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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 exception 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.

Nebraska Supreme Court Online Library

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

04/01/2022 09:07 AM CDT
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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 fundamental 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 subdivisions 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).
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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 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. 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 sovereign 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 comply 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 jurisdiction is based.

20. Political Subdivisions Tort Claims Act: Liability. Under the discretionary function exemption of the Political Subdivisions Tort Claims 

Act, the performance or nonperformance of a discretionary function 

cannot be the basis of tort liability.
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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 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. 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 political 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 subdivision’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 
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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 subdivision 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 mixture. In July 2019, the Clarks began to notice damage to their 

corn crop. They suspected the damage was caused by the herbicide mixture used by Kriss.

On June 29, 2020, the Clarks’ attorney submitted a written 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 properly 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).
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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 regular monthly meeting. The minutes from the SID board meeting 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 capacity 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 mixture 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, citing 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 
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affidavit of the SID’s manager, which had as an attachment a 

copy of the minutes from the July 7, 2020, SID board meeting. 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 noncommercial 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 discretionary 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 labeling. 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 exemption, 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).
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a course of action. [Section 2-2643.01] prescribes a specific 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 improperly 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 district 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).
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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, appealable 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 create 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).
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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 judgment 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, ordinary, 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 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.” 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).
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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 maintained 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 limited 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 judgment 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.
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[14,15] But 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. 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 procedures 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 statutes in derogation of sovereign immunity, the presuit 

claim procedures do not identify the particular tort claims 

for which the State has conditionally waived its sovereign 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 failure 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.
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requirements 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 subdivision 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 requirements 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, appealable 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) represented 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 effective 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.
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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 characterized 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 affirmative 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 substance 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 present interlocutory appeal, we conclude that one of the SID’s 

30 Great Northern II, supra note 10.

31 See Saylor, supra note 23.
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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 exemption, 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 appellate 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 judgment 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 appellate 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 jurisdiction 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).
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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 discretionary function exemption barred the Clarks’ claims.

[20] Under the discretionary function exemption, 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.” 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 exemption, because conduct cannot be discretionary unless it involves 

an element of judgment or choice. 39 Second, if the court concludes 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).
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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 herbicide 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 discretionary 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 allegedly 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.
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control agent.” 43 As such, the statutory definition of “pesticide” 

includes herbicides. The stated purpose of the act is “to regulate, 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 agricultural production and to the protection of humans and the environment 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 ordinance 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 subdivisions 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 herbicides, 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.
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from using a pesticide in a manner inconsistent with its labeling. 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 mixing, using, and applying the herbicide mixture, those provisions 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).
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discretionary function exemption. The SID’s motion for summary judgment based on the discretionary function exemption 

was properly denied.

CONCLUSION

For the foregoing reasons, we affirm the order of the district 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.