Clark v. Sargent Irr. Dist. , 311 Neb. 123 ( 2022 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/20/2022 08:07 AM CDT
    - 123 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    Donald Clark and Kimberly Clark,
    appellees, v. Sargent Irrigation District,
    a political subdivision, and Doug Kriss,
    an employee of Sargent Irrigation
    District, appellants.
    ___ N.W.2d ___
    Filed March 11, 2022.    No. S-21-288.
    1. Political Subdivisions Tort Claims Act: Appeal and Error. Whether
    a plaintiff’s negligence claims are precluded by an exemption to the
    Political Subdivisions Tort Claims Act is a question of law for which
    an appellate court has a duty to reach its conclusions independent of the
    conclusions reached by the district court.
    2. Summary Judgment: Appeal and Error. An appellate court reviews
    the district court’s ruling on a motion for summary judgment de novo,
    viewing the record in the light most favorable to the nonmoving party
    and drawing all reasonable inferences in that party’s favor.
    3. Jurisdiction: Appeal and Error. Before reaching the legal issues
    presented for review, it is the duty of an appellate court to determine
    whether it has jurisdiction over the matter before it, irrespective of
    whether the issue is raised by the parties.
    4. Summary Judgment: Final Orders: Legislature: Appeal and Error.
    The general rule is that an order denying summary judgment is not a
    final, appealable order. But the Legislature carved out a limited excep-
    tion to this general rule when it enacted 
    Neb. Rev. Stat. § 25-1902
    (1)(d)
    (Cum. Supp. 2020) to create a new category of final orders for purposes
    of appeal.
    5. Statutes: Legislature: Intent. To discern the meaning of a statute,
    courts must determine and give effect to the purpose and intent of
    the Legislature as ascertained from the entire language of the statute
    considered in its plain, ordinary, and popular sense; it is the court’s
    duty to discover, if possible, the Legislature’s intent from the statutory
    text itself.
    - 124 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    6. Statutes: Legislature. When the Legislature uses legal terms of art in
    statutes, such terms should be construed and understood according to
    their accepted legal meaning.
    7. Summary Judgment: Final Orders: Immunity. The plain text of 
    Neb. Rev. Stat. § 25-1902
    (1)(d) (Cum. Supp. 2020) sets out two requirements
    which must be satisfied for an order to be final: (1) The order must
    deny a motion for summary judgment, and (2) the summary judgment
    motion must be based on either the assertion of sovereign immunity or
    the immunity of a government official.
    8. Immunity: Words and Phrases. “Sovereign immunity” is a legal term
    of art referring to the common-law doctrine of sovereign immunity.
    Under that doctrine, a state’s immunity from suit is recognized as a fun-
    damental aspect of sovereignty.
    9. Immunity: Jurisdiction. The doctrine of sovereign immunity is, by its
    nature, jurisdictional.
    10. Immunity: Constitutional Law: States: Political Subdivisions:
    Legislature. The sovereign immunity of the State and its political sub-
    divisions is preserved in Neb. Const. art. V, § 22. This constitutional
    provision is not self-executing, and no suit may be maintained against
    the State or its political subdivisions unless the Legislature, by law, has
    so provided.
    11. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
    Waiver: Legislature. Through enactment of the Political Subdivisions
    Tort Claims Act and the State Tort Claims Act, the Legislature has
    allowed a limited waiver of sovereign immunity with respect to some,
    but not all, types of tort claims.
    12. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
    Waiver: Jurisdiction: Dismissal and Nonsuit. Both the State Tort
    Claims Act and the Political Subdivisions Tort Claims Act expressly
    exempt certain claims from the limited waiver of sovereign immunity.
    And because the statutory exemptions identify those tort claims for
    which the sovereign retains immunity from suit, when an exemption
    applies, the proper remedy is to dismiss the claim for lack of subject
    matter jurisdiction.
    13. Political Subdivisions Tort Claims Act: Tort Claims Act: Summary
    Judgment: Immunity: Final Orders. When a motion for summary
    judgment asserts that the plaintiff’s claim falls within one or more
    of the statutory exemptions under the State Tort Claims Act or the
    Political Subdivisions Tort Claims Act, the motion is based on the
    assertion of sovereign immunity within the meaning of 
    Neb. Rev. Stat. § 25-1902
    (1)(d) (Cum. Supp. 2020).
    - 125 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    14. States: Political Subdivisions: Immunity. The doctrine of sovereign
    immunity is not implicated by every affirmative defense which may be
    available to a State or political subdivision in response to a lawsuit.
    15. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
    Notice: Jurisdiction. The presuit claim procedures under the Political
    Subdivisions Tort Claims Act and the State Tort Claims Act are not stat-
    utes in derogation of sovereign immunity, but, rather, they are admin-
    istrative in nature, intended to give the government notice of a recent
    tort claim so that it can investigate and, if appropriate, resolve the claim
    before suit is commenced. The presuit claim presentment requirements
    are procedural conditions precedent to commencing a tort action against
    the government in district court; they are not jurisdictional.
