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WILLIAMS v. CITY OF LINCOLN

Cite as 27 Neb. App. 414

Kathy Girard Williams, Ph.D., and M

Williams, appellants, v. City of Linc

Nebraska, appellee.

___ N.W.2d ___

Filed July 23, 2019. No. A-18-680.

1. Judges: Recusal. A judge shall disqualify himself or herself in any 

proceeding in which the judge’s impartiality might reasonably be 

questioned.

2. Judgments: Statutes: Appeal and Error. Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the decision made by the court below.

3. Political Subdivisions Tort Claims Act. Whether the allegations made 

by a plaintiff present a claim that is precluded by exemptions set forth 

in the Political Subdivisions Tort Claims Act is a question of law.

4. Political Subdivisions Tort Claims Act: Appeal and Error. An 

appellate court has an obligation to reach its conclusion on whether a 

claim is precluded by exemptions set forth in the Political Subdivisions 

Tort Claims Act independent from the conclusion reached by the 

trial court.

5. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose that there is no genuine 

issue as to any material fact or as to the ultimate inferences that may be 

drawn from those facts and that the moving party is entitled to judgment 

as a matter of law.

6. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

7. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, 

a judge must recuse himself or herself from a case if the judge’s impartiality might reasonably be questioned.

Nebraska Supreme Court Online Library

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

07/23/2019 08:06 AM CDT
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8. ____: ____. Under the Nebraska Revised Code of Judicial Conduct, 

such instances in which the judge’s impartiality might reasonably be 

questioned specifically include where the judge has a personal bias or 

prejudice concerning a party or a party’s lawyer.

9. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

10. Judges: Recusal: Waiver. A party is said to have waived his or her right 

to obtain a judge’s disqualification when the alleged basis for the disqualification has been known to the party for some time, but the objection is raised well after the judge has participated in the proceedings.

11. Political Subdivisions Tort Claims Act: Waiver: Immunity. The 

Political Subdivisions Tort Claims Act reflects a limited waiver of governmental immunity and prescribes the procedure for maintenance of a 

suit against a political subdivision.

12. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort 

Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.

13. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly 

construed in favor of the sovereign and against the waiver.

14. Political Subdivisions Tort Claims Act: Immunity: Waiver. The 

Political Subdivisions Tort Claims Act provides limited waivers of sovereign immunity, which are subject to statutory exceptions.

15. Political Subdivisions Tort Claims Act. A court engages in a twostep analysis to determine whether the discretionary function exception 

of the Political Subdivisions Tort Claims Act applies. First, the 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.

16. ____. 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.

17. ____. The discretionary function exception of the Political Subdivisions 

Tort Claims Act does not apply when the governmental entity has a nondiscretionary duty to warn or take other protective measures that may 

prevent injury as the result of the dangerous condition or hazard.

18. Political Subdivisions Tort Claims Act: Negligence. A nondiscretionary duty to warn or take other protective measures exists when (1) a 
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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 Lancaster County: Sus

I. Strong, Judge. Affir

Jerry W. Katskee and Thomas C. Dorwart, of Govier, 

Katskee, Suing & Maxell, P.C., L.L.O., for appellants.

Jeffery R. Kirkpatrick, Lincoln City Attorney, Elizabeth D. 

Elliott, and Margaret M. Blatchford for appellee.

Riedmann, Arterburn, and Welch, J

Riedmann, Jud

INTRODUCTION

Kathy Girard Williams and Michael Williams appeal 

the order of the district court for Lancaster County which 

entered summary judgment in favor of the City of Lincoln, 

Nebraska (the City), based on the court’s determination that the 

Williamses’ claims against the City were barred by sovereign 

immunity. We affirm.

BACKGROUND

On September 13, 2015, the Williamses were riding their 

bicycles on a sidewalk owned by the City. Shortly past an 

intersection, a row of pear trees lined the median between the 

sidewalk and the street. Michael was riding in front of Kathy, 

and the pair rode past the first three trees without incident. 

The branches of the fourth tree, however, extended over the 

sidewalk. Michael was approximately 20 to 30 feet away when 

he noticed the overgrown tree. Michael yelled back to warn 

Kathy of the tree up ahead and successfully veered to the side 

and around the tree, but Kathy, who was riding approximately 

5 to 10 feet behind Michael, collided with the low-hanging 
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branches of the tree, was knocked off her bicycle, and sustained serious injuries.

