2023 Nebraska Revised Statutes › Chapter 13 - Cities, Counties, and Other Political Subdivisions › 13-910 - Act and sections; exemptions.

13-910.
Act and sections; exemptions.
The Political Subdivisions Tort Claims Act and sections 16-727, 16-728, 23-175, 39-809, and 79-610 shall not apply to:
(1) Any claim based upon an act or omission of an employee of a political subdivision, exercising due care, in the execution of a statute, ordinance, or officially adopted resolution, rule, or regulation, whether or not such statute, ordinance, resolution, rule, or regulation is valid;
(2) 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;
(3) Any claim based upon the failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by or leased to such political subdivision to determine whether the property complies with or violates any statute, ordinance, rule, or regulation or contains a hazard to public health or safety unless the political subdivision had reasonable notice of such hazard or the failure to inspect or inadequate or negligent inspection constitutes a reckless disregard for public health or safety;
(4) Any claim based upon the issuance, denial, suspension, or revocation of or failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, or order. Nothing in this subdivision shall be construed to limit a political subdivision's liability for any claim based upon the negligent execution by an employee of the political subdivision in the issuance of a certificate of title under the Motor Vehicle Certificate of Title Act and the State Boat Act except when such title is issued upon an application filed electronically by an approved licensed dealer participating in the electronic dealer services system pursuant to section 60-1507;
(5) Any claim arising with respect to the assessment or collection of any tax or fee or the detention of any goods or merchandise by any law enforcement officer;
(6) Any claim caused by the imposition or establishment of a quarantine by the state or a political subdivision, whether such quarantine relates to persons or property;
(7) Any claim arising out of assault, battery, false arrest, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, except that this subdivision does not apply to a claim under the Healthy Pregnancies for Incarcerated Women Act;
(8) Any claim by an employee of the political subdivision which is covered by the Nebraska Workers' Compensation Act;
(9) Any claim arising out of the malfunction, destruction, or unauthorized removal of any traffic or road sign, signal, or warning device unless it is not corrected by the political subdivision responsible within a reasonable time after actual or constructive notice of such malfunction, destruction, or removal. Nothing in this subdivision shall give rise to liability arising from an act or omission of any political subdivision in placing or removing any traffic or road signs, signals, or warning devices when such placement or removal is the result of a discretionary act of the political subdivision;
(10) Any claim arising out of snow or ice conditions or other temporary conditions caused by nature on any highway as defined in section 60-624, bridge, public thoroughfare, or other public place due to weather conditions. Nothing in this subdivision shall be construed to limit a political subdivision's liability for any claim arising out of the operation of a motor vehicle by an employee of the political subdivision while acting within the course and scope of his or her employment by the political subdivision;
(11) Any claim arising out of the plan or design for the construction of or an improvement to any highway as defined in such section or bridge, either in original construction or any improvement thereto, if the plan or design is approved in advance of the construction or improvement by the governing body of the political subdivision or some other body or employee exercising discretionary authority to give such approval;
(12) Any claim arising out of the alleged insufficiency or want of repair of any highway as defined in such section, bridge, or other public thoroughfare. Insufficiency or want of repair shall be construed to refer to the general or overall condition and shall not refer to a spot or localized defect. A political subdivision shall be deemed to waive its immunity for a claim due to a spot or localized defect only if (a) the political subdivision has had actual or constructive notice of the defect within a reasonable time to allow repair prior to the incident giving rise to the claim or (b) the claim arose during the time specified in a notice provided by the political subdivision pursuant to subsection (3) of section 39-1359 and the state or political subdivision had actual or constructive notice; or
(13)(a) Any claim relating to recreational activities for which no fee is charged (i) resulting from the inherent risk of the recreational activity, (ii) arising out of a spot or localized defect of the premises unless the spot or localized defect is not corrected by the political subdivision leasing, owning, or in control of the premises within a reasonable time after actual or constructive notice of the spot or localized defect, or (iii) arising out of the design of a skatepark or bicycle motocross park constructed for purposes of skateboarding, inline skating, bicycling, or scootering that was constructed or reconstructed, reasonably and in good faith, in accordance with generally recognized engineering or safety standards or design theories in existence at the time of the construction or reconstruction. For purposes of this subdivision, a political subdivision shall be charged with constructive notice only when the failure to discover the spot or localized defect of the premises is the result of gross negligence.
