Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 08:07 AM CDT




                                                         - 192 -
                               Nebraska Supreme Court Advance Sheets
                                        306 Nebraska Reports
                                        LAMBERT v. LINCOLN PUBLIC SCHOOLS
                                                 Cite as 306 Neb. 192




                       Jena Lambert, individually and as guardian and
                           next friend of Olivia Lambert, a minor,
                                appellant, v. Lincoln Public
                                  Schools et al., appellees.
                                                     ___ N.W.2d ___

                                           Filed June 19, 2020.    No. S-19-620.

                 1. Summary Judgment: Appeal and Error. An appellate court affirms a
                    lower court’s grant of summary judgment if the pleadings and admitted
                    evidence show that there is no genuine issue as to any material facts or
                    as to the ultimate inferences that may be drawn from the facts and that
                    the moving party is entitled to judgment as a matter of law.
                 2. ____: ____. In reviewing a summary judgment, an appellate court views
                    the evidence in the light most favorable to the party against whom the
                    judgment was granted, and gives that party the benefit of all reasonable
                    inferences deducible from the evidence.
                 3. Political Subdivisions Tort Claims Act: Liability. Whether undisputed
                    facts demonstrate that liability is precluded by the discretionary function
                    exception of the Political Subdivisions Tort Claims Act is a question
                    of law.
                 4. Jurisdiction. Whether a court has subject matter jurisdiction is a thresh-
                    old issue that should be resolved prior to an examination of the merits.
                 5. Political Subdivisions Tort Claims Act: Dismissal and Nonsuit:
                    Immunity. In cases under the Political Subdivisions Tort Claims Act, if
                    the discretionary function exception applies, the political subdivision is
                    immune from suit and the proper remedy is to dismiss the action for lack
                    of subject matter jurisdiction.
                 6. Tort Claims Act: Political Subdivisions Tort Claims Act: Jurisdiction:
                    Dismissal and Nonsuit. Because it presents a jurisdictional question,
                    courts should determine the applicability of a statutory exception under
                    the Political Subdivisions Tort Claims Act or the State Tort Claims Act
                    before considering nonjurisdictional grounds for dismissal.
                                   - 193 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                 LAMBERT v. LINCOLN PUBLIC SCHOOLS
                          Cite as 306 Neb. 192

7. Tort Claims Act: Political Subdivisions Tort Claims Act. The purpose
   of the discretionary function exception of the State Tort Claims Act and
   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.
   It does not extend to the exercise of discretionary acts at an operational
   level, where there is no room for policy judgment. It is the nature of
   the conduct, rather than the status of the actor, that governs whether the
   discretionary function applies in a given case.
8. ____: ____. A two-part analysis determines whether the discretion-
   ary function exception applies. First, the court must consider whether
   the action is a matter of choice for the acting political subdivision or
   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.

  Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
  John P. Weis, of Wolfe, Snowden, Hurd, Ahl, Sitzmann,
Tannehill & Hahn, L.L.P., for appellant.
  Joshua J. Schauer and Haleigh B. Carlson, of Perry, Guthery,
Haase & Gessford, P.C., L.L.O., for appellee Lincoln Public
Schools.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Stacy, J.
   A minor child and her mother were bitten by a dog on a
public school playground after students had been dismissed
for the day. They filed a tort action under the Political
Subdivisions Tort Claims Act (PSTCA) 1 generally alleging
Lincoln Public Schools (LPS) was negligent in failing to
enforce a policy of “no dogs” on the playground and in failing
to supervise the playground area after classroom instruction
ended. The district court granted LPS’ motion for summary
1
    Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
                                 - 194 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                   LAMBERT v. LINCOLN PUBLIC SCHOOLS
                            Cite as 306 Neb. 192

