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306 Nebraska Reports

LAMBERT v. LINCOLN PUBLIC SCHOOLS

Cite as 306 Neb. 192

Jena Lambert, individually and as guardian and 

next friend of Olivia Lambert, a minor, 

appellant, v. Lincoln Public 

Schools et al., appellees.

___ N.W.2d ___

Filed June 19, 2020. No. S-19-620.

1. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Political Subdivisions Tort Claims Act: Liability. Whether undisputed 

facts demonstrate that liability is precluded by the discretionary function 

exception of the Political Subdivisions Tort Claims Act is a question 

of law.

4. Jurisdiction. Whether a court has subject matter jurisdiction is a threshold issue that should be resolved prior to an examination of the merits.

5. Political Subdivisions Tort Claims Act: Dismissal and Nonsuit: 

Immunity. In cases under the Political Subdivisions Tort Claims Act, if 

the discretionary function exception applies, the political subdivision is 

immune from suit and the proper remedy is to dismiss the action for lack 

of subject matter jurisdiction.

6. Tort Claims Act: Political Subdivisions Tort Claims Act: Jurisdiction: 

Dismissal and Nonsuit. Because it presents a jurisdictional question, 

courts should determine the applicability of a statutory exception under 

the Political Subdivisions Tort Claims Act or the State Tort Claims Act 

before considering nonjurisdictional grounds for dismissal.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/21/2020 08:08 AM CDT
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LAMBERT v. LINCOLN PUBLIC SCHOOLS

Cite as 306 Neb. 192

7. Tort Claims Act: Political Subdivisions Tort Claims Act. The purpose 

of the discretionary function exception of the State Tort Claims Act and 

the Political Subdivisions Tort Claims Act is to prevent judicial “secondguessing” of legislative and administrative decisions grounded in social, 

economic, and political policy through the medium of an action in tort. 

It does not extend to the exercise of discretionary acts at an operational 

level, where there is no room for policy judgment. It is the nature of 

the conduct, rather than the status of the actor, that governs whether the 

discretionary function applies in a given case.

8. ____: ____. A two-part analysis determines whether the discretionary function exception applies. First, the court must consider whether 

the action is a matter of choice for the acting political subdivision or 

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.

Appeal from the District Court for Lancaster County: John 

A. Colborn, Judge. Affirmed.

John P. Weis, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, 

Tannehill & Hahn, L.L.P., for appellant.

Joshua J. Schauer and Haleigh B. Carlson, of Perry, Guthery, 

Haase & Gessford, P.C., L.L.O., for appellee Lincoln Public 

Schools.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

A minor child and her mother were bitten by a dog on a 

public school playground after students had been dismissed 

for the day. They filed a tort action under the Political 

Subdivisions Tort Claims Act (PSTCA) 1 generally alleging 

Lincoln Public Schools (LPS) was negligent in failing to 

enforce a policy of “no dogs” on the playground and in failing 

to supervise the playground area after classroom instruction 

ended. The district court granted LPS’ motion for summary 

1 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
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LAMBERT v. LINCOLN PUBLIC SCHOOLS

Cite as 306 Neb. 192

judgment, finding that LPS was immune from suit under the 

discretionary function exception 2 to the PSTCA and, alternatively, finding that LPS owed no legal duty under the circumstances. A timely appeal was filed, and we moved the case to 

our docket.

Because we agree LPS is immune from suit under the discretionary function exception, we affirm.

I. BACKGROUND

LPS is a political subdivision of the State of Nebraska. LPS 

operates Sheridan Elementary School (Sheridan) in Lincoln, 

Nebraska. At all relevant times, Olivia Lambert was a student 

at Sheridan.

1. Dog Bite

On April 4, 2016, Sheridan dismissed students at 3:38 p.m., 

the normal time. Olivia’s mother, Jena Lambert, waited at the 

dismissal door for Olivia to arrive, after which they walked 

to the playground area on the south side of Sheridan, where 

they joined other parents and students who were using the 

playground.

At approximately 4 p.m., Kristine A. Griffin and Brian T. 

