    Nebraska Advance Sheets
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                  Larry Blaser and Terry McCaw and
                     Patricia McCaw, husband and
                     wife, appellants, v. County of
                    Madison, Nebraska, a political
                          subdivision, appellee.
                                    ___ N.W.2d ___

                         Filed June 6, 2014.    No. S-13-764.

 1.	 Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
     under the Political Subdivisions Tort Claims Act, an appellate court will not dis-
     turb the factual findings of the trial court unless they are clearly wrong.
 2.	 Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
     the discretion of the trial court, and an appellate court will not disturb the trial
     court’s decision absent an abuse of discretion.
 3.	 Administrative Law: Motor Vehicles. The placement of traffic control devices
     is a discretionary function, although once a decision to utilize a particular device
     has been made, the device is required to conform to the Manual on Uniform
     Traffic Control Devices.

   Appeal from the District Court for Madison County: Robert
B. Ensz, Judge. Affirmed.
  Todd B. Vetter, of Fitzgerald, Vetter & Temple, for
appellants.
      Vincent Valentino and Brandy Johnson for appellee.
  Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
   Stephan, J.
   In 2008, Larry Blaser and Terry McCaw sustained personal
injuries when Blaser drove a vehicle in which McCaw was a
passenger into a washed-out area on a vacated county road
in Madison County, Nebraska (the County). Blaser, McCaw,
and their wives sued Madison County under the Political
Subdivisions Tort Claims Act (PSTCA),1 alleging the County
was negligent. After a bench trial, the district court for Madison
County found the County had breached its duty to maintain the
vacated road and entered judgment against the County. The

 1	
      Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2007).
                        Nebraska Advance Sheets
	                      BLASER v. COUNTY OF MADISON	307
	                            Cite as 288 Neb. 306

County appealed, and on June 6, 2012, in case No. S-11-1048,
we dismissed the appeal, without opinion, because of a juris-
dictional defect. The defect was corrected (the dismissal of
Blaser’s wife’s claims), and the County filed a second appeal.
In the second appeal, we determined the district court erred in
finding the County had a duty to maintain the vacated road,
and we reversed the judgment and remanded the cause for a
new trial.2 Following remand, the parties stipulated that the
matter should be submitted to the district court on the record
made at the original trial. The district court then determined
that Madison County retained sovereign immunity pursuant to
§ 13-910(9) and entered judgment in favor of the County. After
a motion for new trial was overruled, this timely third appeal
was filed. We conclude the district court did not err in deter-
mining that the County retained its sovereign immunity and
therefore affirm its judgment.
                        BACKGROUND
                      Facts and P rocedural
                           Background
   The facts and procedural background are set forth in full in
our prior opinion.3 We restate the most relevant facts here.
   On November 9, 2008, Blaser was driving his 1996 Ford
Ranger pickup southbound on 545th Avenue, a vacated road in
Madison County, and McCaw was riding as a passenger. While
traveling on the vacated road, Blaser drove into a washout, or a
large hole in the middle of the road, approximately 12 feet wide
and 8 feet deep. As a result of the accident, the pickup truck
was damaged, Blaser sustained minor injuries, and McCaw
sustained severe injuries. Blaser, McCaw, and their wives ini-
tiated this action against the County seeking damages for the
injuries resulting from the accident.
   According to the trial record, 545th Avenue is a north-south
roadway between 845th Road and 846th Road and 846th Road
is the county line between Madison County and Pierce County,
Nebraska, with Madison County lying to the south. When the

 2	
      Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013).
 3	
      Id.
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308	288 NEBRASKA REPORTS