    16. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
    Jurisdiction. A plaintiff’s failure to comply with the presuit claim
    procedures may be asserted as an affirmative defense to avoid liability
    in an action brought under the State Tort Claims Act or the Political
    Subdivisions Tort Claims Act, but the administrative requirements are
    not jurisdictional and do not bear directly on the question of sover-
    eign immunity.
    17. Political Subdivisions Tort Claims Act: Tort Claims Act: Summary
    Judgment: Final Orders: Immunity. When the State or a ­political
    subdivision moves for summary judgment asserting the failure to com-
    ply with the presuit claim procedures of the State Tort Claims Act or
    the Political Subdivisions Tort Claims Act, the motion is not based on
    the assertion of sovereign immunity for purposes of 
    Neb. Rev. Stat. § 25-1902
    (1)(d) (Cum. Supp. 2020).
    18. Summary Judgment: Final Orders: Immunity. To satisfy the final
    order requirement under 
    Neb. Rev. Stat. § 25-1902
    (1)(d) (Cum. Supp.
    2020) based on the assertion of sovereign immunity, the motion for
    summary judgment must do more than merely reference sovereign
    immunity; the nature and substance of the motion must actually present
    a claim of sovereign immunity.
    19. Final Orders: Jurisdiction: Appeal and Error. While an appellate
    court can reverse, vacate, or modify a final order under 
    Neb. Rev. Stat. § 25-1902
    (1)(d) (Cum. Supp. 2020), it cannot address issues that do not
    bear on the correctness of the final order upon which its appellate juris-
    diction is based.
    20. Political Subdivisions Tort Claims Act: Liability. Under the discre-
    tionary function exemption of the Political Subdivisions Tort Claims
    Act, the performance or nonperformance of a discretionary function
    cannot be the basis of tort liability.
    - 126 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    21. Political Subdivisions Tort Claims Act. A court engages in a two-step
    analysis to determine whether the discretionary function exemption
    to the Political Subdivisions Tort Claims Act applies. First, the court
    must consider whether the action is a matter of choice for the acting
    employee. This inquiry is mandated by the language of the statutory
    exemption, because conduct cannot be discretionary unless it involves
    an element of judgment or choice. Second, if the court concludes that
    the challenged conduct involved an element of judgment, it must then
    determine whether that judgment is the kind the discretionary function
    exemption was designed to shield.
    22. ____. The discretionary function exemption of the Political Subdivisions
    Tort Claims Act will not apply when a statute, regulation, or policy spe-
    cifically prescribes a course of action for an employee to follow, because
    in that event, the employee has no rightful option but to adhere to the
    directive. And if the employee’s conduct cannot appropriately be the
    product of judgment or choice, then there is no discretion in the conduct
    for the discretionary function exemption to protect.
    Appeal from the District Court for Custer County: Karin L.
    Noakes, Judge. Affirmed in part, and in part dismissed.
    Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
    for appellants.
    Nicholas R. Norton and Nicholas J. Ridgeway, of Jacobsen,
    Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellees.
    Heavican, C.J., Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Stacy, J.
    In this negligence action, landowners allege that a politi-
    cal subdivision’s employee negligently mixed and overapplied
    an off-label herbicide mixture, causing damage to their corn
    crop. After the district court denied the political subdivi-
    sion’s motion for summary judgment, the political ­subdivision
    filed this interlocutory appeal pursuant to 
    Neb. Rev. Stat. § 25-1902
    (1)(d) (Cum. Supp. 2020), assigning two primary
    errors. We conclude that § 25-1902(1)(d) confers appellate
    jurisdiction to review one of the assigned errors, but not the
    - 127 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    other. We therefore dismiss that portion of the appeal over
    which we lack jurisdiction, and we otherwise affirm.
    BACKGROUND
    The Sargent Irrigation District (SID) is a political sub-
    division in Custer County, Nebraska. On July 3, 2019, SID
    employee Doug Kriss prepared a mixture of herbicides and
    sprayed it on several trees along a canal. At the time, Kriss
    was licensed as a noncommercial applicator under Nebraska’s
    Pesticide Act. 1
    Donald Clark and Kimberly Clark own property in Custer
    County near the canal where Kriss sprayed the herbicide mix-
    ture. In July 2019, the Clarks began to notice damage to their
    corn crop. They suspected the damage was caused by the her-
    bicide mixture used by Kriss.