The Williamses filed a tort claim with the City pursuant 

to the Political Subdivisions Tort Claims Act (PSTCA), Neb. 

Rev. Stat. § 13-901 et seq. (Reissue 2012), seeking damages 

in the amount of $1 million. The City rejected the claim. The 

Williamses then filed a complaint in the district court. The 

complaint alleged that Kathy’s injuries were the result of the 

City’s negligent failure to properly prune and maintain the tree 

with which Kathy collided.

The City filed an answer, which asserted, among other things, 

that it was immune from suit due to sovereign immunity. The 

City subsequently filed a motion for summary judgment.

The evidence received at the hearing on the motion for summary judgment establishes that there are 81,785 “street trees” 

under the care of the City’s parks and recreation department 

and another 30,505 trees located in the City’s parks. The tree at 

issue here is considered one of the “street trees.”

The City’s municipal code requires that the City maintain 

“street trees.” See Lincoln Mun. Code § 12.20.030 (2003). 

The city charter provides that the city council shall have the 

power to provide for the removal or trimming of trees located 

along the streets or public ways, including the sidewalk 

space, and to trim the branches of trees overhanging them. 

In response to these requirements, the City’s parks and recreation department created the community forestry division, 

which is responsible for the care and management of all public trees, including planting, tree inspections, maintenance, 

and removal.

Due to limited resources and budget constraints, the City 

established a plan for prioritizing maintenance of trees on a 

complaint basis, giving priority to any tree with identified 

defects that could result in damage to property or personal 

injury and then providing regular maintenance on the City’s 

other trees. There is no specific requirement as to how often a 

tree must be inspected or trimmed.
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The City never received a complaint or service request 

regarding the tree at issue here. It was clear that the three 

trees adjacent to the tree with which Kathy collided had 

been trimmed, but according to an affidavit of the director of 

the City’s parks and recreation department, the City had not 

trimmed them on or before the date of the accident, and it is 

unknown who did so.

The Williamses offered into evidence the deposition of 

their expert witness, Melanie Short. Short is an architect, not 

an arborist. She opined that the low-hanging branches on the 

subject tree violate the standard of care for safe sidewalks 

and bikeways and that the City failed to reasonably maintain the trees along the sidewalk, which created a dangerous condition that caused Kathy’s fall and injuries. In order 

to establish the applicable standard of care, Short looked 

at the Lincoln Municipal Code and the 2009 International 

Building Code, which she admitted is not applicable here, 

but gives a “secondary understanding” of clearances and head 

heights. She also used “some best practices both from the 

Federal Highway Administration, as well as ASTM,” which 

she said is a standards organization for “different types of 

issues and industries.” The standard of care Short relied upon 

in forming her opinion was based on the standard of care 

in architecture, but she did not know if arborists follow the 

same standard.

Short explained that the recommended clearance for a tree 

branch above a sidewalk is 8 or 9 feet, depending upon who 

is making the recommendation. The City’s community forestry 

division indicates that the recommended minimum clearance 

for a tree branch over a sidewalk is 9 feet. A clearance of 40 

inches in width is also recommended. Short admitted, however, 

that these numbers are recommendations and not requirements. 

According to Short, the sidewalk where the Williamses were 

riding their bicycles is 5 feet wide, and she estimated that the 

subject tree branches extended at least 3 feet over the sidewalk 

and were only 3 feet above the ground.
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The trees lining the sidewalk where the accident occurred 

are “Chanticleer flowering pear” trees. The subject tree and 

three adjacent trees were planted prior to 2007, and Short did 

not know the growth rate for the subject tree or how many 

inches per year it grew, acknowledging that trees grow at 

different rates and that their growth can be affected by the 

weather and environment. She also admitted that she could 

not say for how many years the tree’s branches had been 

extending over the sidewalk. Short explained that when the 

three adjacent trees were trimmed, this tree’s condition would 

have been apparent, and it could have been trimmed at the 

same time.

In its order on summary judgment, the district court determined that the discretionary function exception to the PSTCA 

applies and that the City did not have a nondiscretionary duty 

to warn or take measures to prevent injury. Therefore, the district court found that the Williamses’ claims against the City 

were barred by sovereign immunity and granted the City’s 

motion for summary judgment. The Williamses appeal.

