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McGAULEY v. WASHINGTON COUNT

Cite as 297 Neb. 134

Dawn McGauley, as Personal Repres

of the Estate of James E. McGauley, decea

appellant, v. Washington County, a cor

and political subdivision of the Stat

Nebraska, and Martin Mari

Materials, Inc., appell

___ N.W.2d ___

Filed July 7, 2017. No. S-16-897.

1. Political Subdivisions Tort Claims Act: Appeal and Error. A district 

court’s findings of fact in a proceeding under the Political Subdivisions 

Tort Claims Act will not be set aside unless such findings are clearly 

erroneous.

2. Administrative Law: Statutes: Appeal and Error. To the extent that 

the meaning and interpretation of statutes and regulations are involved, 

questions of law are presented, in connection with which an appellate 

court has an obligation to reach an independent conclusion irrespective 

of the decision made by the court below.

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

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

4. Political Subdivisions Tort Claims Act. The discretionary function 

exception of the Political Subdivisions Tort Claims Act extends only 

to basic policy decisions made in governmental activity at the operational level, and not to ministerial activities implementing such policy decisions.

5. ____. The purpose of the discretionary function exception of the Political 

Subdivisions Tort Claims Act is to prevent judicial “second-guessing” of 

legislative and administrative decisions grounded in social, economic, 

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

6. ____. To determine whether the discretionary function exception of the 

Political Subdivisions Tort Claims Act applies, the Nebraska Supreme 

Nebraska Supreme Court Online Library

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

09/15/2017 01:11 AM CDT
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Cite as 297 Neb. 134

Court has set out a two-step analysis. First, a court must consider 

whether the action is a matter of choice for the acting employee. Second, 

if the court concludes that the challenged conduct involves an element 

of judgment, it must then determine whether that judgment is of the kind 

that the discretionary function exception was designed to shield.

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

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

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

8. Political Subdivisions: Negligence. A nondiscretionary duty to warn 

or take other protective measures exists when (1) a governmental entity 

has actual or constructive notice of a dangerous condition or hazard 

caused by or under the control of the governmental entity and (2) the 

dangerous condition or hazard is not readily apparent to persons who 

are likely to be injured by the dangerous condition or hazard.

Appeal from the District Court for Washington County: Joh

E. Samson, Judge. Affirm

David A. Domina and Christian T. Williams, of Domina Law 

Group, P.C., L.L.O., for appellant.

Robert S. Keith and Philip O. Cusic, of Engles, Ketcham, 

Olson & Keith, P.C., for appellee Washington County.

Tiernan T. Siems and Karen M. Keeler, of Erickson & 

Sederstrom, P.C., for appellee Martin Marietta Materials, Inc.

Heavican, C.J., Wright, Miller-Lerman, Casse

Kelch, and Funke,

Kelch, 

NATURE OF CASE

This case involves a wrongful death action brought against 

Washington County (the County) for the death of James E. 

McGauley, a quarry worker who was killed while operating a dump truck on a road being built up by his employer, 

Martin Marietta Materials, Inc. (Marietta), on behalf of 

the County. The issue concerns whether the County had 
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McGAULEY v. WASHINGTON COUNT

Cite as 297 Neb. 134

sovereign immunity under the discretionary acts exclusion of 

the Political Subdivisions Tort Claims Act (PSTCA).1

FACTS

On May 31, 2011, the State of Nebraska and the Washington 

County Highway Superintendent (the Superintendent) declared 

a disaster because of severe flooding from the Missouri 

River. The County assigned the majority of its road construction staff to build a road providing access to a residential 

subdivision, while the remaining staff assisted with general 

measures to mitigate flood damage in the area. On June 3, 

the County formed an emergency flood subcommittee (the 

Subcommittee).

Marietta operated the only quarry in the County, and in early 

June 2011, the Army Corps of Engineers informed Marietta 

that the quarry was in imminent danger of flooding. Countyowned road CR P30 was the only access road to the quarry 

for truck traffic. CR P30 allowed Marietta to provide quarry 

materials to combat the flooding in other parts of the County. 

This road, nearly a mile long, provided a barrier between the 

floodwaters and the quarry. Unless the road were raised or 

some other action were taken, floodwaters would overtake the 

quarry, halting any work there.

On June 6, 2011, a representative of Marietta contacted 

the Superintendent, seeking permission to raise the height of 

CR P30. The Superintendent gave permission to undertake the 

project but advised the representative that the Subcommittee 

would have to approve it. Later that day, the Subcommittee 

met. Because the County lacked the resources and equipment 

to raise the road, the Subcommittee granted Marietta an oral 

easement to raise the road. A formal easement and an indemnification agreement were signed on June 13.