County vacated 545th Avenue in 2004, it qualified the vacation
and retained a right-of-way over the vacated road subject to
any easements of record.
   In April 2005, after the County had vacated the road, road
closed signs were placed at the north and south ends of the
vacated road. Blaser and McCaw testified that on November 9,
2008, the day of their accident, they did not observe any road
closed signs. The deputy who investigated the accident stated
that a road closed sign at the north end of the vacated road had
been unbolted and laid on the ground next to the upright post
and was not visible from the road on the day of the Blaser/
McCaw accident. Gary Drahota, a man who owned land and
lived in the area, stated that he did not see a road closed
sign at the north end of the vacated portion of the road at the
intersection of 545th Avenue and 846th Road on October 27,
2008. Another man, who owns land surrounding the vacated
road, testified that he recalled seeing a road closed sign at the
north end of the vacated road a few days before the Blaser/
McCaw accident.
   Several weeks prior to the Blaser/McCaw accident, another
accident occurred involving the same washout on the vacated
road. Between October 27 and October 30, 2008, Drahota noti-
fied law enforcement that he had been traveling on the vacated
road when he found an abandoned vehicle in the washout. On
October 30, a deputy sheriff for the County investigated this
report and found the abandoned vehicle in the washout. He
approached the abandoned vehicle from the south end of the
vacated road, traveling north.
   Sometime after the County was notified of the abandoned
vehicle and before the Blaser/McCaw accident, the County’s
highway superintendent was instructed to inspect the road
closed signs on the vacated road. He testified that while he
did inspect the south end of the vacated portion of 545th
Avenue, he did not actually inspect the north end of the
vacated portion of the road at the intersection of 545th Avenue
and 846th Road. Regarding the north portion of the vacated
road, the superintendent stated he positioned himself 2 miles
north of the county line and looked to the south. He testified
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	                    BLASER v. COUNTY OF MADISON	309
	                          Cite as 288 Neb. 306

that he could not see any signs from his vantage point of 2
miles away.
   In their operative complaint, the Blasers and McCaws
alleged that the County was negligent because it failed to
“correct the malfunction, destruction, or any unauthorized
removal of the Road Closed signed [sic] when it had actual
and constructive knowledge and notice of the malfunction,
destruction, and or [sic] removal of the sign.” In its answer,
the County denied many of the allegations of the complaint
but admitted that, as part of the investigation by the Madison
County sheriff’s office, the sheriff’s office located a road
closed sign that had been knocked over. The record shows
that the investigation occurred on November 9, 2008, the day
of the accident. The County affirmatively asserted that it was
immune from suit under various provisions of the PSTCA and
asserted the affirmative defenses of contributory negligence,
assumption of the risk, and alternative safe route. One particu-
lar defense under the PSTCA provides that a political subdivi-
sion retains sovereign immunity from “[a]ny claim arising out
of the malfunction, destruction, or unauthorized removal of
any traffic or road sign . . . 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.”4

                   Initial Determination by
                        District Court
   After a bench trial, the district court determined that the
County negligently breached a duty to maintain the vacated
road and that the breach was a proximate cause of the accident.
Although it noted that the evidence regarding the existence
and position of the road closed sign on the day of the accident
was in dispute, the court made no finding as to whether the
sign was up or down on the day of the accident. The court
ultimately entered a judgment for damages in favor of Blaser
and the McCaws.

 4	
      § 13-910(9).
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                           P rior Appeals
   We dismissed the County’s initial appeal because of a juris-
dictional defect.5 In the second appeal, we determined the
district court erred in finding the County had a duty to remedy
the condition of the vacated road, reasoning it had no duty
to maintain the road after vacating it. Instead, we concluded
the County had only the duty to do what a reasonable County
would do, having vacated a road but retaining a right-of-way.6
We stated that the scope of this duty was “less than the obli-
gation to fully maintain” the road as though it were a public
road, but was “more than no obligations, as with a completely
vacated road.”7 Citing the proposition that the “issues in a
case are framed by the pleadings,”8 we noted that the opera-
tive complaint alleged that the County breached its duty by
“‘failing to correct the malfunction, destruction, or any unau-
thorized removal of the Road Closed’”9 sign when the County
had actual or constructive knowledge and notice of the mal-
function, destruction, or unauthorized removal. We determined
that the “central issue in the case was whether the County met
its obligations relative to the warning sign it had chosen to
erect,”10 and we remanded the cause with directions
      to find whether the County had actual or constructive
      notice that its warning sign was down on the date of the
      accident and whether the County had reasonable time
      to correct the problem. These findings will determine
      whether the County retained sovereign immunity, as the
      County claims under § 13-910(9).11
   After the opinion was released, the County filed a motion
for rehearing asserting that our opinion was unclear as to