Griffin, and their 8-year-old son, arrived at the Sheridan playground. Kristine walked the family’s dog, on a leash, on the 

city streets near the playground area. When Kristine asked 

her son to hold the leash while she cleaned up after the dog, 

he took the dog onto the Sheridan playground where Olivia 

was playing. The dog bit Olivia’s hand, and while Jena was 

attempting to help Olivia, the dog bit Jena’s abdomen.

Both Olivia and Jena were taken to a local hospital where 

they received medical care. Olivia’s injury required surgery.

2. Lawsuit

Jena, individually and as guardian and next friend of Olivia 

(collectively the Lamberts), filed this tort action against the 

Griffins and against LPS. The parties do not dispute that 

2 § 13-910(2).
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Cite as 306 Neb. 192

the Lamberts complied with the presuit notice requirements 

of the PSTCA before commencing the action. The operative amended complaint alleged the Griffins were negligent 

in not properly confining and restraining their dog, and it 

alleged LPS was negligent in failing to properly supervise and 

monitor the Sheridan playground area and in failing to enforce 

Sheridan’s “no dogs” policy.

The Griffins did not file a responsive pleading, and eventually, the Lamberts moved for default judgment. The district court granted the motion, entering judgment against the 

Griffins and in favor of the Lamberts in the total amount of 

$140,000. No party has appealed that judgment.

LPS moved for summary judgment arguing, among other 

things, that LPS owed no legal duty to the Lamberts on these 

facts and that LPS was immune from suit under the discretionary function exception of the PSTCA. Based on the evidence 

received at the summary judgment hearing, the trial court 

found the following facts were undisputed:

(a) School Hours

At Sheridan, the schoolday begins at 8:50 a.m. and ends at 

3:45 p.m. Classroom instruction begins at 9 a.m. and ends at 

3:38 p.m. The student dismissal period begins once classroom 

instruction is over and ends at 3:50 p.m. Sheridan teachers are 

required to be at work from 8:15 a.m. to 3:45 p.m., and the 

school office closes at 4:30 p.m. Sheridan staff often remain in 

the school building past the 3:50 p.m. student dismissal time. 

After the student dismissal period, some Sheridan students 

remain in the school building as late as 4:40 p.m. to engage 

in non-LPS activities such as clubs sponsored by the parentteacher organization or “Family Services” activities. LPS does 

not administer or supervise these after-school activities.

On the afternoon of April 4, 2016, when the dog bites 

occurred, it was after the regular schoolday had ended and after 

Sheridan students had been dismissed. Jena and Olivia were 

not on the Sheridan playground in connection with an afterschool activity or club.
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Cite as 306 Neb. 192

(b) LPS Policy on Animals

On April 4, 2016, LPS “Regulation 3971.1” provided in 

relevant part:

Animals at large. It shall be unlawful for any person 

to allow or permit any dog or other animal to run at large 

on any school ground. The term “at large” is defined to 

mean not under the control of any person either by leash, 

cord, chain, or confinement within a vehicle or pen or 

other similar enclosure.

The LPS assistant superintendent for general administration and governmental relations testified that on April 4, 2016, 

the official LPS policy was that a dog was allowed on school 

grounds it if was on a leash and under control. He testified that 

this policy generally applied only during the schoolday, and he 

defined the term “schoolday” as beginning when students can 

arrive at school and ending when students are dismissed.

(c) Other LPS Policies

LPS policies give the administrators and supervisory staff at 

individual schools full power and authority to implement and 

enforce restrictions on the use of school grounds. Additionally, 

each school is authorized to determine how long before and 

after the student schoolday staff is required to be on site, and 

the principal designates which staff is required to serve on 

playground, lunchroom, and hall supervision.

(d) Sheridan’s Policy on Dogs

Sheridan has adopted a policy on dogs that is more restrictive than the LPS regulation on animals. According to 

Sheridan’s principal, on April 4, 2016, the policy at Sheridan 

was “no dogs on school grounds.” The principal testified that 

this “no dogs” policy was mentioned in the school handbook 

and in school newsletters, and a sign near the Sheridan playground had a red strike through an image of a dog, indicating dogs are not allowed. Both the principal and a Sheridan 

teacher testified that if Sheridan staff see people with dogs 

on school grounds during school hours, even on leashes, they 
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Cite as 306 Neb. 192

ask them to remove the dog from school grounds. The principal also testified that Sheridan’s “no dogs” policy applies 

only during school hours, from 8:50 a.m. to 3:45 p.m., and 

that once the schoolday ends, Sheridan staff do not monitor 

the playground area and it becomes “kind of like a park . . . 

after hours.”