ASSIGNMENTS OF ERROR

The Williamses assign that the district court erred in (1) 

failing to recuse itself from the proceedings, (2) finding that 

their claim fell within the exceptions to the PSTCA and that 

the claims are barred by sovereign immunity, (3) finding 

that the City did not have a nondiscretionary duty and did not 

have notice of the low-hanging tree branches, and (4) granting the City’s motion for summary judgment and finding that 

there was no genuine issue of material fact.

STANDARD OF REVIEW

[1] A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be 

questioned. Tierney v. Four H Land Co., 281 Neb. 658, 798 

N.W.2d 586 (2011).

[2] Questions of law and statutory interpretation require 

an appellate court to reach a conclusion independent of 
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the decision made by the court below. Kimminau v. City of 

Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).

[3,4] Whether the allegations made by a plaintiff present a 

claim that is precluded by exemptions set forth in the PSTCA 

is a question of law. Kimminau v. City of Hastings, supra. An 

appellate court has an obligation to reach its conclusion on 

whether a claim is precluded by exemptions set forth in the 

PSTCA independent from the conclusion reached by the trial 

court. Kimminau v. City of Hastings, supra.

[5,6] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences 

that may be drawn from those facts and that the moving party 

is entitled to judgment as a matter of law. Id. In reviewing a 

summary judgment, an appellate court views the evidence in a 

light most favorable to the party against whom the judgment 

is granted and gives such party the benefit of all reasonable 

inferences deducible from the evidence. Id.

ANALYSIS

Judicial Bias.

The Williamses argue that the judge presiding over this proceeding should have recused herself because she is employed 

by Lancaster County, the county in which the City is located, 

and is a taxpayer of the City; they claim that she was therefore 

inherently biased in favor of the City. We conclude that this 

issue has not been preserved for appeal.

[7-9] Under the Nebraska Revised Code of Judicial Conduct, 

a judge must recuse himself or herself from a case if the 

judge’s impartiality might reasonably be questioned. State 

v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017). Under 

the code, such instances in which the judge’s impartiality 

might reasonably be questioned specifically include where the 

judge has a personal bias or prejudice concerning a party or a 

party’s lawyer. State v. Buttercase, supra. A defendant seeking 

to disqualify a judge on the basis of bias or prejudice bears 
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the heavy burden of overcoming the presumption of judicial 

impartiality. Id.

[10] A party is said to have waived his or her right to obtain 

a judge’s disqualification when the alleged basis for the disqualification has been known to the party for some time, but 

the objection is raised well after the judge has participated in 

the proceedings. Blaser v. County of Madison, 285 Neb. 290, 

826 N.W.2d 554 (2013). Under these facts, once a case has 

been litigated, an appellate court will not disqualify a judge 

and give litigants “‘“a second bite at the apple.”’” Id. at 299, 

826 N.W.2d at 562.

The rule that it is generally too late to raise the issue of 

disqualification after the matter is submitted for decision rests 

on the principle that a party may not gamble on a favorable 

decision. Blaser v. County of Madison, supra. This principle 

does not apply when the facts constituting the disqualification 

are unknown, because no gamble could have been purposefully made. Id. Instead, the issue of disqualification is timely 

if submitted at the earliest practicable opportunity after the 

disqualifying facts are discovered. Id.

In the present case, the Williamses did not raise the issue of 

disqualification or judicial bias during any of the proceedings 

before the district court; rather, the issue was raised for the 

first time on appeal. The record before us contains transcripts 

of hearings held before the district court on January 26 and 

May 3, 2018, on various motions, but the issue of judicial bias 

was not raised at either hearing. The Williamses base their 

allegations of judicial bias on the fact that the City was a party 

to the proceeding; thus, this alleged disqualifying fact was 

known to them prior to the hearings. See State v. Buttercase, 

supra. And at the conclusion of the January 26 hearing, the 

court asked the parties, “Anything else?” Counsel for the 

Williamses did not raise the issue at that time. We therefore 

find that they failed to raise the issue at the earliest practicable 

opportunity and have waived any argument regarding bias. 