    On June 29, 2020, the Clarks’ attorney submitted a writ-
    ten claim to the SID pursuant to the Political Subdivisions
    Tort Claims Act (PSTCA). 2 The claim alleged that on July 3,
    2019, Kriss prepared a herbicide mixture using “one quart of
    2-4-D, one cup of crop oil, and 25 gallons of water.” Kriss
    then added this mixture to a tank which had not been prop-
    erly rinsed out from a prior use and contained “approximately
    three gallons” of Roundup herbicide. The claim described
    this as an “improper mixture of herbicides,” and it alleged
    that Kriss then overapplied the mixture to the trees along the
    canal. When the Clarks noticed damage to their corn, they
    obtained opinions from two agronomists that the crop damage
    was caused by “the off-label application and overapplication
    of a herbicide” mixture by the SID, which drifted onto the
    Clarks’ property causing damage to 9,673 bushels of corn.
    Attached to the claim was a written statement signed by Kriss
    and the SID’s general manager. The statement admitted that
    the sprayer Kriss used to apply the herbicide mixture had not
    1
    
    Neb. Rev. Stat. §§ 2-2622
     to 2-2659 (Reissue 2012 & Cum. Supp. 2020).
    2
    
    Neb. Rev. Stat. § 13-901
     et seq. (Reissue 2012 & Cum. Supp. 2020).
    - 128 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    been properly rinsed out before use and that as a result, the
    herbicide mixture applied to the trees contained 3 gallons of
    Roundup. The statement also acknowledged that Kriss may
    have overapplied the mixture.
    On July 7, 2020, the SID’s board of directors held a regu-
    lar monthly meeting. The minutes from the SID board meet-
    ing state:
    [The SID’s general manager] presented a letter from the
    [SID’s attorney] with a legal recommendation at this
    time not to settle with [the] Clark[s] on the claim and
    not to overrule the opinion of the insurance adjuster.
    [It was] moved and seconded . . . to follow the [SID’s]
    attorney’s recommendation on the Clark claim. . . . The
    motion carried.
    On September 1, 2020, the Clarks filed this negligence
    action against the SID and Kriss in the district court for Custer
    County. The complaint alleged that Kriss, acting in his capac-
    ity as an employee of the SID, was negligent in (1) using an
    off-label mixture of “2-4-D” and Roundup which was “not in
    accordance with the herbicides’ label instructions,” (2) over­
    applying the off-label mixture, and (3) failing to apply the mix-
    ture in a reasonable and prudent manner. It alleged the SID was
    vicariously liable for Kriss’ negligence and was independently
    negligent for failing to properly train and supervise Kriss. The
    complaint alleged that before filing suit, the Clarks submitted
    a written claim to the SID on June 29, 2020, and that the SID
    made a final disposition denying the claim on July 7.
    The SID and Kriss moved to dismiss the complaint, cit-
    ing two grounds: (1) The Clarks “fail[ed] to comply with the
    requirements of the [PSTCA],” and (2) the Clarks’ claims
    “fall within the discretionary function or duty exception to
    the [PSTCA].” The motion to dismiss was later converted to a
    motion for summary judgment.
    At the hearing on the motion, three exhibits were offered
    and received without objection. The defense offered the
    - 129 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    affidavit of the SID’s manager, which had as an attachment a
    copy of the minutes from the July 7, 2020, SID board meet-
    ing. The Clarks offered two exhibits: (1) a certified copy of
    their complaint with attachments and (2) an affidavit from the
    Clarks’ attorney attaching a copy of Kriss’ license as a non-
    commercial pesticide applicator.
    After receiving the evidence, the court heard arguments from
    the parties. Defense counsel’s primary argument was that the
    Clarks’ claim was barred by the PSTCA’s discretionary function
    exemption. 3 In response, the Clarks argued that the discretion-
    ary function exemption was inapplicable because Nebraska’s
    Pesticide Act did not give the SID or Kriss discretion to mix,
    use, or apply herbicides in a manner inconsistent with its label-
    ing. The court took the matter under advisement.
    In an order entered March 8, 2021, the court denied the
    motion for summary judgment. It limited its analysis to the
    applicability of the discretionary function exemption, finding
    that the SID and Kriss had abandoned any other theory. The
    court concluded that the SID and Kriss were not entitled to
    summary judgment based on the discretionary function exemp-
    tion, citing to § 2-2643.01 of Nebraska’s Pesticide Act, which
    provides in relevant part:
    A license holder shall not:
    (1) Make a pesticide recommendation or use a pesticide
    in a manner inconsistent with the pesticide’s labeling or
    with the restrictions on the use of the pesticide imposed
    by the state, the federal agency, or the federal act;
    (2) Operate in a faulty, careless, or negligent manner.
    Relying on this statute, and noting there was no factual dispute
    that Kriss was a license holder under Nebraska’s Pesticide Act
    or that he had overapplied an off-label herbicide mixture, the
    court reasoned:
    The discretionary function exemption does not apply
    when a statute, regulation or policy specifically describes
    3
    See § 13-910(2).