 5	
      See Blaser v. County of Madison, supra note 2.
 6	
      Id.
 7	
      Id. at 308, 826 N.W.2d at 568.
 8	
      Id. at 309, 826 N.W.2d at 568, citing Richards v. Meeske, 268 Neb. 901,
      689 N.W.2d 337 (2004).
 9	
      Id. at 309, 826 N.W.2d at 568.
10	
      Id. at 311, 826 N.W.2d at 569.
11	
      Id. (emphasis supplied).
                  Nebraska Advance Sheets
	                BLASER v. COUNTY OF MADISON	311
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the scope of the remand. Specifically, the County sought
clarification as to whether the remand was limited to a deter-
mination of the road closed sign issue or whether it was for
a new trial on all issues and defenses. On March 20, 2013,
we overruled the motion for rehearing with a minute entry
stating: “Cause reversed and remanded for a new trial on
all issues.”

                     P roceedings Following
                             R emand
   After issuance of our mandate and remand to the district
court, Blaser and the McCaws (appellants) moved for leave
to file a second amended complaint. Specifically, they sought
to amend their allegation of breach of duty to assert the
following:
      [The] County was negligent and breached its duty to
      [appellants] by failing to exercise the degree of care that
      would be exercised by a reasonable county under the
      circumstances, which negligence includes, but is not lim-
      ited to:
         A. Failing to prevent motorists from driving into the
      hole in the road when it knew that motorists continued to
      use the publicly retained right of way.
         B. It knew or should have known that any sign posted
      was not effective to prevent travel on right of way by
      motorists.
         C. Failing to properly sign the road as required by the
      Manual on Uniform Traffic Control Devices[.]
         D. Failing to inspect the signs when it knew or should
      have known that the signs were not effective.
         E. Failing to correct the malfunction, destruction, or
      any unauthorized removal of the Road Closed signed
      [sic] when it had actual and constructive knowledge and
      notice of the malfunction, destruction, and or removal of
      the sign, which sign would have notified the traveling
      public that the section of road was vacated and contained
      dangers thereon.
The district court denied leave to amend, reasoning the last
allegation was part of the original complaint and the first four
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allegations had “been addressed by the Supreme Court and
rejected as a duty greater than legally required.”
   The parties then stipulated that the case could be submit-
ted on the testimony, exhibits, and stipulations contained in
the bill of exceptions from the second appeal. After consid-
ering this record again, limiting itself to what it considered
the law of the case after the second appeal, the district court
found the County was entitled to sovereign immunity under
§ 13-910(9). In doing so, the court found that the road closed
sign was down on the day of the accident, it was down only
2 or 3 days prior to the accident, and the County had no
actual or constructive knowledge that it was down during this
time period. The district court refused to consider whether
the road closed sign complied with the Manual on Uniform
Traffic Control Devices (Manual), reasoning that the “pro-
priety of the sign” was “not an issue on remand.” It also did
not consider appellants’ argument that the road closed sign
was “malfunctioning” within the meaning of § 13-910(9),
because it was not “functioning properly” at the time of the
accident in that it was not preventing motorists from using the
vacated road.
   After the district court denied the motion for new trial,
appellants perfected this timely appeal.

                 ASSIGNMENTS OF ERROR
   Appellants assign, restated and consolidated, that the district
court erred in (1) limiting its analysis of the County’s entitle-
ment to sovereign immunity only to the issues of whether the
road closed sign was up or down and whether the County had
a reasonable time to remedy the situation if the sign was down,
instead of also determining whether the road closed sign was
functioning properly on the day of the accident and whether the
County had actual or constructive knowledge that it was not
functioning properly and a reasonable amount of time to rem-
edy the problem; (2) finding the propriety of the road closed
sign and its compliance with the Manual were not issues on
remand; and (3) failing to grant leave to amend the complaint
following our remand.
                        Nebraska Advance Sheets
	                      BLASER v. COUNTY OF MADISON	313
	                            Cite as 288 Neb. 306