(b) For purposes of this subdivision:
(i) Recreational activities include, but are not limited to, whether as a participant or spectator: Hunting, fishing, swimming, boating, camping, picnicking, hiking, walking, running, horseback riding, use of trails, nature study, waterskiing, winter sports, use of playground equipment, biking, roller blading, skateboarding, golfing, athletic contests; visiting, viewing, or enjoying entertainment events, festivals, or historical, archaeological, scenic, or scientific sites; and similar leisure activities;
(ii) Inherent risk of recreational activities means those risks that are characteristic of, intrinsic to, or an integral part of the activity;
(iii) Gross negligence means the absence of even slight care in the performance of a duty involving an unreasonable risk of harm; and
(iv) Fee means a fee to participate in or be a spectator at a recreational activity. A fee shall include payment by the claimant to any person or organization other than the political subdivision only to the extent the political subdivision retains control over the premises or the activity. A fee shall not include payment of a fee or charge for parking or vehicle entry.
(c) This subdivision, and not subdivision (3) of this section, shall apply to any claim arising from the inspection or failure to make an inspection or negligent inspection of premises owned or leased by the political subdivision and used for recreational activities.
Source
Laws 1969, c. 138, § 9, p. 629;
Laws 1986, LB 811, § 10;
R.S.Supp.,1986, § 23-2409;
Laws 1992, LB 262, § 8;
Laws 1993, LB 370, § 2;
Laws 1996, LB 900, § 1025;
Laws 1999, LB 228, § 1;
Laws 2004, LB 560, § 1;
Laws 2005, LB 276, § 98;
Laws 2007, LB564, § 2;
Laws 2011, LB589, § 2;
Laws 2017, LB263, § 1;
Laws 2019, LB690, § 8.
Cross References
Healthy Pregnancies for Incarcerated Women Act, see section 47-1001.
Motor Vehicle Certificate of Title Act, see section 60-101.
Nebraska Workers' Compensation Act, see section 48-1,110.
State Boat Act, see section 37-1201.
Annotations
1. Discretionary function
2. Due care
3. Intentional torts
4. Governmental immunity
5. Miscellaneous
1. Discretionary function
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. Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
When an employee of a political subdivision has no choice but to adhere to a statutorily prescribed course of conduct, the discretionary function exemption does not apply. Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
A school's decision to enforce a "no dogs" policy only during school hours and to not supervise the playground area after school hours involved judgment shielded by the discretionary function exception. Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 (2020).
Cases construing the discretionary function exception under the State Tort Claims Act apply as well to the discretionary function exception granted to political subdivisions in the Political Subdivisions Tort Claims Act. Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018).
A county does not have a nondiscretionary duty to provide a safe working environment where the dangerous condition present is readily apparent to persons likely to be injured by the dangerous condition. McGauley v. Washington County, 297 Neb. 134, 897 N.W.2d 851 (2017).
A county's decision to grant a quarry easement for the purpose of building up a county road that was at risk of flooding came within the discretionary function exception to the waiver of sovereign immunity under the Political Subdivisions Tort Claims Act. McGauley v. Washington County, 297 Neb. 134, 897 N.W.2d 851 (2017).
A county waived its claim that it was entitled to sovereign immunity by failing to identify immunity under the discretionary function exception as an issue for trial in the pretrial order. Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014).
Sovereign immunity barred a claim against the State of Nebraska and Cass County concerning a sight-restricted railroad crossing at which a collision occurred because neither the State nor the county had any mandatory legal duty to improve any sight restrictions at the crossing. Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
Sovereign immunity barred a claim against the State of Nebraska and Cass County concerning the lack of pavement markings at a railroad crossing at which a collision occurred because the decision of whether to place pavement markings at the crossing was discretionary. Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
Sovereign immunity barred failure-to-warn claim concerning a sight-restricted railroad crossing; neither the State of Nebraska nor Cass County had a nondiscretionary duty to warn where the truck wash facility alleged to be the cause of the sight restriction was built by a private party on private property and was readily apparent to a motorist approaching the crossing. Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
In order for the discretionary function exception under subsection (2) of this section to apply, the evidence must show facts of the specific policy and conduct in accordance with that policy. Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
Once a city elects to install a pedestrian crosswalk signal, it is required to conform to the Manual on Uniform Traffic Control Devices in determining the pedestrian clearance interval, and the discretionary immunity exception of this section does not apply. Tadros v. City of Omaha, 269 Neb. 528, 694 N.W.2d 180 (2005).
The placement of traffic control devices is a discretionary function of a political subdivision under subsection (2) of this section. McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002).
The discretionary function exemption provided for in subsection (2) of this section extends only to basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions. Norman v. Ogallala Pub. Sch. Dist., 259 Neb. 184, 609 N.W.2d 338 (2000).
The discretionary function exception is expressed in nearly identical language in the State Tort Claims Act and the Political Subdivisions Tort Claims Act; thus, cases construing the state exception apply as well to the exception granted to political subdivisions. The discretionary function exceptions to the general waiver of tort immunity are matters of defense which must be pled and proved by a political subdivision. Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d 605 (1998).