    - 130 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    a course of action. [Section 2-2643.01] prescribes a spe-
    cific course of action. It requires license holders to use
    a pesticide only according to its labeling. The law does
    not allow a choice for Kriss and the challenged conduct
    does not involve an element of judgment. Kriss was not
    allowed to violate the statute.
    The court therefore concluded that Kriss’ conduct in improp-
    erly mixing and overapplying the herbicide mixture did not fall
    within the discretionary function exemption, and it denied the
    summary judgment motion. The SID and Kriss filed this timely
    appeal, which we moved to our docket on our own motion. For
    ease of reference, the remainder of our opinion will refer to the
    appellants collectively as “the SID.”
    ASSIGNMENTS OF ERROR
    The SID assigns, consolidated and restated, that the dis-
    trict court erred in denying its motion for summary judgment,
    because (1) the discretionary function exemption applies to bar
    the Clarks’ claims and (2) the Clarks did not comply with the
    “final disposition” requirements of the PSTCA.
    STANDARD OF REVIEW
    [1] Whether a plaintiff’s negligence claims are precluded by
    an exemption to the PSTCA is a question of law for which an
    appellate court has a duty to reach its conclusions independent
    of the conclusions reached by the district court. 4
    [2] An appellate court reviews the district court’s ruling on a
    motion for summary judgment de novo, viewing the record in
    the light most favorable to the nonmoving party and drawing
    all reasonable inferences in that party’s favor. 5
    4
    Mercer v. North Central Serv., 
    308 Neb. 224
    , 
    953 N.W.2d 551
     (2021).
    5
    See Waldron v. Roark, 
    298 Neb. 26
    , 
    902 N.W.2d 204
     (2017). Accord
    Holloway v. State, 
    293 Neb. 12
    , 
    875 N.W.2d 435
     (2016) (appellate court
    reviews de novo whether party is entitled to dismissal of claim based on
    immunity, drawing all reasonable inferences for nonmoving party).
    - 131 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    ANALYSIS
    Appellate Jurisdiction
    [3] Before reaching the legal issues presented for review, it
    is the duty of an appellate court to determine whether it has
    jurisdiction over the matter before it, irrespective of whether
    the issue is raised by the parties. 6
    [4] The SID seeks interlocutory appellate review of an order
    denying a motion for summary judgment. The general rule is
    that an order denying summary judgment is not a final, appeal-
    able order. 7 But in 2019, in response to our opinion in E.D. v.
    Bellevue Pub. Sch. Dist., 8 the Legislature carved out a limited
    exception to this general rule and amended § 25-1902 to cre-
    ate a new category of final orders for purposes of appeal. 9
    Under § 25-1902(1)(d), a final order now includes “[a]n order
    denying a motion for summary judgment when such motion is
    based on the assertion of sovereign immunity or the immunity
    of a government official.”
    We have issued three opinions relying on § 25-1902(1)(d)
    as the basis for our appellate jurisdiction: Great Northern Ins.
    Co. v. Transit Auth. of Omaha (Great Northern II ), 10 Mercer v.
    North Central Serv., 11 and Great Northern Ins. Co. v. Transit
    Auth. of Omaha (Great Northern I ). 12 In each case, the parties
    characterized the summary judgment motion at issue as being
    6
    Cattle Nat. Bank & Trust Co. v. Watson, 
    293 Neb. 943
    , 
    880 N.W.2d 906
    (2016).
    7
    See, e.g., Carney v. Miller, 
    287 Neb. 400
    , 
    842 N.W.2d 782
     (2014).
    8
    E.D. v. Bellevue Pub. Sch. Dist., 
    299 Neb. 621
    , 
    909 N.W.2d 652
     (2018)
    (overruling prior cases which relied on collateral order doctrine to autho­
    rize interlocutory appeals from orders denying sovereign immunity).
    9
    See 2019 Neb. Laws, L.B. 179, § 1.
    10
    Great Northern Ins. Co. v. Transit Auth. of Omaha, 
    308 Neb. 916
    , 
    958 N.W.2d 378
     (2021).
    11
    Mercer, 
    supra note 4
    .
    12
    Great Northern Ins. Co. v. Transit Auth. of Omaha, 
    305 Neb. 609
    , 
    941 N.W.2d 497
     (2020).
    - 132 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    based on the assertion of sovereign immunity, and no one
    challenged that characterization. Consequently, we have not
    yet analyzed the circumstances under which a summary judg-
    ment motion will satisfy the requirements of § 25-1902(1)(d).
    We consider that question now as it regards “the assertion
    of sovereign immunity,” and we ultimately conclude that
    § 25-1902(1)(d) applies more narrowly than our prior opinions
    might suggest.