                    STANDARD OF REVIEW
   [1] In actions brought under the PSTCA, an appellate court
will not disturb the factual findings of the trial court unless
they are clearly wrong.12
   [2] Permission to amend a pleading is addressed to the dis-
cretion of the trial court, and an appellate court will not disturb
the trial court’s decision absent an abuse of discretion.13

                           ANALYSIS
                      Sovereign Immunity
   This action was brought against the County pursuant to
the PSTCA, which waives a political subdivision’s sovereign
immunity under limited conditions. Certain claims are exempt
from the waiver of sovereign immunity and cannot be brought
against a political subdivision.14 These exempt claims are set
forth in § 13-910, which provides that the PSTCA shall not
apply to:
        (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;
        ....
        (9) Any claim arising out of the malfunction, destruc-
     tion, 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

12	
      Blaser v. County of Madision, supra note 2; Downey v. Western Comm.
      College Area, 282 Neb. 970, 808 N.W.2d 839 (2012).
13	
      InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012);
      Roos v. KFS BD, Inc., 280 Neb. 930, 799 N.W.2d 43 (2010).
14	
      See, § 13-910; Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d
      508 (2011); Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900
      (2010).
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      any political subdivision in placing or removing any traf-
      fic or road signs, signals, or warning devices when such
      placement or removal is the result of a discretionary act
      of the political subdivision.
The County alleged as an affirmative defense that appellants’
claims fell within these and other exemptions to the PSTCA’s
waiver of sovereign immunity.
   Although our prior opinion remanded the cause for a new
trial on all issues, we specifically directed the district court
to “make findings regarding the warning sign issue as these
facts relate to the County’s claim of sovereign immunity under
§ 13-910(9).”15 It is entirely reasonable that the district court
did so as a threshold matter before reaching the merits of the
claims, because if a political subdivision proves that a claim
comes within an exception pursuant to § 13-910, then the claim
is barred by sovereign immunity and the political subdivision
cannot be liable.16 After reviewing the evidence, the district
court found that the road closed sign which had been posted
at the north end of the vacated roadway had been removed
“within two to three days prior to the day of the accident or
on that day” and that the County “was not notified that the
sign was down during this time period.” The court further con-
cluded that because the County had no actual or constructive
notice that the sign was down, it “had no reasonable time to
remedy the same.” Appellants do not specifically assign that
these factual findings were clearly erroneous, and we conclude
they were not.
   But appellants contend that the district court’s analysis did
not go far enough. They argue that the district court “failed to
address whether the sign was functioning properly.”17 In this
regard, they rely on a passage in our prior opinion stating that
the district court should determine “whether the County had

15	
      Blaser v. County of Madision, supra note 2, 285 Neb. at 301, 826 N.W.2d
      at 563.
16	
      See Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
17	
      Brief for appellants at 27.
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	                      BLASER v. COUNTY OF MADISON	315
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actual or constructive knowledge that its road closed sign at the
north end of the vacated road was not functioning properly on
the day of the accident.”18 Although we acknowledge our use
of the phrase “functioning properly” may have been somewhat
imprecise, clearly, a warning sign which has been removed
without authorization of the political subdivision which erected
it is not “functioning properly.”
    But appellants contend it means more. Relying on our
use of the phrase “functioning properly,” they assert that the
district court erred in its interpretation of the word “malfunc-
tion” as it is used in § 13-910(9). They argue that there was
a “malfunction” of the road closed sign, because even when
it was in place, it was “not functioning properly” in that it
did not prevent motorists from entering the vacated roadway.
And they contend that the County had actual knowledge of
this “malfunction” in ample time to take remedial measures
which would have prevented the accident, thereby making
§ 13-910(9) inapplicable.
    [3] But this argument necessarily implicates the § 13-910(2)
discretionary function exception to the waiver of sovereign
immunity which the County pled as an affirmative defense.
Some background is helpful to understand why this is so.
Neb. Rev. Stat. § 60-6,121 (Reissue 2010) provides: “Local
authorities in their respective jurisdictions shall place and
maintain such traffic control devices upon highways under
their jurisdictions as they deem necessary to indicate and to
carry out the provisions of the Nebraska Rules of the Road or
to regulate, warn, or guide traffic.” Section 60-6,121 further
provides that “[a]ll such traffic control devices erected . . .
shall conform with the [M]anual.” We have held that this stat-
ute is a legislative grant of discretion to political subdivisions
with respect to the installation of traffic control devices.19