(e) Summary Judgment Order

The district court granted summary judgment in favor of 

LPS and dismissed the Lamberts’ tort action with prejudice. It 

concluded that summary judgment was appropriate on several 

grounds, including that LPS had no legal duty and that the 

Lamberts’ claim was barred under the discretionary function 

exception under the PSTCA 3.

Regarding Sheridan’s “no dogs” policy, the district court 

found the evidence was undisputed that Sheridan had a policy 

that no dogs were permitted on the school grounds and that this 

policy was limited to regular school hours. It found that the 

decision of Sheridan administrators not to supervise or monitor 

the playground area after school hours, and thus not to enforce 

the “no dogs” policy after school hours, was an administrative 

decision grounded in social, economic, and political policy and 

was the type of decision that fell squarely within the discretionary function exception.

The Lamberts filed this timely appeal, which we moved to 

our docket on our own motion.

II. ASSIGNMENTS OF ERROR

The Lamberts assign, restated and summarized, that the district court erred in (1) determining the discretionary function 

exception applied to bar the Lamberts’ claim and (2) finding 

LPS owed no legal duty under the circumstances.

III. STANDARD OF REVIEW

[1,2] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

3 See id.
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show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from the 

facts and that the moving party is entitled to judgment as a 

matter of law. 4 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. 5

[3] Whether undisputed facts demonstrate that liability 

is precluded by the discretionary function exception of the 

PSTCA is a question of law. 6

IV. ANALYSIS

Before we review the lower court’s decision to grant summary judgment based on the discretionary function exception, 

we comment briefly on the order in which a court should 

address multiple grounds for dismissal. In cases such as this 

one, where the political subdivision seeks summary judgment 

on a number of different grounds, courts should address as a 

threshold matter any grounds which are jurisdictional.

[4-6] Whether a court has subject matter jurisdiction is a 

threshold issue that should be resolved prior to an examination of the merits. 7 In cases under the PSTCA, if the discretionary function exception applies, the political subdivision 

is immune from suit 8 and the proper remedy is to dismiss 

the action for lack of subject matter jurisdiction. 9 Because 

4 Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019).

5 Id.

6 See Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80 

(1993).

7 Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019).

8 See McGauley v. Washington County, 297 Neb. 134, 897 N.W.2d 851 

(2017).

9 Reiber v. County of Gage, 303 Neb. 325, 341, 928 N.W.2d 916, 928 (2019) 

(“[a] suit that is barred by sovereign immunity is dismissed for lack of 

subject matter jurisdiction”).
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it presents a jurisdictional question, courts should determine 

the applicability of a statutory exception under either the 

PSTCA or the State Tort Claims Act (STCA) 10 before considering nonjurisdictional grounds for summary judgment.

1. Applicable Legal Standards

The discretionary function exception is codified at 

§ 13-910(2) and provides 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 

subdivision, whether or not the discretion is abused.” A similar provision is contained in the STCA, and we have held that 

cases construing the STCA’s discretionary function exception 

are equally applicable to cases under the PSTCA. 11

[7] The purpose of the discretionary function exception 

of the STCA and the PSTCA is to prevent judicial “secondguessing” of legislative and administrative decisions grounded 

in social, economic, and political policy through the medium 

of action in tort. 12 It does not extend to the exercise of discretionary acts at an operational level, where there is no room for 

policy judgment. 13 It is the nature of the conduct, rather than 

the status of the actor, that governs whether the discretionary 

function applies in a given case. 14

[8] A two-part analysis determines whether the discretionary function exception applies. 15 First, the court must consider 

whether the action is a matter of choice for the acting political subdivision or employee. 16 Second, if the court concludes 

10 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).

11 See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 

(2012).

12 Id.

13 Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).

