Kimminau v. City of Hastings ( 2015 )

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KIMMINAU v. CITY OF HASTINGS
Cite as 291 Neb. 133K aelynn K imminau and Wayne K imminau,
wife and husband, appellants, v. City
of H astings, a Nebraska political
subdivision, et al., appellees.
___ N.W.2d ___
Filed June 19, 2015. No. S-14-413.
1. Judgments: Statutes: Appeal and Error. Questions of law and statu-
tory interpretation require an appellate court to reach a conclusion inde-
pendent of the decision made by the court below.
2. Political Subdivisions Tort Claims Act. Whether the allegations made
by a plaintiff present a claim that is precluded by exemptions set forth
in the Political Subdivisions Tort Claims Act is a question of law.
3. Political Subdivisions Tort Claims Act: Appeal and Error. An
appellate court has an obligation to reach its conclusion on whether a
claim is precluded by exemptions set forth in the Political Subdivisions
Tort Claims Act independent from the conclusion reached by the
trial court.
4. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose that there is no genuine
issue as to any material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to judgment
as a matter of law.
5. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in a light most favor-
able to the party against whom the judgment is granted and gives
such party the benefit of all reasonable inferences deducible from
the evidence.
6. ____: ____. When cross-motions for summary judgment have been
ruled upon by the district court, the appellate court may determine the
controversy that is the subject of those motions or may make an order
specifying the facts that appear without substantial controversy and
direct such further proceedings as it deems just.
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Cite as 291 Neb. 1337. 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.
8. Political Subdivisions Tort Claims Act: Tort Claims Act. Where
language in the Political Subdivisions Tort Claims Act is similar to
language in the State Tort Claims Act, cases construing one statute are
applicable to construction of the other.
9. ____: ____. The purpose of the discretionary function exception of the
Political Subdivisions Tort Claims Act or the State 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.
10. ____: ____. The discretionary function exception of the Political
Subdivisions Tort Claims Act or the State Tort Claims Act extends only
to basic policy decisions made in governmental activity, and not to
ministerial activities implementing such policy decisions. The excep-
tion does not extend to the exercise of discretionary acts at an opera-
tional level.
11. ____: ____. A court engages in a two-step analysis to determine whether
the discretionary function exception of the Political Subdivisions Tort
Claims Act or the State Tort Claims Act applies. First, the court
must consider whether the action is a matter of choice for the acting
employee. 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.
12. Negligence: Damages: Proximate Cause. In order to prevail in a neg-
ligence action, a plaintiff must establish the defendant’s duty to protect
the plaintiff from injury, a failure to discharge that duty, and damages
proximately caused.
13. Negligence. The threshold inquiry in any negligence action is whether
the defendant owed the plaintiff a duty.
14. Negligence: Words and Phrases. A “duty” is an obligation, to which
the law gives recognition and effect, to conform to a particular stan-
dard of conduct toward another. If there is no duty owed, there can be
no negligence.
15. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particu-
lar situation.
16. Judgments: Appeal and Error. When reviewing a question of law, an
appellate court resolves the question independently of the conclusion
reached by the trial court.
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KIMMINAU v. CITY OF HASTINGS
Cite as 291 Neb. 13317. Negligence: Liability: Public Policy. An actor ordinarily has a duty to
exercise reasonable care when the actor’s conduct creates a risk of phys-
ical harm. But, in exceptional cases, when an articulated countervailing
principle or policy warrants denying or limiting liability in a particular
class of cases, a court may decide that a defendant has no duty or that
the ordinary duty of reasonable care requires modification.
18. Judgments: Negligence: Liability: Public Policy. A no-duty determi-
nation is grounded in public policy and based upon legislative facts, not
adjudicative facts arising out of the particular circumstances of the case.
And such ruling should be explained and justified based on articulated
policies or principles that justify exempting these actors from liability or
modifying the ordinary duty of reasonable care.
Appeal from the District Court for Adams County: Terri
S. H arder, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Douglas G. Pauley and Scott D. Pauley, of Conway, Pauley
& Johnson, P.C., and Jefferson Downing, of Keating, O’Gara,
Nedved & Peter, P.C., L.L.O., for appellants.