judgment, finding that LPS was immune from suit under the
discretionary function exception 2 to the PSTCA and, alterna-
tively, finding that LPS owed no legal duty under the circum-
stances. A timely appeal was filed, and we moved the case to
our docket.
   Because we agree LPS is immune from suit under the dis-
cretionary function exception, we affirm.
                       I. BACKGROUND
   LPS is a political subdivision of the State of Nebraska. LPS
operates Sheridan Elementary School (Sheridan) in Lincoln,
Nebraska. At all relevant times, Olivia Lambert was a student
at Sheridan.
                          1. Dog Bite
   On April 4, 2016, Sheridan dismissed students at 3:38 p.m.,
the normal time. Olivia’s mother, Jena Lambert, waited at the
dismissal door for Olivia to arrive, after which they walked
to the playground area on the south side of Sheridan, where
they joined other parents and students who were using the
playground.
   At approximately 4 p.m., Kristine A. Griffin and Brian T.
Griffin, and their 8-year-old son, arrived at the Sheridan play-
ground. Kristine walked the family’s dog, on a leash, on the
city streets near the playground area. When Kristine asked
her son to hold the leash while she cleaned up after the dog,
he took the dog onto the Sheridan playground where Olivia
was playing. The dog bit Olivia’s hand, and while Jena was
attempting to help Olivia, the dog bit Jena’s abdomen.
   Both Olivia and Jena were taken to a local hospital where
they received medical care. Olivia’s injury required surgery.
                          2. Lawsuit
   Jena, individually and as guardian and next friend of Olivia
(collectively the Lamberts), filed this tort action against the
Griffins and against LPS. The parties do not dispute that
2
    § 13-910(2).
                             - 195 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
             LAMBERT v. LINCOLN PUBLIC SCHOOLS
                      Cite as 306 Neb. 192

the Lamberts complied with the presuit notice requirements
of the PSTCA before commencing the action. The opera-
tive amended complaint alleged the Griffins were negligent
in not properly confining and restraining their dog, and it
alleged LPS was negligent in failing to properly supervise and
monitor the Sheridan playground area and in failing to enforce
Sheridan’s “no dogs” policy.
   The Griffins did not file a responsive pleading, and even-
tually, the Lamberts moved for default judgment. The dis-
trict court granted the motion, entering judgment against the
Griffins and in favor of the Lamberts in the total amount of
$140,000. No party has appealed that judgment.
   LPS moved for summary judgment arguing, among other
things, that LPS owed no legal duty to the Lamberts on these
facts and that LPS was immune from suit under the discretion-
ary function exception of the PSTCA. Based on the evidence
received at the summary judgment hearing, the trial court
found the following facts were undisputed:
                         (a) School Hours
   At Sheridan, the schoolday begins at 8:50 a.m. and ends at
3:45 p.m. Classroom instruction begins at 9 a.m. and ends at
3:38 p.m. The student dismissal period begins once classroom
instruction is over and ends at 3:50 p.m. Sheridan teachers are
required to be at work from 8:15 a.m. to 3:45 p.m., and the
school office closes at 4:30 p.m. Sheridan staff often remain in
the school building past the 3:50 p.m. student dismissal time.
After the student dismissal period, some Sheridan students
remain in the school building as late as 4:40 p.m. to engage
in non-LPS activities such as clubs sponsored by the parent-
teacher organization or “Family Services” activities. LPS does
not administer or supervise these after-school activities.
   On the afternoon of April 4, 2016, when the dog bites
occurred, it was after the regular schoolday had ended and after
Sheridan students had been dismissed. Jena and Olivia were
not on the Sheridan playground in connection with an after-
school activity or club.
                             - 196 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
              LAMBERT v. LINCOLN PUBLIC SCHOOLS
                       Cite as 306 Neb. 192

                   (b) LPS Policy on Animals
   On April 4, 2016, LPS “Regulation 3971.1” provided in
relevant part:
         Animals at large. It shall be unlawful for any person
      to allow or permit any dog or other animal to run at large
      on any school ground. The term “at large” is defined to
      mean not under the control of any person either by leash,
      cord, chain, or confinement within a vehicle or pen or
      other similar enclosure.
   The LPS assistant superintendent for general administra-
tion and governmental relations testified that on April 4, 2016,
the official LPS policy was that a dog was allowed on school
grounds it if was on a leash and under control. He testified that
this policy generally applied only during the schoolday, and he
defined the term “schoolday” as beginning when students can
arrive at school and ending when students are dismissed.
                     (c) Other LPS Policies
   LPS policies give the administrators and supervisory staff at
individual schools full power and authority to implement and
enforce restrictions on the use of school grounds. Additionally,
each school is authorized to determine how long before and
after the student schoolday staff is required to be on site, and
the principal designates which staff is required to serve on
playground, lunchroom, and hall supervision.
                 (d) Sheridan’s Policy on Dogs
   Sheridan has adopted a policy on dogs that is more restric-
tive than the LPS regulation on animals. According to
Sheridan’s principal, on April 4, 2016, the policy at Sheridan
was “no dogs on school grounds.” The principal testified that
this “no dogs” policy was mentioned in the school handbook
and in school newsletters, and a sign near the Sheridan play-
ground had a red strike through an image of a dog, indicat-
ing dogs are not allowed. Both the principal and a Sheridan
teacher testified that if Sheridan staff see people with dogs
on school grounds during school hours, even on leashes, they
                               - 197 -
              Nebraska Supreme Court Advance Sheets
                       306 Nebraska Reports
                 LAMBERT v. LINCOLN PUBLIC SCHOOLS
                          Cite as 306 Neb. 192