    [5,6] Before turning to the language of the statute, we
    review familiar principles of statutory construction. To discern
    the meaning of a statute, courts must determine and give effect
    to the purpose and intent of the Legislature as ascertained from
    the entire language of the statute considered in its plain, ordi-
    nary, and popular sense; it is our duty to discover, if possible,
    the Legislature’s intent from the statutory text itself. 13 When
    the Legislature uses legal terms of art in statutes, such terms
    should be construed and understood according to their accepted
    legal meaning. 14
    [7] The plain text of § 25-1902(1)(d) sets out two require-
    ments which must be satisfied for an order to be final: (1) The
    order must deny a motion for summary judgment, and (2) the
    summary judgment motion must be based on either “the asser-
    tion of sovereign immunity” or “the immunity of a government
    official.” In this interlocutory appeal, there is no question the
    district court’s order denied the SID’s motion for summary
    judgment. And because no party contends the SID’s motion
    was based on “the immunity of a governmental official,” our
    appellate jurisdiction turns on whether the SID’s motion was
    based on “the assertion of sovereign immunity.” We limit our
    statutory analysis accordingly.
    [8,9] “Sovereign immunity” is a legal term of art referring
    to the common-law doctrine of sovereign immunity. Under
    13
    See State v. Hofmann, 
    310 Neb. 609
    , 
    967 N.W.2d 435
     (2021).
    14
    See, Seivert v. Alli, 
    309 Neb. 246
    , 
    959 N.W.2d 777
     (2021); State ex rel.
    Peterson v. Creative Comm. Promotions, 
    302 Neb. 606
    , 
    924 N.W.2d 664
    (2019).
    - 133 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    that doctrine, a state’s immunity from suit is recognized as a
    fundamental aspect of sovereignty. 15 The doctrine of sovereign
    immunity is, by its nature, jurisdictional. 16
    [10] The sovereign immunity of the State and its political
    subdivisions is preserved in Neb. Const. art. V, § 22, which
    provides: “The state may sue and be sued, and the Legislature
    shall provide by law in what manner and in what courts suits
    shall be brought.” We have long held that this constitutional
    provision is not self-executing and that no suit may be main-
    tained against the State or its political subdivisions unless the
    Legislature, by law, has so provided. 17
    [11,12] Through enactment of the PSTCA and the State
    Tort Claims Act (STCA), the Legislature has allowed a lim-
    ited waiver of sovereign immunity with respect to some, but
    not all, types of tort claims. 18 Both the STCA and the PSTCA
    expressly exempt certain claims from the limited waiver of
    sovereign immunity. 19 And because the statutory exemptions
    identify those tort claims for which the sovereign retains
    immunity from suit, we have long held that when an exemption
    under the STCA or the PSTCA applies, the proper remedy is to
    dismiss the claim for lack of subject matter jurisdiction. 20
    [13] As such, we hold that when a motion for summary judg-
    ment asserts that the plaintiff’s claim falls within one or more
    of the statutory exemptions under the STCA or the PSTCA, the
    motion is based on the assertion of sovereign immunity within
    the meaning of § 25-1902(1)(d).
    15
    See, Burke v. Board of Trustees, 
    302 Neb. 494
    , 
    924 N.W.2d 304
     (2019);
    State ex rel. Rhiley v. Nebraska State Patrol, 
    301 Neb. 241
    , 
    917 N.W.2d 903
     (2018).
    16
    Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
     (2017).
    17
    E.g., Edwards v. Douglas County, 
    308 Neb. 259
    , 
    953 N.W.2d 744
     (2021).
    18
    See 
    id.
    19
    See, § 13-910 (setting out claims exempt from PSTCA); 
    Neb. Rev. Stat. § 81-8
    ,219 (Cum. Supp. 2020) (setting out claims exempt from STCA).
    20
    See Edwards, 
    supra note 17
    .
    - 134 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    [14,15] But the doctrine of sovereign immunity is not impli-
    cated by every affirmative defense which may be available to
    a State or political subdivision in response to a lawsuit. An
    example of this can be found in the presuit claim presentment
    requirements under both the STCA and the PSTCA. 21 A State
    or political subdivision can seek dismissal of a tort action for
    failing to comply with these administrative requirements, 22 but
    as we explained in Saylor v. State, 23 the presuit claim proce-
    dures do not implicate either sovereign immunity or subject
    matter jurisdiction:
    The presuit claim procedures under the PSTCA and
    the STCA are not statutes in derogation of sovereign
    immunity, but, rather, they are administrative in nature,
    intended to give the government notice of a recent tort
    claim so [that] it can investigate and, if appropriate,
    resolve the claim before suit is commenced. Unlike stat-
    utes in derogation of sovereign immunity, the presuit
    claim procedures do not identify the particular tort claims
    for which the State has conditionally waived its sover-
    eign immunity and consented to suit, nor do they identify
    the tort claims the State has exempted from that waiver.