At the bench trial, members of the Subcommittee testified that they orally agreed to allow Marietta to take on the 

1 Neb. Rev. Stat. § 13-910(2) (Reissue 2012).
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project under the express condition that Marietta accept full 

responsibility. However, Marietta’s representative denied any 

discussion of liability.

CR P30’s construction was subject to Mine Health Safety 

Administration regulations. Marietta had experience building 

roads to those regulations’ standards within its quarry. To comply with the standards, Marietta took numerous safety precautions, including installing lights to provide partial illumination 

in the dark, placing 3-foot berms (raised rows of gravel and 

dirt) on each side of the road to warn drivers where the soft 

shoulder of the road began, and holding daily safety meetings 

before each shift. At the daily safety meetings, Marietta drivers 

were advised that the softness of the shoulders increased the 

probability of collapse. They were told to stay off the shoulders and to approach the berms slowly.

McGauley’s accident occurred around 4:45 a.m. on June 9, 

2011. By June 9, the road had been built 6 to 7 feet. While 

backing up to dump a load of rock, McGauley drove off the 

road onto the shoulder. The shoulder collapsed, and the truck 

flipped upside down into the floodwaters below. McGauley 

drowned. Because of the work being conducted on that part 

of road, there was no berm where McGauley’s accident 

occurred.

The County was not involved in the effort to build up 

CR P30. No one from the County provided instruction, assistance, or supervision. Following the June 6, 2011, meeting 

wherein the County granted the oral easement for Marietta 

to build up CR P30, the Superintendent considered the matter “out of [her] hands.” Nevertheless, she admitted that the 

County remained responsible for maintaining CR P30. She 

acknowledged that the County had previously exercised its 

municipal authority to clarify that it controlled CR P30 to 

Marietta’s predecessor.

At trial, the Superintendent testified that she visited the 

worksite twice and recognized that the construction of CR P30 

did not meet County standards. She also testified that a road 
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Cite as 297 Neb. 134

foreman for the County went to the worksite to observe, but 

that she did not send him and he was not involved in the work. 

The Superintendent testified that the County did not put any 

lighting, warning signs, or reflective delineators on the worksite during the week of June 6, 2011.

After McGauley’s death, the personal representative of 

his estate, Dawn McGauley, brought a wrongful death action 

against Marietta and the County. The County raised sovereign immunity as an affirmative defense and brought a 

cross-claim against Marietta. After a bench trial exclusively 

on the issue of sovereign immunity, the district court ruled 

that the discretionary function exception of the PSTCA 

applied, and therefore, the County had sovereign immunity. 

The district court dismissed the County’s cross-claim against 

Marietta. The personal representative of McGauley’s estate 

now appeals.

ASSIGNMENT OF ERROR

The personal representative of McGauley’s estate assigns, 

combined and restated, that the district court erred in dismissing her claims against the County on the ground that the 

County was protected by sovereign immunity.

STANDARD OF REVIEW

[1] A district court’s findings of fact in a proceeding under 

the PSTCA will not be set aside unless such findings are 

clearly erroneous.2

[2] To the extent that the meaning and interpretation of 

statutes and regulations are involved, questions of law are 

presented, in connection with which an appellate court has an 

obligation to reach an independent conclusion irrespective of 

the decision made by the court below.3

2 See Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (1993).

3 Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (2011).
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McGAULEY v. WASHINGTON COUNT

Cite as 297 Neb. 134

ANALYSIS

[3] The PSTCA provides limited waivers of sovereign 

immunity, which are subject to statutory exceptions.4 If a 

statutory exception applies, the claim is barred by sovereign 

immunity.5

[4,5] Here, we are concerned with the statutory exception provided by § 13-910(2), which is commonly known 

as the discretionary function exception. Under that exception, 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.”6

 We have 

said that the discretionary function exception extends only to 

basic policy decisions made in governmental activity at the 

operational level, and not to ministerial activities implementing such policy decisions.7

 The purpose of the discretionary 

function exception is to prevent judicial “second-guessing” 

of legislative and administrative decisions grounded in social, 

economic, and political policy through the medium of an 

action in tort.8

[6] To determine whether the discretionary function exception applies, we have set out a two-step analysis.9

 First, the 

court must consider whether the action is a matter of choice 

for the acting employee.10 Second, if the court concludes 

that the challenged conduct involves an element of judgment, it must then determine whether that judgment is of the 

4 Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).

5 Id.

6 § 13-910(2).

7 See Shipley, supra note 4.

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

9 Id.

10 Id.
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kind that the discretionary function exception was designed 

to shield.11

[7,8] Here, a third step is also involved. The personal representative of McGauley’s estate contends that the County had 

a nondiscretionary duty to provide a safe work environment. 