See id.
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In response to the City’s claim that this issue has not been 

properly preserved, the Williamses argue that there “is no 

timeframe deadline for recusal of a biased judge” and that no 

motion for disqualification is required. Reply brief for appellants at 8. They cite to Neb. Rev. Code of Judicial Conduct 

§ 5-302.11, comment 2, which provides that a judge’s obligation not to hear or decide matters in which disqualification is 

required applies regardless of whether a motion to disqualify 

is filed.

The “Preamble” to the Nebraska Revised Code of Judicial 

Conduct explains that the code establishes standards for the 

ethical conduct of judges and judicial candidates. According 

to the “Scope” of the Nebraska Revised Code of Judicial 

Conduct, the comments that accompany the rules under the 

code provide guidance regarding the purpose, meaning, and 

proper application of the rules and also identify aspirational 

goals for judges. Thus, the code governs the conduct of judges

and requires that a judge disqualify himself or herself in any 

proceeding in which the judge’s impartiality might reasonably 

be questioned regardless of whether a motion to disqualify is 

filed by a party to the proceeding.

Our case law makes clear, however, that if a party believes 

that a judge should recuse himself or herself because of bias, 

the party must ask the court to do so at the earliest practicable 

opportunity. If the party does not, and the judge participates in 

the proceedings, the party waives the right to assert error as 

to alleged judicial bias on appeal, and an appellate court will 

not allow the party to gamble on a favorable decision and then 

afford that party “‘“a second bite at the apple.”’” See Blaser 

v. County of Madison, 285 Neb. 290, 299, 826 N.W.2d 554, 

562 (2013). See, also, In re Interest of J.K., 300 Neb. 510, 

915 N.W.2d 91 (2018); State v. Buttercase, 296 Neb. 304, 893 

N.W.2d 430 (2017); Tierney v. Four H Land Co., 281 Neb. 

658, 798 N.W.2d 586 (2011). Because the Williamses did not 

raise this issue at the earliest practicable opportunity, it has not 

been preserved for appeal.
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Discretionary Function 

Exception.

The Williamses argue that the district court erred in determining that their claims under the PSTCA are barred by the 

discretionary function exception to the waiver of sovereign 

immunity. We disagree.

[11-13] The City is a political subdivision of the State of 

Nebraska. See § 13-903(1). The PSTCA reflects a limited 

waiver of governmental immunity and prescribes the procedure for maintenance of a suit against a political subdivision. Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 

(2007). It is the exclusive means by which a tort claim may 

be maintained against a political subdivision or its employees. 

Id. Statutes that purport to waive the protection of sovereign 

immunity of the State or its subdivisions are strictly construed 

in favor of the sovereign and against the waiver. Id.

[14] The PSTCA provides limited waivers of sovereign 

immunity, which are subject to statutory exceptions. See 

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

851 (2017). If a statutory exception applies, the claim is barred 

by sovereign immunity. Id.

The statutory exception provided by § 13-910(2) is commonly known as the discretionary function exception. See 

McGauley v. Washington County, supra. Under that exception, 

the PSTCA shall not apply to any 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. § 13-910(2). 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. Kimminau v. City of Hastings, 291 Neb. 133, 

864 N.W.2d 399 (2015).

[15] A court engages in a two-step analysis to determine 

whether the discretionary function exception of the PSTCA 
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applies. Id. First, the court must consider whether the action 

is a matter of choice for the acting employee. Id. This inquiry 

is mandated by the language of the exception; conduct cannot 

be discretionary unless it involves an element of judgment 

or choice. Berkovitz v. United States, 486 U.S. 531, 108 S. 

Ct. 1954, 100 L. Ed. 2d 531 (1988) (considering discretionary function exception of Federal Tort Claims Act). Thus, the 

discretionary function exception will not apply when a statute, 

regulation, or policy specifically prescribes a course of action 

for an employee to follow. Id. In this event, the employee has 

no rightful option but to adhere to the directive. Id. 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 exception to protect. Id. 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. Kimminau v. City of Hastings, 

supra. 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. Id. 

See, also, Berkovitz v. United States, supra.

In order to determine whether the challenged conduct in 

the present case involves an element of choice or judgment 

under the first step of the analysis, we look to factually similar federal cases. See Lemke v. Metropolitan Utilities Dist., 

243 Neb. 633, 502 N.W.2d 80 (1993) (discretionary function 

exception of Federal Tort Claims Act is substantially similar 

to PSTCA).