    Instead, the presuit claim presentment requirements are
    procedural conditions precedent to commencing a tort
    action against the government in district court; they are
    not jurisdictional.
    [16] Our recent cases illustrate that while a plaintiff’s fail-
    ure to comply with the presuit claim procedures may be
    asserted as an affirmative defense to avoid liability in an action
    brought under the STCA or the PSTCA, 24 the administrative
    21
    § 13-905 (setting out presuit claim presentment requirements under
    PSTCA); 
    Neb. Rev. Stat. § 81-8
    ,212 (Reissue 2014) (setting out presuit
    claim presentment requirements under STCA).
    22
    See, e.g., Great Northern II, supra note 10.
    23
    Saylor v. State, 
    306 Neb. 147
    , 162-63, 
    944 N.W.2d 726
    , 736-37 (2020).
    24
    See Great Northern II, supra note 10.
    - 135 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    r­ equirements are not jurisdictional, 25 and thus do not bear
    directly on the question of sovereign immunity. 26
    [17] As such, we hold that when the State or a political sub-
    division moves for summary judgment asserting the failure to
    comply with the presuit claim procedures of the STCA or the
    PSTCA, the motion is not “based on the assertion of sovereign
    immunity” for purposes of § 25-1902(1)(d). We acknowledge
    there is tension between this holding and our recent opinions
    in Great Northern I 27 and Great Northern II. 28
    In Great Northern I, the city moved for summary judgment,
    asserting the plaintiff had not complied with the notice require-
    ments under the PSTCA. The district court denied summary
    judgment, and the city appealed from that ruling, arguing that
    because the presuit notice requirements were not met, the city
    “never waived sovereign immunity.” 29 The Nebraska Court
    of Appeals summarily dismissed the appeal after concluding
    the order denying summary judgment was interlocutory and
    thus not a final order. We granted further review to consider
    the city’s contention that the recent amendments to § 25-1902
    rendered the order denying summary judgment a final, appeal-
    able order.
    In Great Northern I, no one challenged the city’s contention
    that the failure to comply with the presuit notice requirements
    implicated sovereign immunity, and we did not examine that
    issue. We focused instead on the issue presented, which was
    whether the new final order provisions in § 25-1902(1)(d) rep-
    resented a substantive or a procedural change to that statute.
    We concluded the statutory changes were procedural in nature,
    and thus governed all appeals pending on and after the effec-
    tive date of the statutory amendment. Because the city had
    25
    Id.; Saylor, 
    supra note 23
    .
    26
    
    Id.
    27
    Great Northern I, supra note 12.
    28
    Great Northern II, supra note 10.
    29
    Great Northern I, supra note 12, 
    305 Neb. at 611
    , 941 N.W.2d at 499.
    - 136 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    filed its notice of appeal after the effective date of the statute,
    we concluded the new final order provisions governed the
    appeal; we therefore reversed the Court of Appeals’ dismissal
    and remanded the matter for further appellate proceedings.
    Once the appellate briefs were submitted, we moved the case
    back to our docket, resulting in our decision on the merits in
    Great Northern II. 30
    But we did not examine, in either Great Northern I or
    Great Northern II, whether the city had correctly character-
    ized its summary judgment motion as one which was based
    on the assertion of sovereign immunity. In retrospect, and
    with the benefit of our analysis in Saylor, which was decided
    2 months after Great Northern I, it is apparent that despite
    the city’s characterization, its motion did not actually assert a
    claim of sovereign immunity, but, rather, asserted the affirma-
    tive defense that plaintiffs had not complied with the presuit
    notice procedures. Thus, to the extent either Great Northern
    I or Great Northern II can be read to suggest that a motion
    for summary judgment based on the failure to comply with
    the PSTCA’s presuit procedures is one “based on the assertion
    of sovereign immunity” for purposes of § 25-1902(1)(d), that
    reading is expressly disapproved. 31
    [18] We now hold that to satisfy the final order requirement
    under § 25-1902(1)(d) based on the assertion of sovereign
    immunity, the motion for summary judgment must do more
    than merely reference sovereign immunity; the nature and sub-
    stance of the motion must actually present a claim of sovereign
    immunity. To hold otherwise would permit litigants to create
    appellate jurisdiction simply by casting their claim as one
    implicating sovereign immunity.
    Applying the foregoing jurisdictional analysis to the pres-
    ent interlocutory appeal, we conclude that one of the SID’s
    30
    Great Northern II, supra note 10.
    31
    See Saylor, 
    supra note 23
    .
    - 137 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    assigned errors is reviewable under § 25-1902(1)(d), but the
    other is not. We have appellate jurisdiction to review the SID’s
    assignment that the court erred in denying summary judgment
    based on the applicability of the discretionary function exemp-
    tion, because that aspect of the SID’s motion was based on the
    assertion of sovereign immunity.