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellees R Lazy K Trucking,
Inc., and Wayne Todd.
Gail S. Perry and Robert B. Seybert, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellee City of Hastings.
Vincent Valentino and Brandy Johnson for appellee County
of Adams.
Stephen G. Olson, Robert S. Keith, and Kristina J. Kamler,
of Engles, Ketcham, Olson & Keith, P.C., for appellee Hastings
Rural Fire District.
Heavican, C.J., Wright, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Stephan, J.
Kaelynn Kimminau and her husband, Wayne Kimminau,
brought this action seeking damages for personal injuries
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KIMMINAU v. CITY OF HASTINGS
Cite as 291 Neb. 133Kaelynn suffered as the result of a motor vehicle accident
in rural Adams County, Nebraska, in November 2009. They
alleged that Kaelynn lost control of her vehicle due to corn
mash which had spilled from a truck onto the highway the
previous day. The action was brought against Wayne Todd,
the driver of the truck, and R Lazy K Trucking, Inc. (R Lazy
K), Todd’s employer. Also named as defendants, pursuant to
the Political Subdivisions Tort Claims Act (PSTCA),1 were
the City of Hastings, Hastings Rural Fire District (Hastings
Rural), and the County of Adams. The district court for
Adams County entered summary judgment in favor of all
named defendants.
The Kimminaus perfected this timely appeal, and we
granted a petition to bypass. We reverse the judgment of the
district court in favor of the political subdivisions and affirm
the judgment in favor of Todd and R Lazy K.
BACKGROUND
Undisputed Facts
The following facts are uncontroverted: The City of Hastings,
Adams County, and Hastings Rural are political subdivisions as
defined by Nebraska law. Pursuant to an emergency service
agreement, the Hastings Fire Department (Hastings Fire) and
Hastings Rural keep fire equipment in facilities owned by
Hastings Fire. Hastings Fire will also respond to emergency
calls with Hastings Rural within the latter’s response district,
which generally includes those areas of Adams County not
within the Hastings city limits. Hastings Rural is comprised of
an all-volunteer force.
On November 15, 2009, Nebraska State Trooper Monte Dart
was completing a traffic stop on South Showboat Boulevard
in rural Adams County when he observed wet corn mash spill-
ing onto the roadway from a truck owned by R Lazy K and
operated by Todd. The corn mash, which has the consistency
1
Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012).
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Cite as 291 Neb. 133of tapioca pudding and is sometimes referred to as “wet cake”
or “wet distiller’s grain,” is a byproduct of ethanol production
that is fed to cattle.
Dart closed the southbound lane of the roadway and
requested assistance. South Showboat Boulevard is a two-lane
paved roadway with solid white lines delineating the edge of
each lane. It has an unpaved shoulder, approximately 5 to 8
feet wide, leading to a ditch on either side of the roadway.
Hastings Fire and Hastings Rural responded to the scene
of the spill at approximately 12:20 p.m. They moved the
spilled corn mash from the traveled portion of the roadway
onto the unpaved shoulder and into the ditch, utilizing shov-
els, brooms, and firehoses. Neither Todd nor R Lazy K were
requested to assist with the cleanup of the spill, and neither
did so.
These events were visually and audibly recorded by a front
dash-mounted camera in Dart’s patrol vehicle. On the record-
ing, corn mash is visible on the shoulder of the roadway just
past the white line at the edge of the southbound lane of the
roadway after the cleanup was completed. When the cleanup
was concluded, Dart issued a traffic citation to Todd, inspected
the roadway, and then reopened it to vehicular traffic, because
he thought it was safe to do so. Later that evening, the Adams
County highway superintendent and a volunteer captain with
Hastings Rural separately drove past the site of the corn mash
spill and observed that the paved road surface was clear of any
corn mash debris.
On the following day, November 16, 2009, at approxi-
mately 1:20 p.m., Kaelynn was driving southbound on South
Showboat Boulevard. At the site of the corn mash spill, she
lost control of her vehicle. The vehicle swerved on the road-
way and eventually came to rest against a utility pole in the
ditch. A photograph of the accident scene shows corn mash
on the surface of the southbound lane of South Showboat
Boulevard, north of where Kaelynn’s vehicle came to rest.