In Autery v. U.S., 992 F.2d 1523 (11th Cir. 1993), a tree in 

a national park fell on a car, killing the driver and injuring 

the passenger. The plaintiffs filed suit against the government 

under the Federal Tort Claims Act. At the time of the accident, the park service had an unwritten policy to make every 

reasonable effort within the constraints of budget, manpower, 
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and equipment available to detect, document, remove, and 

prevent tree hazards. To implement the policy, the park service 

required personnel to initially conduct visual inspections from 

trucks driven along the road. Any tree that appeared hazardous 

was then inspected more closely.

On appeal, the 11th Circuit determined that for purposes of a 

discretionary function exception analysis, it must first identify 

the specific governmental conduct at issue. The court observed 

that it is the governing administrative policy that determines 

whether certain conduct is mandatory for purposes of the discretionary function exception. Therefore, the relevant inquiry 

is whether controlling statutes, regulations, and administrative 

policies mandated that the park service inspect for hazardous trees in a specific manner. If not, then the park officials’ 

decision to employ a particular inspection procedure, and its 

execution of that plan, is protected by the discretionary function exception.

The 11th Circuit recognized that the applicable laws afforded 

the government broad authority to promote and regulate its 

parks and the discretion for the destruction of plant life as 

may be detrimental to the use of the parks. The court concluded that pursuant to those statutory grants of authority, the 

park service had discretion to design and implement a policy 

for evaluating and removing trees from the park. Further, the 

park service’s unwritten policy prescribed neither a particular method of inspection nor special rules for inspecting this 

particular type of tree. The court recognized that such general 

guidelines are insufficient to deprive the government of the 

protection of the discretionary function exception and that only 

if a federal statute, regulation, or policy specifically prescribes 

a course of action, embodying a fixed or readily ascertainable 

standard, will the conduct of the government not fall within 

the discretionary function exception. The court therefore held 

that the decisions made by the park service in designing and 

implementing its tree inspection program fell within the ambit 

of the discretionary function exception.
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Similarly, in Merando v. U.S., 517 F.3d 160 (3d Cir. 2008), 

a tree in a national recreational area fell on a vehicle, killing 

two passengers. The evidence established that the tree’s natural 

growth caused it to lean with its branches extending over the 

roadway and that more than 10 years before the accident, an 

unknown person had trimmed the tree. The plaintiffs brought 

a claim under the Federal Tort Claims Act. The government 

moved to dismiss the action on the basis of the discretionary 

function exception, and the trial court granted the motion.

On appeal, the Third Circuit, like the court in Autery v. 

U.S., 992 F.2d 1523 (11th Cir. 1993), determined that the 

relevant inquiry was whether the controlling statutes, regulations, and administrative policies mandated that the park service, which managed the recreational area, locate and manage 

hazardous trees in any specific manner. The applicable regulations generally afforded the authority to maintain and manage the recreational area and protect visitor safety. The park 

service’s management policies specifically provided that the 

means by which public safety concerns are to be addressed 

is left to its discretion, working within the limits of funding 

and staffing.

The Third Circuit concluded that the controlling statutes, 

regulations, and policies that led to the creation of the park 

service’s plan did not mandate any particular methods of hazardous tree management such as inspecting certain trees on 

certain days or removing a particular number of trees per week. 

In addition, although the park service’s unwritten plan required 

personnel to scan for hazardous trees as they drove the recreational area’s roads, there was no statute, regulation, or policy 

dictating the specifics of that requirement such as when or how 

often personnel must drive or when they must exit their vehicles to conduct individual tree inspections. Therefore, the Third 

Circuit concluded that the park service’s plan came within the 

discretionary function.

In the present case, the Williamses argue that maintenance of the City’s trees overhanging a sidewalk was not a 
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discretionary function, because the City was required by law 

to trim and maintain its trees and to maintain sidewalks in a 

reasonably safe condition; thus, there was no choice or discretion involved. However, the Williamses misidentify the 

particular conduct at issue. As the federal courts of appeal 

held in Autery v. U.S., supra, and Merando v. U.S., supra, the 

relevant inquiry is whether the controlling statutes, regulations, 

and administrative policies mandate the location and management of hazardous trees in a specific manner. If not, then the 

official’s decisions as to the precise manner in which to do so, 

and execution of that plan, are protected by the discretionary 

function exception.