    [19] But the SID also assigns error to the court’s refusal to
    grant summary judgment based on a failure to comply with
    the “final disposition” requirement under the PSTCA. That
    procedural requirement is found in § 13-906 and is one of the
    presuit claim procedures under the PSTCA. 32 In their appel-
    late briefing, the parties dispute whether the SID even raised
    the final disposition issue before the district court. We do not
    address that issue, however, because even if the issue was
    properly presented, we would lack jurisdiction to review it
    under § 25-1902(1)(d). As already discussed, summary judg-
    ment motions asserting the failure to comply with the presuit
    claim procedures are not “based on the assertion of sovereign
    immunity” for purposes of § 25-1902(1)(d). While an appel-
    late court can reverse, vacate, or modify a final order under
    § 25-1902(1)(d), it cannot address issues that do not bear on
    the correctness of the final order upon which its appellate juris-
    diction is based. 33
    We therefore dismiss the SID’s second assignment of error
    for lack of appellate jurisdiction and limit our interlocutory
    appellate review to a single issue: whether the district court
    erred in denying the SID’s summary judgment motion based on
    the discretionary function exemption.
    No Error in Denying Summary Judgment Based
    on Discretionary Function Exemption
    In connection with its summary judgment motion, the SID
    did not dispute that Kriss mixed or combined herbicides
    32
    See id.
    33
    State v. Loyd, 
    269 Neb. 762
    , 
    696 N.W.2d 860
     (2005).
    - 138 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    in a manner inconsistent with their labels. Nor did it dispute
    that he overapplied the off-label mixture when spraying the
    trees. Instead, the SID argued that Kriss “ha[d] discretion with
    regard to [the] use of herbicides” 34 and therefore, the discre-
    tionary function exemption barred the Clarks’ claims.
    [20] Under the discretionary function exemption, the
    PSTCA shall not apply to “[a]ny claim based upon the exer-
    cise or performance of or the failure to exercise or perform a
    discretionary function or duty on the part of the political sub-
    division or an employee of the political subdivision, whether
    or not the discretion is abused.” 35 We have explained that
    under this exemption, the performance or nonperformance of
    a discretionary function cannot be the basis of liability under
    the PSTCA. 36
    [21] A court engages in a two-step analysis to determine
    whether the discretionary function exemption to the PSTCA
    applies. 37 First, the court must consider whether the action is a
    matter of choice for the acting employee. 38 We have said this
    inquiry is mandated by the language of the statutory exemp-
    tion, because conduct cannot be discretionary unless it involves
    an element of judgment or choice. 39 Second, if the court con-
    cludes that the challenged conduct involved an element of
    judgment, it must then determine whether that judgment is
    34
    Brief for appellants at 14.
    35
    § 13-910(2).
    36
    See Jasa v. Douglas County, 
    244 Neb. 944
    , 
    510 N.W.2d 281
     (1994). See,
    also, Holloway, 
    supra note 5
     (state actor’s performance or nonperformance
    of discretionary function cannot be basis for liability under STCA).
    37
    Mercer, 
    supra note 4
    .
    38
    
    Id.
    39
    See Jasa, 
    supra note 36
    . See, also, Berkovitz v. United States, 
    486 U.S. 531
    , 
    108 S. Ct. 1954
    , 
    100 L. Ed. 2d 531
     (1988) (explaining that inquiring
    into whether action is matter of choice for acting employee is mandated by
    language of exception; conduct cannot be discretionary unless it involves
    element of judgment or choice).
    - 139 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    the kind the discretionary function exemption was designed
    to shield. 40
    The district court in this case denied the SID’s motion for
    summary judgment after analyzing only the first inquiry. It
    concluded the SID could not show that the challenged conduct
    of improperly mixing and overapplying an off-label herbi-
    cide involved a matter of choice or an element of judgment
    on the part of Kriss. On our de novo review, we reach the
    same conclusion.
    [22] We have recognized that the discretionary function
    exemption will not apply when a statute, regulation, or policy
    specifically prescribes a course of action for an employee to
    follow, because in that event, the employee has no rightful
    option but to adhere to the directive. 41 And if the employee’s
    conduct cannot appropriately be the product of judgment or
    choice, then there is no discretion in the conduct for the discre-
    tionary function exemption to protect. 42
    We agree with the district court’s conclusion that § 2-2643.01
    prescribes the course of conduct Kriss was required to follow
    when mixing and applying herbicides, and he thus had no
    choice or option not to adhere to that directive. The alleg-
    edly negligent conduct at issue was mixing or combining
    herbicides in a manner inconsistent with their labels, and
    then over­applying the off-label mixture. Section 2-2643.01 of
    Nebraska’s Pesticide Act expressly prohibits license holders
    like Kriss from using a pesticide “in a manner inconsistent
    with the pesticide’s labeling” and from operating in a “careless,
    or negligent manner.” The act defines “[p]esticide” to include
    any “substance or mixture of substances intended for use as a
    plant regulator, defoliant, or desiccant, including any biological
    40
    Mercer, supra note 4.