ask them to remove the dog from school grounds. The prin-
cipal also testified that Sheridan’s “no dogs” policy applies
only during school hours, from 8:50 a.m. to 3:45 p.m., and
that once the schoolday ends, Sheridan staff do not monitor
the playground area and it becomes “kind of like a park . . .
after hours.”
                 (e) Summary Judgment Order
   The district court granted summary judgment in favor of
LPS and dismissed the Lamberts’ tort action with prejudice. It
concluded that summary judgment was appropriate on several
grounds, including that LPS had no legal duty and that the
Lamberts’ claim was barred under the discretionary function
exception under the PSTCA 3.
   Regarding Sheridan’s “no dogs” policy, the district court
found the evidence was undisputed that Sheridan had a policy
that no dogs were permitted on the school grounds and that this
policy was limited to regular school hours. It found that the
decision of Sheridan administrators not to supervise or monitor
the playground area after school hours, and thus not to enforce
the “no dogs” policy after school hours, was an administrative
decision grounded in social, economic, and political policy and
was the type of decision that fell squarely within the discre-
tionary function exception.
   The Lamberts filed this timely appeal, which we moved to
our docket on our own motion.
                II. ASSIGNMENTS OF ERROR
   The Lamberts assign, restated and summarized, that the dis-
trict court erred in (1) determining the discretionary function
exception applied to bar the Lamberts’ claim and (2) finding
LPS owed no legal duty under the circumstances.
              III. STANDARD OF REVIEW
  [1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
3
    See id.
                                   - 198 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                 LAMBERT v. LINCOLN PUBLIC SCHOOLS
                          Cite as 306 Neb. 192

show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law. 4 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 5
   [3] Whether undisputed facts demonstrate that liability
is precluded by the discretionary function exception of the
PSTCA is a question of law. 6

                         IV. ANALYSIS
   Before we review the lower court’s decision to grant sum-
mary judgment based on the discretionary function exception,
we comment briefly on the order in which a court should
address multiple grounds for dismissal. In cases such as this
one, where the political subdivision seeks summary judgment
on a number of different grounds, courts should address as a
threshold matter any grounds which are jurisdictional.
   [4-6] Whether a court has subject matter jurisdiction is a
threshold issue that should be resolved prior to an examina-
tion of the merits. 7 In cases under the PSTCA, if the discre-
tionary function exception applies, the political subdivision
is immune from suit 8 and the proper remedy is to dismiss
the action for lack of subject matter jurisdiction. 9 Because
4
    Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019).
5
    Id.
6
    See Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80
    (1993).
7
    Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019).
8
    See McGauley v. Washington County, 297 Neb. 134, 897 N.W.2d 851
    (2017).
9
    Reiber v. County of Gage, 303 Neb. 325, 341, 928 N.W.2d 916, 928 (2019)
    (“[a] suit that is barred by sovereign immunity is dismissed for lack of
    subject matter jurisdiction”).
                                 - 199 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                 LAMBERT v. LINCOLN PUBLIC SCHOOLS
                          Cite as 306 Neb. 192

it presents a jurisdictional question, courts should determine
the applicability of a statutory exception under either the
PSTCA or the State Tort Claims Act (STCA) 10 before consid-
ering nonjurisdictional grounds for summary judgment.
               1. Applicable Legal Standards
   The discretionary function exception is codified at
§ 13-910(2) and provides 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.” A simi-
lar provision is contained in the STCA, and we have held that
cases construing the STCA’s discretionary function exception
are equally applicable to cases under the PSTCA. 11
   [7] The purpose of the discretionary function exception
of the STCA and the PSTCA is to prevent judicial “second-
guessing” of legislative and administrative decisions grounded
in social, economic, and political policy through the medium
of action in tort. 12 It does not extend to the exercise of discre-
tionary acts at an operational level, where there is no room for
policy judgment. 13 It is the nature of the conduct, rather than
the status of the actor, that governs whether the discretionary
function applies in a given case. 14
   [8] A two-part analysis determines whether the discretion-
ary function exception applies. 15 First, the court must consider
whether the action is a matter of choice for the acting politi-
cal subdivision or employee. 16 Second, if the court concludes
10
     Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).
11
     See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
     (2012).
12
     Id.
13
     Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).
14
     Id.
15
     See McGauley, supra note 8.
16
     See id.
                                   - 200 -
             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                  LAMBERT v. LINCOLN PUBLIC SCHOOLS
                           Cite as 306 Neb. 192