Pursuant to subsection (2) of this section, the discretionary function exemption applies only to basic policy decisions and not to the exercise of discretionary acts at an operational level. A county attorney's actions in collecting unpaid child support are operational in nature rather than a basic policy decision. Talbot v. Douglas County, 249 Neb. 620, 544 N.W.2d 839 (1996).
Under the provisions of subsection (2) of this section, the performance or nonperformance of a discretionary function cannot be the basis of liability. Whether the undisputed facts demonstrate that liability is precluded by the discretionary function exemption is a question of law. As the discretionary function exemption is expressed in nearly identical language in section 81-8,219(1)(a) of the State Tort Claims Act and subsection (2) of this section of the Political Subdivisions Tort Claims Act, cases construing the state exemption apply as well to the exemption given political subdivisions. The county health department's reporting and investigating a reported case of bacterial meningitis fall within the discretionary function precluding liability under the Political Subdivisions Tort Claims Act. Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994).
Pursuant to subsection (2) of this section, whether undisputed facts demonstrate that liability is precluded by the discretionary function exemption of the Political Subdivisions Tort Claims Act is a question of law. Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80 (1993).
The discretionary function or duty exemption in the Political Subdivisions Tort Claims Act extends only to the basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions. In other words, the political subdivision is liable for the negligence of its employees at the operational level, where there is no room for policy judgment. Hamilton v. City of Omaha, 243 Neb. 253, 498 N.W.2d 555 (1993).
Where a county legislative body delegates duties to a county official, and gives that official discretion in performing those duties within broad overall guidelines, actions of that county official in issuing permits are discretionary functions within the meaning of subsection (2) of this section. Allen v. County of Lancaster, 218 Neb. 163, 352 N.W.2d 883 (1984).
Decisions on selection of a foster home for a dependent child are not policy decisions or discretionary functions contemplated as exceptions within this section of the Political Subdivisions Tort Claims Act. Koepf v. County of York, 198 Neb. 67, 251 N.W.2d 866 (1977).
The decision by a government employee as to the manner of operation of a snowblower is the type of discretion exercised at an everyday operational level such that the discretionary function exemption does not apply. Conditions caused by the operation of a snowblower were the underlying cause of the accident, separate and independent from the wind and snow in the area at the time of the accident, and the operation of the snowblower was a proximate cause of the accident and injuries. Thus, the State was not immune from suit under subsection (10) of this section. Stinson v. City of Lincoln, 9 Neb. App. 642, 617 N.W.2d 456 (2000).
The performance or nonperformance of a discretionary function cannot be the basis of liability under the Political Subdivisions Tort Claims Act. The discretionary function exemption under the Political Subdivisions Tort Claims Act extends only to basic policy decisions and not to the exercise of discretionary acts at an operational level. A simple decision whether to dispatch an officer to the scene of a crime or to investigate a crime, without more, does not involve a basic policy decision by a high-level executive which would render the decisionmaker immune from suit. Whether the undisputed facts demonstrate that liability is precluded by the discretionary function exemption of the Political Subdivisions Tort Claims Act is a question of law. Stinson v. City of Lincoln, 9 Neb. App. 642, 617 N.W.2d 456 (2000).
2. Due care
In order for the due care exception under subsection (1) of this section to apply, an adequate factual record must exist. Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
A police officer's failure to "safely" keep a seized vehicle can give rise to liability under the Political Subdivisions Tort Claims Act. Section 29-818 requires a police officer to exercise reasonable care and diligence for the safekeeping of property within his custody. Nash v. City of North Platte, 205 Neb. 480, 288 N.W.2d 51 (1980).
3. Intentional torts
If recovery for the injury in question depends upon an intentional, harmful, or offensive contact's being unprivileged, then it depends also upon a battery and is "arising from" it for purposes of subdivision (7) of this section. Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).
The intentional tort exemption reflects public policy determinations against allowing government employees to engage, at the government's expense, in lawless activities that are practically, if not legally, outside the scope of their proper functions and which are contrary to the promotion of high standards of performance by a sovereign's employees. Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).
To determine the gravamen of a complaint, a court looks to whether the plaintiff has alleged an injury independent of that caused by the excluded acts, i.e., that the injury is linked to a duty to act that is entirely separate from the acts expressly excluded from the statutory waiver of sovereign immunity. Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).
All claims arising out of an assault are exempted from the waiver of sovereign immunity; the waiver is not limited to only those claims arising out of assaults committed by governmental employees. Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
When a tort claim against the government seeks to recover damages for personal injury or death stemming from an assault, the claim necessarily "arises out of the assault" and is barred by the intentional tort exception to the waiver of sovereign immunity. Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
This section sets forth specific claims that are exempt from the waiver of sovereign immunity, including any claim arising out of assault, battery, false arrest, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. This is sometimes referred to as the "intentional torts exception." Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019).