We agree with the Williamses that under the applicable regulations, the City had a duty to maintain its trees. Specifically, 

the Lincoln Municipal Code provides that the selection, planting, maintenance, and removal of trees along public ways 

within the City are matters over which the City must exercise 

the control set forth under the municipal code. Lincoln Mun. 

Code § 12.20.010 (2003). The municipal code further provides 

that the trimming, spraying, removing, and destroying of all 

existing trees and of all “street trees . . . planted in or upon any 

street, parkway, sidewalk space, or other public way within the 

[C]ity, shall be done by and at the expense of the [C]ity and at 

its discretion and by no other person.” § 12.20.030. But nothing under these sections of the municipal code delineate how 

or when the maintenance is to be done. And the municipal code 

specifically grants the City discretion regarding maintenance of 

its trees.

The Williamses also cite to Neb. Rev. Stat. § 15-734 (Reissue 

2012). Section 15-734 provides the City with “general charge, 

control, and supervision of the streets and sidewalks thereof” 

and requires the City to “maintain the same in a reasonably 

safe condition.” In order to define “reasonably safe,” the 

Williamses direct our attention to Neb. Rev. Stat. § 39-1812 

(Reissue 2016), which mandates that trees “shall be trimmed 

from the ground up eight feet.”
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Although § 15-734 requires the City to maintain its sidewalks, it is questionable whether this statute would apply to 

the maintenance of trees adjacent to a sidewalk, particularly 

when the statute specifically requires maintenance of sidewalks 

“in a safe and sound condition and free from snow, ice, and 

other obstructions.” Regardless, assuming without deciding 

that sidewalk maintenance includes maintaining and trimming 

the trees adjacent to a sidewalk, § 15-734 does not impose 

any obligation upon the City to make regular inspections for 

safety or defects or provide how or when maintenance must 

be performed. Thus, similar to the provisions of the municipal 

code, § 15-734 imposes an obligation upon the City, but allows 

the City to exercise discretion in determining how to fulfill its 

obligation to maintain its sidewalks.

[16] Having concluded that the challenged conduct involves 

an element of judgment, we must now determine whether that 

judgment is of the kind that the discretionary function exception was designed to shield. Kimminau v. City of Hastings, 

291 Neb. 133, 864 N.W.2d 399 (2015). The purpose of the 

discretionary function exception 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. Id. See, also, Berkovitz v. United States, 486 

U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988).

After deciding that no mandatory statute, regulation, or 

policy controlled the development and implementation of the 

unwritten tree inspection policy, the 11th Circuit in Autery v. 

U.S., 992 F.2d 1523 (11th Cir. 1993), addressed whether the 

choices involved in such a development and implementation 

were grounded in social, economic, and public policy. The 

court observed that generally, courts have held that decisions 

about what safety measures to employ in national parks and 

how to execute them involve balancing the same considerations that inform all policy decisions regarding the management of national parks: safety, aesthetics, environmental 

impact, and available financial resources. The 11th Circuit 
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recognized that the U.S. Supreme Court has cautioned against 

conducting a fact-based inquiry into the circumstances surrounding the government actor’s exercise of a particular discretionary function, urging courts instead to look to the nature 

of the challenged decision in an objective, or general, sense 

and ask whether that decision is one which would be inherently grounded in considerations of policy. Autery v. U.S., 

supra (citing United States v. Gaubert, 499 U.S. 315, 111 

S. Ct. 1267, 113 L. Ed. 2d 335 (1991)). When established 

governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a government agent to 

exercise discretion, it must be presumed that the agent’s acts 

are grounded in policy when exercising that discretion. United 

States v. Gaubert, supra. Under the facts of Autery v. U.S., 

supra, the 11th Circuit concluded that to decide on a method 

of inspecting potentially hazardous trees, and in carrying out 

the plan, the park service likely had to determine and weigh 

the risk of harm from trees in various locations, the need for 

other safety programs, the extent to which the natural state of 

the forest should be preserved, and the limited financial and 

human resources available.