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. 17
Examples of discretionary functions include the initiation of
programs and activities, establishment of plans and schedules,
and judgmental decisions within a broad regulatory framework
lacking specific standards. 18
                   2. Lamberts’ Arguments
   In arguing that the district court erred in applying the dis-
cretionary function exception, the Lamberts present two argu-
ments. First, they argue there is a genuine factual dispute about
whether Sheridan’s “no dogs” policy actually extended beyond
school hours. Second, and primarily, they argue the failure of
LPS employees to enforce Sheridan’s “no dogs” policy was
an operational judgment, and not the kind of judgment the
discretionary function exception was meant to shield. 19 As we
explain below, neither argument has merit.
       (a) No Genuine Issue of Material Fact Regarding
            Scope of Sheridan’s “No Dogs” Policy
   We find no support in the record for the Lamberts’ sugges-
tion that there is a genuine issue of material fact regarding
whether Sheridan’s “no dogs” policy extended beyond the
hours students were in school. The Lamberts cite to depo-
sition testimony from a Sheridan teacher who also taught
after-school clubs pursuant to an agreement with Sheridan’s
parent-teacher organization. This teacher testified that when
students were dismissed from the after-school clubs, she, or
another person paid by the parent-teacher organization, would
stay with the students until they were picked up by a parent.
Even construing this testimony in the light most favorable to
the Lamberts and giving them every reasonable inference, this
17
     Id.
18
     Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).
19
     See McGauley, supra note 8.
                                  - 201 -
              Nebraska Supreme Court Advance Sheets
                       306 Nebraska Reports
                   LAMBERT v. LINCOLN PUBLIC SCHOOLS
                            Cite as 306 Neb. 192

testimony had nothing to do with LPS employees monitoring
the playground area or enforcing the “no dogs” policy after
hours. There is nothing about this testimony that creates a
genuine issue of material fact concerning whether Sheridan’s
“no dogs” policy extended beyond regular school hours.
   To the contrary, we agree with the district court that the
undisputed evidence in the record demonstrates that Sheridan’s
“no dogs” policy applied, and was enforced, only during
regular school hours, but not after students were dismissed for
the day.
             (b) Discretionary Function Exception
                       Correctly Applied
   The Lamberts concede that the decision of Sheridan admin-
istrators to adopt a “no dogs” policy was a discretionary
function, but they argue that the failure to enforce that policy
after school hours was a “failure on the operational level by
the employees to enforce the policy Sheridan had decided
to put in place.” 20 Their argument in this regard is premised
on the assumption that Sheridan’s “no dogs” policy applied
after school hours and therefore should have been enforced
after school hours. But this assumption finds no support in
the evidence.
   As already stated, the evidence was undisputed that
Sheridan’s policy was not to allow dogs on the school grounds
during school hours, even on leashes, but that the “no dogs”
policy did not apply after regular school hours. And to the
extent the Lamberts can be understood to argue that Sheridan
negligently adopted a policy prohibiting dogs on school
grounds only during school hours, or that Sheridan negligently
decided not to supervise the playground after students were
dismissed for the day, we find such conduct falls squarely
within the discretionary function exception.
   On this record, both steps of the discretionary function
analysis are met. Sheridan’s decision to enforce its “no dogs”
20
     Brief for appellant at 21.
                                    - 202 -
             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                 LAMBERT v. LINCOLN PUBLIC SCHOOLS
                          Cite as 306 Neb. 192

policy only during school hours, and its decision not to super-
vise the playground area at all after school hours, involved
the exercise of judgment. 21 And it was precisely the kind
of judgment the discretionary function exception is designed
to shield. 22
   LPS policies give individual school administrators broad
discretion as to what restrictions to place on the use of school
buildings and grounds and how to utilize staff to supervise
activities on school grounds. The record shows Sheridan
administrators, in the exercise of this discretion, decided to
establish and enforce a “no dogs” policy only during school
hours and decided not to supervise the school playground area
at all after students have been dismissed for the day. How to
utilize staff and budget to supervise school grounds and regu-
late activities thereon are administrative decisions grounded in
social, economic, and political policy, and they fall within the
discretionary function exception. 23
                       V. CONCLUSION
   Because LPS is immune from the Lamberts’ claims under
the discretionary function exception of the PSTCA, the district
court correctly granted summary judgment on that basis and
dismissed the action as against LPS with prejudice. The judg-
ment of the district court is affirmed.
                                                 Affirmed.
21
     See McGauley, supra note 8.
22
     Id.
23
     See Kimminau, supra note 18.