    41
    See, Jasa, 
    supra note 36
    ; Williams v. City of Lincoln, 
    27 Neb. App. 414
    ,
    
    932 N.W.2d 490
     (2019). See, also, Berkovitz, 
    supra note 39
    .
    42
    Berkovitz, 
    supra note 39
    .
    - 140 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    control agent.” 43 As such, the statutory definition of “pesticide”
    includes herbicides. The stated purpose of the act is “to regu-
    late, in the public interest, the labeling, distribution, storage,
    transportation, use, application, and disposal of pesticides for
    the protection of human health and the environment.” 44 The act
    notes that while “pesticides are valuable to our state’s agricul-
    tural production and to the protection of humans and the envi-
    ronment from insects, rodents, weeds, and other forms of life
    which may be pests,” it is “essential to the public health and the
    welfare that pesticides be regulated to prevent adverse effects
    on humans and the environment,” including “[c]rops or other
    plants [that may be] injured by improper use of pesticides.” 45
    Notably, the SID did not offer any regulation, policy, or ordi-
    nance purporting to give the SID or its employees discretion
    to mix herbicides in a manner inconsistent with the product’s
    labeling. But even if it had, Nebraska’s Pesticide Act expressly
    preempts any “ordinances and resolutions by political subdivi-
    sions that prohibit or regulate any matter relating to the . . .
    handling, use, application, or disposal of pesticides.” 46
    The district court correctly concluded that § 2-2643.01
    specifically prescribes the course of conduct to be followed
    by license holders like Kriss when mixing and applying herbi-
    cides, and as a result, Kriss had no choice but to adhere to that
    course of conduct. Because Kriss had no discretion to exercise
    with regard to the challenged conduct, the first inquiry of the
    discretionary function test could not be satisfied and the district
    court correctly denied summary judgment.
    In its appellate brief, the SID generally acknowledges that
    the Pesticide Act regulates the handling, use, and application
    of pesticides and that it prohibits license holders like Kriss
    43
    § 2-2624.
    44
    § 2-2623.
    45
    Id.
    46
    § 2-2625.
    - 141 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    from using a pesticide in a manner inconsistent with its label-
    ing. But the SID contends that the regulatory provisions of the
    Pesticide Act “are not relevant [to the discretionary function
    inquiry] unless they create private civil tort liability when they
    are violated.” 47 This contention is meritless.
    The principles of law governing whether a statute creates
    a private right of action have no direct bearing on whether
    the statute prescribes a course of conduct for purposes of the
    discretionary function inquiry. Appellate courts in this state
    have consistently looked to policy and procedure manuals, 48
    municipal ordinances, 49 and statutes 50 when deciding whether
    an actor’s conduct was a matter of choice for purposes of the
    discretionary function exemption. In none of those cases did
    it matter whether the ordinance or statute was also recognized
    as creating a private right of action. Because the provisions
    of Nebraska’s Pesticide Act governed Kriss’ conduct in mix-
    ing, using, and applying the herbicide mixture, those provi-
    sions are relevant to the discretionary function exemption
    inquiry, regardless of whether the act creates a private right
    of action.
    On this record, the district court correctly concluded that
    the SID did not, and cannot, satisfy the first inquiry under the
    47
    Brief for appellants at 16.
    48
    See, e.g., Mercer, 
    supra note 4
     (considering utility district’s procedures
    and manuals in determining whether challenged conduct involved matter
    of judgment for purposes of discretionary function exemption to PSTCA).
    49
    See, e.g., Williams, supra note 41 (considering municipal code and other
    municipal provisions to determine whether challenged conduct involved
    element of choice for purposes of discretionary function exemption
    to PSTCA).
    50
    See, e.g., Holloway, 
    supra note 5
     (analyzing statute contained in Nebraska
    Mental Health Commitment Act to determine whether challenged conduct
    involved an element of choice under discretionary function exemption
    to STCA); Kimminau v. City of Hastings, 
    291 Neb. 133
    , 
    864 N.W.2d 399
     (2015) (considering pertinent traffic statute to determine whether
    challenged conduct involved matter of discretion).
    - 142 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    CLARK v. SARGENT IRR. DIST.
    Cite as 
    311 Neb. 123
    discretionary function exemption. The SID’s motion for sum-
    mary judgment based on the discretionary function exemption
    was properly denied.
    CONCLUSION
    For the foregoing reasons, we affirm the order of the dis-
    trict court to the extent it denied summary judgment based on
    the discretionary function exemption. Because that is the only
    issue over which we have appellate jurisdiction, we dismiss the
    remainder of this appeal.
    Affirmed in part, and in part dismissed.
    Miller-Lerman, J., not participating.