . . . or take other protective measures that
    may prevent injury as the result of the dangerous condition or
    hazard.’”12 Such a duty exists when
    “(1) a governmental entity has actual or constructive
    notice of a dangerous condition or hazard caused by or
    under the control of the governmental entity and (2) the
    dangerous condition or hazard is not readily apparent to
    persons who are likely to be injured by the dangerous
    condition or hazard . . . .”13
    Turning to the first step in determining whether the dis-
    cretionary function exception applies, we conclude that the
    challenged conduct at issue here involves an element of judg-
    ment at the policymaking level. When confronted with the
    emergency situation of the flooding, and in light of its lack
    of resources, the County was effectively forced to choose
    between two less-than-ideal options: It could either (1) allow
    CR P30 to flood and Marietta to go out of business or (2) grant
    Marietta an easement and allow Marietta to use its resources to
    build up CR P30. The County chose the latter option.
    Turning to the second step, we conclude that the judgment
    discussed above is clearly the kind that the discretionary
    function exception was designed to shield. The County’s deci-
    sion to allow Marietta to build up CR P30 involved balancing
    the competing needs of commerce, retaining access to sup-
    plies needed to combat the flood in other areas, and flood
    11
    
    Id. 12 Shipley,
    supra note 
    4, 283 Neb. at 846
    , 813 N.W.2d at 466.
    13
    
    Id. at 845-46,
    813 N.W.2d at 465-66.
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    McGAULEY v. WASHINGTON COUNTY
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    297 Neb. 134
    and road safety—all of which the County had to balance in
    light of the emergency situation and its limited resources.
    This decision was clearly the type of economic, political, and
    social policy judgment that the discretionary function excep-
    tion was designed to shield.14
    Although the personal representative of McGauley’s estate
    concedes that the decision to allow Marietta to build up the
    road was a judgment that fell within the discretionary function
    exception to the PSTCA, she argues that the County’s deci-
    sions not to supervise Marietta’s work and not to enforce its
    own safety standards on Marietta were separate judgments that
    did not fall within the exception. We disagree.
    The district court found, and the evidence supports, that the
    County did not have the resources to assist Marietta with the
    buildup. Supervising Marietta’s work and enforcing its own
    safety standards on Marietta were simply not options for the
    County. Thus, to the extent that any decision was made not to
    supervise Marietta or enforce safety standards, it was part of
    the County’s overall policymaking decision to allow Marietta
    to build up the road. Accordingly, the argument of the per-
    sonal representative of McGauley’s estate argument that these
    decisions were separate, nondiscretionary judgments is with-
    out merit.
    Finally, we turn to the third step in our analysis: whether the
    County had a nondiscretionary duty to provide a safe working
    environment on CR P30. As noted above, a nondiscretionary
    duty to warn or take other protective measures exists when (1)
    the governmental entity has notice of a dangerous condition
    or hazard caused by or under the control of the governmental
    entity and (2) the dangerous condition or hazard is not read-
    ily apparent to persons likely to be injured by the danger-
    ous condition.
    Here, such a duty does not exist, because regardless of
    whether the first element was met, the district court found and
    14
    See McCormick v. City of Norfolk, 
    263 Neb. 693
    , 
    641 N.W.2d 638
    (2002).
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    McGAULEY v. WASHINGTON COUNTY
    Cite as 
    297 Neb. 134
    we agree that the second element was clearly not met: The dan-
    gerous conditions present on CR P30 were not readily apparent
    to persons likely to be injured, i.e., the construction work-
    ers. As the district noted, Marietta workers were the persons
    likely to be injured by the dangerous conditions, and Marietta
    warned its workers of those conditions at safety meetings on
    several occasions prior to McGauley’s accident. The evidence
    shows that at the safety meetings, drivers such as McGauley
    were specifically warned to stay off the soft shoulders and to
    approach them slowly. The workers were also trained to oper-
    ate the heavy equipment safely, including driving slowly when
    required, using signals to communicate with other operators,
    and keeping proper lookout for hazards.
    McGauley was also personally aware of the dangerous con-
    ditions. Not only had McGauley backed up and unloaded his
    dump truck dozens of times already on CR P30, but McGauley
    had attended the safety meetings where the warnings were
    given. The district court found that on the morning of the acci-
    dent, McGauley had attended a safety meeting, wherein he was
    warned to keep equipment in the center of the road.
    Given the evidence set forth above, the district court found
    that “the dangerous conditions presented by the CR P30 con-
    struction project . . . were readily apparent to the . . . Marietta
    workers, including . . . McGauley.” Because of the evidence
    supporting this factual finding, we cannot say that such find-
    ing was clearly erroneous. Therefore, the County did not
    have a nondiscretionary duty to take protective measures, and
    McGauley’s assignment of error is without merit.
    CONCLUSION
    We find that the County’s decision to allow Marietta to build
    up the road was a discretionary function, not subject to the
    PSTCA. Therefore, the County has sovereign immunity, and
    the district court’s order dismissing McGauley’s claims against
    it is hereby affirmed.
    A ffirmed.
    

Document Info

Docket Number: S-16-897

Citation Numbers: 297 Neb. 134

Filed Date: 7/7/2017

Precedential Status: Precedential

Modified Date: 9/22/2017