Similarly, in the instant case, the City is afforded the discretion to determine how to maintain its trees, and we therefore 

presume that the City’s acts in carrying out that discretion are 

grounded in policy. The evidence supports that presumption 

where the affidavit of the director of the City’s parks and recreation department states that in order to carry out the City’s 

obligation of maintaining its trees, it created the community 

forestry division and established a complaint-based schedule 

for prioritizing potentially hazardous trees. The community 

forestry division and tree maintenance are funded through the 

City’s general fund budget, which, according to the affidavit, 

has been limited in the past 15 years or more due to budget 

constraints. The affidavit avers that tree maintenance is conducted as diligently as possible using available but limited 

funds by completing maintenance first on trees that have been 
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identified with defects that could result in damage to property 

or personal injury and then providing regular maintenance to 

other trees. These are the types of policy decisions the discretionary function exception was designed to protect and which 

we will not second guess. We therefore conclude that the district court did not err in finding that the discretionary function 

exception applies to bar the Williamses’ claims.

Nondiscretionary Duty 

and Notice.

The Williamses argue that the district court erred in finding 

that the City did not have a nondiscretionary duty to warn and 

did not have actual or constructive notice of the low-hanging 

tree branches. We find no merit to this argument.

[17,18] The discretionary function exception does not apply 

when the governmental entity has a nondiscretionary duty to 

warn or take other protective measures that may prevent injury 

as the result of the dangerous condition or hazard. McGauley 

v. Washington County, 297 Neb. 134, 897 N.W.2d 851 (2017). 

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. Id.

In the present case, the uncontroverted evidence establishes 

that the City had no actual notice of the low-hanging tree 

branches. The affidavit of the director of the City’s parks and 

recreation department states that the City had never received 

a complaint or service request regarding the tree at issue here 

and that although the adjacent trees had been trimmed, they 

had not been trimmed by the City and the City was unaware of 

who had trimmed them. Thus, it is undisputed that the City had 

no actual notice of a dangerous condition.

The Williamses argue that the City had constructive notice 

because of the length of time the tree had been overgrown. 
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To support their argument, they rely upon Foels v. Town of 

Tonawanda, 75 Hun 363, 27 N.Y.S. 113 (1894). There, the 

plaintiff was injured when she stepped into a hole in the sidewalk of a highway bridge. There was evidence tending to show 

that the hole had been in the sidewalk for 2 or 3 weeks immediately prior to the accident, which the New York Supreme 

Court found was ample time to justify the jury’s finding that 

the town had constructive notice of it.

Similarly, in Gielen v. City of Florence, 94 Neb. 619, 143 

N.W. 932 (1913), the plaintiff was injured when she stumbled 

on a pile of bricks on the sidewalk. The evidence established 

that for several months prior to the accident, bricks had been 

piled in a row on the sidewalk (where the plaintiff was injured) 

by a city contractor preparing to pave the street. While walking on the sidewalk one night, the plaintiff stumbled on a pile 

of bricks, which was a new obstruction of which she had no 

knowledge. The pile had been on the sidewalk for approximately 2 weeks. The Nebraska Supreme Court, relying upon 

Foels v. Town of Tonawanda, supra, among other cases, determined that the question as to whether the obstruction remained 

on the sidewalk for a length of time sufficient to charge the 

defendant with notice was properly submitted to the jury. And 

the Supreme Court found that the evidence was sufficient to 

justify a finding that the city had constructive notice and was 

negligent in failing to remove the obstacle before the plaintiff 

was injured.

We find Foels v. Town of Tonawanda, supra, and Gielen v. 

City of Florence, supra, distinguishable, because in the instant 

case, there was nothing that would place the City on notice that 

the tree needed to be trimmed or evidence of a specific period 

of time that a dangerous condition existed. In Gielen v. City 

of Florence, supra, an employee of the defendant stacked the 

bricks on the sidewalk, giving rise to constructive notice that a 

dangerous condition could exist. Here, however, although the 

City planted the tree sometime prior to 2007, nothing occurred 

in the interim to place the City on notice that a dangerous 
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condition could exist. While it is obvious that the tree continued to grow during that time, Short explained that the growth 

rate of the tree is unknown and that it is unclear how long the 

branches were overhanging the sidewalk. Thus, there was no 

timeframe from which it could be inferred that the City had 

constructive notice of a dangerous condition.

Additionally, Short’s opinion that the City would have had 

knowledge of the tree’s dangerous condition was based on her 

belief that the City trimmed the surrounding three trees, thus 

giving it notice of this tree’s condition. But the evidence is 

uncontroverted that the City did not trim the three trees adjacent to the subject tree, and it is unknown who did so.