We have held that the discretionary function exception does 

not apply when the governmental entity has a “‘nondiscretionary duty to warn . . . or take other protective measures that 

may prevent injury as the result of the dangerous condition or 

hazard.’”12 Such a duty exists when

“(1) a governmental entity has actual or constructive 

notice of a dangerous condition or hazard caused by or 

under the control of the governmental entity and (2) the 

dangerous condition or hazard is not readily apparent to 

persons who are likely to be injured by the dangerous 

condition or hazard . . . .”13

Turning to the first step in determining whether the discretionary function exception applies, we conclude that the 

challenged conduct at issue here involves an element of judgment at the policymaking level. When confronted with the 

emergency situation of the flooding, and in light of its lack 

of resources, the County was effectively forced to choose 

between two less-than-ideal options: It could either (1) allow 

CR P30 to flood and Marietta to go out of business or (2) grant 

Marietta an easement and allow Marietta to use its resources to 

build up CR P30. The County chose the latter option.

Turning to the second step, we conclude that the judgment 

discussed above is clearly the kind that the discretionary 

function exception was designed to shield. The County’s decision to allow Marietta to build up CR P30 involved balancing 

the competing needs of commerce, retaining access to supplies needed to combat the flood in other areas, and flood 

11 Id.

12 Shipley, supra note 4, 283 Neb. at 846, 813 N.W.2d at 466.

13 Id. at 845-46, 813 N.W.2d at 465-66.
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and road safety—all of which the County had to balance in 

light of the emergency situation and its limited resources. 

This decision was clearly the type of economic, political, and 

social policy judgment that the discretionary function exception was designed to shield.14

Although the personal representative of McGauley’s estate 

concedes that the decision to allow Marietta to build up the 

road was a judgment that fell within the discretionary function 

exception to the PSTCA, she argues that the County’s decisions not to supervise Marietta’s work and not to enforce its 

own safety standards on Marietta were separate judgments that 

did not fall within the exception. We disagree.

The district court found, and the evidence supports, that the 

County did not have the resources to assist Marietta with the 

buildup. Supervising Marietta’s work and enforcing its own 

safety standards on Marietta were simply not options for the 

County. Thus, to the extent that any decision was made not to 

supervise Marietta or enforce safety standards, it was part of 

the County’s overall policymaking decision to allow Marietta 

to build up the road. Accordingly, the argument of the personal representative of McGauley’s estate argument that these 

decisions were separate, nondiscretionary judgments is without merit.

Finally, we turn to the third step in our analysis: whether the 

County had a nondiscretionary duty to provide a safe working 

environment on CR P30. As noted above, a nondiscretionary 

duty to warn or take other protective measures exists when (1) 

the governmental entity has notice of a dangerous condition 

or hazard caused by or under the control of the governmental 

entity and (2) the dangerous condition or hazard is not readily apparent to persons likely to be injured by the dangerous condition.

Here, such a duty does not exist, because regardless of 

whether the first element was met, the district court found and 

14 See McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002).
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we agree that the second element was clearly not met: The dangerous conditions present on CR P30 were not readily apparent 

to persons likely to be injured, i.e., the construction workers. As the district noted, Marietta workers were the persons 

likely to be injured by the dangerous conditions, and Marietta 

warned its workers of those conditions at safety meetings on 

several occasions prior to McGauley’s accident. The evidence 

shows that at the safety meetings, drivers such as McGauley 

were specifically warned to stay off the soft shoulders and to 

approach them slowly. The workers were also trained to operate the heavy equipment safely, including driving slowly when 

required, using signals to communicate with other operators, 

and keeping proper lookout for hazards.

McGauley was also personally aware of the dangerous conditions. Not only had McGauley backed up and unloaded his 

dump truck dozens of times already on CR P30, but McGauley 

had attended the safety meetings where the warnings were 

given. The district court found that on the morning of the accident, McGauley had attended a safety meeting, wherein he was 

warned to keep equipment in the center of the road.

Given the evidence set forth above, the district court found 

that “the dangerous conditions presented by the CR P30 construction project . . . were readily apparent to the . . . Marietta 

workers, including . . . McGauley.” Because of the evidence 

supporting this factual finding, we cannot say that such finding was clearly erroneous. Therefore, the County did not 

have a nondiscretionary duty to take protective measures, and 

McGauley’s assignment of error is without merit.

CONCLUSION

We find that the County’s decision to allow Marietta to build 

up the road was a discretionary function, not subject to the 

PSTCA. Therefore, the County has sovereign immunity, and 

the district court’s order dismissing McGauley’s claims against 

it is hereby affirmed.

Affirmed