Kaelynn was not aware of corn mash on the roadway until her
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KIMMINAU v. CITY OF HASTINGS
Cite as 291 Neb. 133vehicle came in contact with it. A motorist who was traveling
behind Kaelynn prior to the accident saw her vehicle drop a
tire off the roadway onto the unpaved shoulder and encounter
corn mash immediately prior to its swerving.
At approximately 1:26 p.m. on November 16, 2009, an
unidentified truckdriver contacted the joint dispatch center
in Hastings to report Kaelynn’s accident. The joint dispatch
center serves as the exclusive dispatch center for the Hastings
Police Department, the Adams County Sheriff’s Department,
and all of the fire departments in Adams County. From the
completion of the cleanup on November 15 until the report
of Kaelynn’s accident at 1:26 p.m. on November 16, the
dispatch center received no calls or messages regarding any
corn mash spills on South Showboat Boulevard. Likewise,
Hastings Rural was not notified of any other incidences of
corn mash on the paved portion of the roadway on South
Showboat Boulevard following the cleanup on November 15
until it was informed of Kaelynn’s accident at 1:29 p.m. on
November 16.
Procedural Background
In their operative amended complaint, the Kimminaus
alleged that the three political subdivisions had actual or con-
structive notice of the corn mash spill and were negligent in
(1) failing to take or to direct others to take corrective action
and (2) failing to warn motorists of the danger posed by the
spill. The Kimminaus further alleged that Todd was negligent
in causing the spill, failing to take reasonable steps to remove
the corn mash from the roadway, and failing to warn motorists
of the danger. They alleged that R Lazy K was negligent in hir-
ing and failing to adequately supervise Todd and in failing to
take reasonable steps to remove the spilled corn mash from the
roadway and warn motorists of the danger.
The three political subdivisions asserted various affirma-
tive defenses, including sovereign immunity under § 13-910.
Todd and R Lazy K denied that they were negligent and
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Cite as 291 Neb. 133alleged that Kaelynn’s negligence was the proximate cause of
the accident.
The political subdivisions filed motions for summary judg-
ment, which were sustained by the district court. The court
determined as a matter of law that the political subdivisions
were immune from suit under § 13-910(12), reasoning that
“the migration of the corn mash onto the roadway (after being
cleaned up) was a ‘spot or localized defect’ as described in
§ 13-910” of which the political subdivisions did not have
actual or constructive notice.
Subsequently, the district court entered a separate order
denying the Kimminaus’ motion for summary judgment with
respect to Todd and R Lazy K and sustaining the cross-motions
for summary judgment filed by those parties. The court rea-
soned that the actions of the firefighters and the state trooper
in supervising, conducting the cleanup of the corn mash spill,
and declaring the road safe for travel cut off any duty on the
part of Todd and R Lazy K to remediate the spill. The court
concluded that it was “unwilling to create such a duty in light
of the potential far-reaching applications that defy logic and
common sense.”
ASSIGNMENTS OF ERROR
The Kimminaus assign, restated, that the district court erred
when it (1) found the political subdivisions were immune
from liability under § 13-910(12); (2) granted the political
subdivisions’ motions for summary judgment, because a ques-
tion of material fact existed regarding whether they exercised
reasonable care in remediating the spill; (3) granted sum-
mary judgment, because an issue of material fact exists as to
whether Kaelynn first encountered the wet corn mash on the
paved roadway or the shoulder; (4) found any duty owed by
Todd and R Lazy K was extinguished as a matter of law when
Dart deemed the highway reasonably safe for travel after the
cleanup, because this is a question of fact; and (5) erred in not
granting the Kimminaus’ motion for summary judgment on the
issue of the liability of Todd and R Lazy K.
