Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/18/2017 09:09 AM CDT




                                                        - 134 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                        McGAULEY v. WASHINGTON COUNTY
                                               Cite as 297 Neb. 134




                            Dawn McGauley, as Personal R epresentative
                            of theEstate of James E. McGauley, deceased,
                           appellant, v. Washington County, a corporation
                               and political subdivision of the State of
                                  Nebraska, and M artin M arietta
                                      M aterials, Inc., appellees.
                                                   ___ 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 sov-
                     ereign 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 opera-
                     tional level, and not to ministerial activities implementing such pol-
                     icy 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
                                    - 135 -
             Nebraska Supreme Court A dvance Sheets
                     297 Nebraska R eports
                   McGAULEY v. WASHINGTON COUNTY
                          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 non-
      discretionary 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: John
E. Samson, Judge. Affirmed.
  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, Cassel, Stacy,
K elch, and Funke, JJ.
   K elch, J.
                     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 operat-
ing 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
                                     - 136 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                     McGAULEY v. WASHINGTON COUNTY
                            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 construc-
tion 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. County-
owned 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 indemni-
fication agreement were signed on June 13.
   At the bench trial, members of the Subcommittee testi-
fied that they orally agreed to allow Marietta to take on the

 1	
      Neb. Rev. Stat. § 13-910(2) (Reissue 2012).
                              - 137 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                McGAULEY v. WASHINGTON COUNTY
                       Cite as 297 Neb. 134

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 com-
ply with the standards, Marietta took numerous safety precau-
tions, 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 shoul-
ders 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, assist­
ance, 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 mat-
ter “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
                                     - 138 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                     McGAULEY v. WASHINGTON COUNTY
                            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 work-
site 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 sov-
ereign 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 dis-
missing 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).
                                    - 139 -
               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                     McGAULEY v. WASHINGTON COUNTY
                            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 excep-
tion provided by § 13-910(2), which is commonly known
as the discretionary function exception. Under that excep-
tion, 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 subdi-
vision, 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 implement-
ing 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 excep-
tion 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 judg-
ment, 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.
                                     - 140 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                     McGAULEY v. WASHINGTON COUNTY
                            Cite as 297 Neb. 134

kind that the discretionary function exception was designed
to shield.11
   [7,8] Here, a third step is also involved. The personal rep-
resentative 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 “‘nondiscretion-
ary 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 dis-
cretionary function exception applies, we conclude that the
challenged conduct at issue here involves an element of judg-
ment 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 deci-
sion to allow Marietta to build up CR P30 involved balancing
the competing needs of commerce, retaining access to sup-
plies 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.
                                    - 141 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                     McGAULEY v. WASHINGTON COUNTY
                            Cite as 297 Neb. 134

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 excep-
tion 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 deci-
sions 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 per-
sonal representative of McGauley’s estate argument that these
decisions were separate, nondiscretionary judgments is with-
out 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 read-
ily apparent to persons likely to be injured by the danger-
ous 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).
                              - 142 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                McGAULEY v. WASHINGTON COUNTY
                       Cite as 297 Neb. 134

we agree that the second element was clearly not met: The dan-
gerous conditions present on CR P30 were not readily apparent
to persons likely to be injured, i.e., the construction work-
ers. 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 oper-
ate 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 con-
ditions. 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 acci-
dent, 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 con-
struction project . . . were readily apparent to the . . . Marietta
workers, including . . . McGauley.” Because of the evidence
supporting this factual finding, we cannot say that such find-
ing 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.
                                                     A ffirmed.