Moreover, Short is an architect, not an arborist, and she 

admitted that the standard of care she referenced was based 

on codes which come together to create the standard of care 

in architecture, but she did not know whether arborists follow 

the codes she referenced. Essentially, Short opined that the 

branches of the tree at issue were overhanging the sidewalk 

for an unknown period of time, creating a dangerous condition 

based on recommendations, not requirements, and a standard 

of care that arborists may or may not follow, and that the City 

had constructive notice of a dangerous condition based on the 

faulty premise the City had trimmed the surrounding trees. 

This evidence does not prove actual or constructive knowledge on the part of the City, nor does it create a genuine issue 

of material fact as to whether the City had knowledge of this 

tree’s condition. We therefore conclude that the district court 

did not err in determining that the City did not have actual or 

constructive notice of a dangerous condition.

In addition to the absence of notice of a dangerous condition, the district court also determined that the evidence establishes that the hazard was readily apparent. We note that the 

Williamses do not challenge this conclusion on appeal, and we 

agree with the district court’s decision.

According to Michael’s affidavit, he was riding in front 

of Kathy and saw the low-hanging tree branches when he 
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was approximately 20 to 30 feet away. He warned Kathy and 

veered around the tree. The district court found it significant 

that Michael had time to warn Kathy about the overgrown tree 

and still avoid it by maneuvering around it. The photographs 

of the tree at issue depict its branches extending over the sidewalk, and according to Short, the branches extended at least 

3 feet over the 5-foot-wide sidewalk. Short testified in her 

deposition that the branches extending over the sidewalk were 

visible. As a result, the district court did not err in determining 

that the dangerous condition was readily apparent.

Because the evidence establishes that the City did not have 

actual or constructive notice of a dangerous condition and that 

the dangerous condition was readily apparent, we conclude 

the district court properly determined that there was no nondiscretionary duty to warn or take other protective measures. 

Accordingly, this assigned error lacks merit.

Summary Judgment.

The Williamses argue that the district court erred in granting the City’s motion for summary judgment, because they 

presented numerous genuine issues of material fact. They specifically allege that issues of fact exist, because Short testified 

as to the “clearance standard for trees” and they testified that 

“they believed they were riding their bicycles on a bicycle 

path and were using a public right-of-way.” Brief for appellants at 23. They also claim that they presented facts regarding the City’s discretionary versus ministerial duty, the nature 

of the City’s duty to trim trees, and the City’s actual and 

constructive notice “due to the disputed fact of who trimmed 

the three adjacent trees and to the fact of how long the tree 

at issue had been dangerously overgrown and low-hanging.” 

Id. at 23.

The Williamses do not explain how these issues created 

issues of material fact, and we have generally addressed them 

above, determining that the district court properly granted 

the City’s motion for summary judgment. To briefly recap, 
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although Short explained the clearance standards for trees, she 

admitted that the numbers provided were merely recommendations and not requirements, and she could not estimate how 

long the tree at issue had surpassed the recommended clearances. Although the Williamses may have believed they were 

riding on a bicycle path, an affidavit of the City’s director of 

the planning department states that that particular sidewalk 

“was not a designated bike path or facility,” but that bicycling 

on that sidewalk was not prohibited. Regardless, this does not 

change the fact that the recommended clearance levels were 

not mandatory.

We additionally determined above that setting a tree maintenance schedule was a discretionary function of the City. 

And despite the Williamses’ argument, the evidence was 

undisputed that the City did not trim the trees adjacent to the 

tree at issue here. According to the affidavit of the director 

of the City’s parks and recreation department, the City had 

not trimmed the three adjacent trees on or before the date of 

the accident, and it was unknown who trimmed them. The 

Williamses did not present any evidence to the contrary which 

would establish that the City had, in fact, trimmed those trees, 

placing it on notice of the dangerous condition of the subject 

tree. We therefore disagree that the evidence established any 

genuine issue of material fact which would have precluded 

entry of judgment as a matter of law. Accordingly, the district court did not err in granting the City’s motion for summary judgment.

CONCLUSION

Having rejected the arguments raised on appeal, we conclude that the district court did not err in determining that the 

Williamses’ claims against the City are barred by sovereign 

immunity and in granting the City’s motion for summary judgment. We therefore affirm the district court’s order.

Affirmed