When conduct arises out of a battery, it falls within subdivision (7) of this section, and the political subdivision is not liable for damages resulting from the battery, even when the pleaded conduct is characterized or framed as negligence. Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019).
In deciding whether conduct falls within the battery exception to the Political Subdivisions Tort Claims Act, it is only necessary to determine whether the conduct arises out of a battery; no determination has to be made as to whether the actor ultimately could be held liable for any damage resulting from the battery, based on the presence or absence of affirmative defenses. Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).
When the gravamen of the complaint is negligent performance of operational tasks rather than misrepresentation, a political subdivision cannot rely upon the misrepresentation exception in subdivision (7) of this section of the Political Subdivisions Tort Claims Act. Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010).
The intentional tort exception under subsection (7) of this section does not apply to bar negligence claims against a defendant alleging a breach of an independent duty, unrelated to any possible employment relationship between the assailant and the defendant, to take reasonable steps to prevent an intentional tort. Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
4. Governmental immunity
The Political Subdivisions Tort Claims Act provides a list of claims for which sovereign immunity is not waived. McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009).
The exceptions set forth in this section are affirmative sovereign immunity defenses to claims brought pursuant to the Political Subdivisions Tort Claims Act. If a political subdivision proves that a plaintiff's claim comes within an exception pursuant to this section, then the claim fails based on sovereign immunity, and the political subdivision is not liable. Harris v. Omaha Housing Auth., 269 Neb. 981, 698 N.W.2d 58 (2005).
The common law rule of governmental immunity has not been completely abrogated in Nebraska, and an action for damages for misrepresentation and deceit is not permitted. Hall v. Abel Inv. Co., 192 Neb. 256, 219 N.W.2d 760 (1974).
The common law rule of governmental immunity has not been completely abrogated in this state and actions at law for false arrest, false imprisonment, and libel and slander remain subject thereto. Webber v. Andersen, 187 Neb. 9, 187 N.W.2d 290 (1971).
5. Miscellaneous
"[O]ther public place" under subdivision (10) of this section included a sidewalk leading from a community center to a parking lot. Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
As used in subdivision (9) of this section, the term "malfunction" does not mean lack of efficacy. Blaser v. County of Madison, 288 Neb. 306, 847 N.W.2d 293 (2014).
Political subdivisions are not liable under subsection (4) of this section for actions based upon the revocation of a license or permit. Rohde v. City of Ogallala, 273 Neb. 689, 731 N.W.2d 898 (2007).
A claim alleging that an employee acting within the course and scope of his employment caused a motor vehicle accident by failing to stop on a rain-slicked street is a claim within and subject to the provisions of the Political Subdivisions Tort Claims Act. Wise v. Omaha Public Schools, 271 Neb. 635, 714 N.W.2d 19 (2006).
Acts undertaken to assist in the assessment and collection of taxes are immune from liability under subsection (5) of this section. Butler Cty. Sch. Dist. No. 502 v. Meysenburg, 268 Neb. 347, 683 N.W.2d 367 (2004).
The question whether a city is immune from liability depends upon whether the city had reasonable notice of any hazard or whether its failure to inspect or its negligent inspection constituted a reckless disregard for public health or safety. Mondelli v. Kendel Homes Corp., 262 Neb. 263, 631 N.W.2d 846 (2001).
Pursuant to subsection (10) of this section, the snow and ice exemption is not applicable to a plaintiff injured after slipping on snow when the petition alleged negligence in a college's failure to maintain safe ingress and egress to, from, and across property and a failure to monitor and remove hazardously parked vehicles. McDonald v. DeCamp Legal Servs., P.C., 260 Neb. 729, 619 N.W.2d 583 (2000).
Subsection (10) of this section does not exempt a claim arising out of events occurring under darkness because mere darkness is not a temporary condition due to weather. Drake v. Drake, 260 Neb. 530, 618 N.W.2d 650 (2000).
The Political Subdivisions Tort Claims Act eliminates the need for the doctrine by which a claimant is required to prove that the negligent act was committed by the municipal employee in furtherance of a private duty owed to the claimant. Maple v. City of Omaha, 222 Neb. 293, 384 N.W.2d 254 (1986).
When 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 the dangerous condition or hazard is not readily apparent to persons who are likely to be injured by the dangerous condition or hazard, the governmental entity has a nondiscretionary duty to warn of the danger or take other protective measures that may prevent injury as the result of the dangerous condition or hazard. Stinson v. City of Lincoln, 9 Neb. App. 642, 617 N.W.2d 456 (2000).