14 Id.

15 See McGauley, supra note 8.

16 See id.
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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. 17

Examples of discretionary functions include the initiation of 

programs and activities, establishment of plans and schedules, 

and judgmental decisions within a broad regulatory framework 

lacking specific standards. 18

2. Lamberts’ Arguments

In arguing that the district court erred in applying the discretionary function exception, the Lamberts present two arguments. First, they argue there is a genuine factual dispute about 

whether Sheridan’s “no dogs” policy actually extended beyond 

school hours. Second, and primarily, they argue the failure of 

LPS employees to enforce Sheridan’s “no dogs” policy was 

an operational judgment, and not the kind of judgment the 

discretionary function exception was meant to shield. 19 As we 

explain below, neither argument has merit.

(a) No Genuine Issue of Material Fact Regarding 

Scope of Sheridan’s “No Dogs” Policy

We find no support in the record for the Lamberts’ suggestion that there is a genuine issue of material fact regarding 

whether Sheridan’s “no dogs” policy extended beyond the 

hours students were in school. The Lamberts cite to deposition testimony from a Sheridan teacher who also taught 

after-school clubs pursuant to an agreement with Sheridan’s 

parent-teacher organization. This teacher testified that when 

students were dismissed from the after-school clubs, she, or 

another person paid by the parent-teacher organization, would 

stay with the students until they were picked up by a parent. 

Even construing this testimony in the light most favorable to 

the Lamberts and giving them every reasonable inference, this 

17 Id.

18 Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).

19 See McGauley, supra note 8.
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testimony had nothing to do with LPS employees monitoring 

the playground area or enforcing the “no dogs” policy after 

hours. There is nothing about this testimony that creates a 

genuine issue of material fact concerning whether Sheridan’s 

“no dogs” policy extended beyond regular school hours.

To the contrary, we agree with the district court that the 

undisputed evidence in the record demonstrates that Sheridan’s 

“no dogs” policy applied, and was enforced, only during 

regular school hours, but not after students were dismissed for 

the day.

(b) Discretionary Function Exception 

Correctly Applied

The Lamberts concede that the decision of Sheridan administrators to adopt a “no dogs” policy was a discretionary 

function, but they argue that the failure to enforce that policy 

after school hours was a “failure on the operational level by 

the employees to enforce the policy Sheridan had decided 

to put in place.” 20 Their argument in this regard is premised 

on the assumption that Sheridan’s “no dogs” policy applied 

after school hours and therefore should have been enforced 

after school hours. But this assumption finds no support in 

the evidence.

As already stated, the evidence was undisputed that 

Sheridan’s policy was not to allow dogs on the school grounds 

during school hours, even on leashes, but that the “no dogs” 

policy did not apply after regular school hours. And to the 

extent the Lamberts can be understood to argue that Sheridan 

negligently adopted a policy prohibiting dogs on school 

grounds only during school hours, or that Sheridan negligently 

decided not to supervise the playground after students were 

dismissed for the day, we find such conduct falls squarely 

within the discretionary function exception.

On this record, both steps of the discretionary function 

analysis are met. Sheridan’s decision to enforce its “no dogs” 

20 Brief for appellant at 21.
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policy only during school hours, and its decision not to supervise the playground area at all after school hours, involved 

the exercise of judgment. 21 And it was precisely the kind 

of judgment the discretionary function exception is designed 

to shield. 22

LPS policies give individual school administrators broad 

discretion as to what restrictions to place on the use of school 

buildings and grounds and how to utilize staff to supervise 

activities on school grounds. The record shows Sheridan 

administrators, in the exercise of this discretion, decided to 

establish and enforce a “no dogs” policy only during school 

hours and decided not to supervise the school playground area 

at all after students have been dismissed for the day. How to 

utilize staff and budget to supervise school grounds and regulate activities thereon are administrative decisions grounded in 

social, economic, and political policy, and they fall within the 

discretionary function exception. 23

V. CONCLUSION

Because LPS is immune from the Lamberts’ claims under 

the discretionary function exception of the PSTCA, the district 

court correctly granted summary judgment on that basis and 

dismissed the action as against LPS with prejudice. The judgment of the district court is affirmed.

Affirmed.

21 See McGauley, supra note 8.

22 Id.

23 See Kimminau, supra note 18.