18	
      Blaser v. County of Madison, supra note 2, 285 Neb. at 292, 826 N.W.2d
      at 558.
19	
      See, Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
      (2012); McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638
      (2002). See, also, Blaser v. County of Madison, supra note 2.
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Thus, the placement of traffic control devices is a discretion-
ary function, although once a decision to utilize a particular
device has been made, the device is required to conform to
the Manual.20
   We decline appellants’ invitation to equate “malfunction”
as used in § 13-910(9) with a lack of efficacy, because to do
so would negate the § 13-910(2) discretionary function excep-
tion. The County had complete discretion in determining what
type of traffic control device to use, or whether to use any
traffic control device at all. Although any device it chose to
utilize had to comply with the specifications of the Manual for
that device,21 the Manual does not establish legal requirements
for the use of any specific device, but, rather, contemplates
the exercise of engineering judgment in determining whether
to use a particular traffic control device at a particular loca-
tion.22 Thus, even if the County had come to the conclusion
that the sign which it chose to use was not effective in keep-
ing motorists off the vacated road, it had complete discretion
to decide whether to keep the sign or to utilize some alterna-
tive means, such as a different type of sign or a barricade. The
fact that the sign may not have been effective when it was in
place cannot constitute a “malfunction” within the meaning
of § 13-910(9).
   Appellants also contend that the road closed sign which the
County erected at the north end of the vacated road did not
conform to the Manual. There is evidence that the road closed
sign which Madison County erected was yellow and diamond
shaped, whereas the Manual indicates a rectangular black and
white sign was appropriate. But we need not determine in
this case whether the sign erected complied with the Manual,
because any deviation from the specifications of the Manual is
immaterial. The district court found the sign had been removed
without the knowledge or authorization of the County 2 or 3

20	
      Shipley v. Department of Roads, supra note 19; Tadros v. City of Omaha,
      269 Neb. 528, 694 N.W.2d 180 (2005).
21	
      Id.
22	
      Shipley v. Department of Roads, supra note 19.
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	                      BLASER v. COUNTY OF MADISON	317
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days prior to the accident. Because the sign was not up on the
date of the accident, the fact that it may have deviated from the
specifications of the Manual with respect to color and shape
could not, as a matter of law, have been a proximate cause of
the accident.
   We conclude that the district court complied with our man-
date by making a threshold determination of whether the
County retained sovereign immunity with respect to appellants’
claims. Its resolution of that issue in favor of the County was
based upon factual findings which are not clearly erroneous,
and the court made no error of law.
                        Denial of Leave
                            to A mend
   The district court did not abuse its discretion in denying
appellants’ motion for leave to amend their complaint. Their
proposed new allegations that the County failed to prevent
motorists from entering the road or take action after learning
that motorists were using the road despite the presence of a
road closed sign implicate discretionary functions, for the rea-
sons explained above. Their allegation that the County negli-
gently failed to inspect the sign is subsumed within the district
court’s finding that the sign was removed within 2 to 3 days
prior to the accident without the County’s actual or construc-
tive knowledge. Finally, the proposed allegation that the sign
did not comply with the specifications of the Manual is entirely
irrelevant given the court’s finding that the sign was not in
place at the time of the accident.
                         CONCLUSION
   As we noted in Shipley v. Department of Roads23 and
McCormick v. City of Norfolk,24 because immunity necessarily
implies that a “wrong” has occurred, some tort claims against
political subdivisions will inevitably go unremedied. That is
the circumstance here. Clearly, the County could have exer-
cised its discretion to take additional precautionary measures

23	
      Id.
24	
      McCormick v. City of Norfolk, supra note 19.
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which may have prevented this accident. But because it retains
sovereign immunity with respect to such discretionary func-
tions, it cannot be held legally liable for its inaction. For these
reasons, we affirm the judgment of the district court.
                                                       Affirmed.
   Heavican, C.J., not participating.