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Cite as 291 Neb. 133STANDARD OF REVIEW
[1] Questions of law and statutory interpretation require an
appellate court to reach a conclusion independent of the deci-
sion made by the court below.2
[2,3] Whether the allegations made by a plaintiff present a
claim that is precluded by exemptions set forth in the PSTCA
is a question of law.3 An appellate court has an obligation to
reach its conclusion on whether a claim is precluded by exemp-
tions set forth in the PSTCA independent from the conclusion
reached by the trial court.4
[4,5] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. In reviewing a sum-
mary judgment, an appellate court views the evidence in a
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence.5
[6] When cross-motions for summary judgment have been
ruled upon by the district court, the appellate court may deter-
mine the controversy that is the subject of those motions or
may make an order specifying the facts that appear without
substantial controversy and direct such further proceedings as
it deems just.6
2
Frederick v. City of Falls City, 289 Neb. 864, 857 N.W.2d 569 (2015);
Davis v. Davis, 275 Neb. 944, 750 N.W.2d 696 (2008).
3
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015). See, also,
Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014).
4
Id.5
City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008);
Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).
6
Loves v. World Ins. Co., 276 Neb. 936, 758 N.W.2d 640 (2008); Builders
Supply Co. v. Czerwinski, 275 Neb. 622, 748 N.W.2d 645 (2008).
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KIMMINAU v. CITY OF HASTINGS
Cite as 291 Neb. 133ANALYSIS
Political Subdivisions
[7] The sole issue on appeal with respect to the three politi-
cal subdivisions is whether they are immune from suit under
the doctrine of sovereign immunity. The PSTCA provides
limited waivers of sovereign immunity which are subject to
statutory exceptions.7 Section 13-910(12), one of those excep-
tions, provides in pertinent part that the PSTCA shall not apply
to the following:
Any claim arising out of the alleged insufficiency or
want of repair of any highway as defined in such sec-
tion, 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 local-
ized 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 . . . .
We have not previously construed the phrase “spot or local-
ized defect” as it is used in this statute. Generally, a “defect”
is defined as “[a]n imperfection or shortcoming, esp. in a
part that is essential to the operation or safety of a product.”8
“Spot” is defined as “a small area visibly different . . . from the
surrounding area.”9 “Localize” is defined as “to accumulate in
or be restricted to a specific or limited area.”10
7
Stick v. City of Omaha, supra note 3; Hall v. County of Lancaster, supra
note 3.
8
Black’s Law Dictionary 507 (10th ed. 2014).
9
Merriam-Webster’s Collegiate Dictionary 1134 (10th ed. 2001).
10
Id. at 682.
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Cite as 291 Neb. 133[8] In Woollen v. State,11 we determined that ruts of three-
fourths of an inch or greater depth in an asphalt surfaced road
constituted a “spot or localized defect” within the meaning of a
corresponding provision of the State Tort Claims Act,12 because
the ruts constituted an “unacceptable safety risk.”13 And, we
have held that where language in the PSTCA is similar to lan-
guage in the State Tort Claims Act, cases construing one statute
are applicable to construction of the other.14
The parties generally agree that the spilled corn mash
on South Showboat Boulevard constituted a spot or local-
ized defect. But the political subdivisions argue that there
were actually two separate events: the first on November 15,
2009, when the corn mash spilled onto the roadway and was
removed from the paved surface by Hastings Fire and Hastings
Rural, and the second, when the corn mash “migrated” from
the shoulder of the roadway back onto the paved surface.
They contend that because they had no actual or construc-
tive notice of the second event, their sovereign immunity
under § 13-910(12) was not waived. On the other hand, the
Kimminaus contend that there was a single spot or localized
defect created by the corn mash spill on November 15, as to
which all three political subdivisions had actual notice, result-
ing in a waiver of their sovereign immunity. Further, they con-
tend that the presence of the corn mash on the roadway at the
time of the accident was not a new “defect,” but, rather, was
the result of a negligent response by the political subdivisions
to the original spill.
In resolving this issue, we assume that Kaelynn’s acci-
dent occurred when she lost control of her vehicle due to
11
Woollen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999), abrogated on
other grounds, A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784
N.W.2d 907 (2010).
12
See Neb. Rev. Stat. § 81-8,219(12) (Reissue 2014).
13
Woollen v. State, supra note 11, 256 Neb. at 878, 593 N.W.2d at 739.
14
See, e.g., Hall v. County of Lancaster, supra note 3; Shipley v. Department
of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).
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Cite as 291 Neb. 133the presence of corn mash on the southbound lane of South
Showboat Boulevard. We also note the uncontroverted evi-
dence that the spilled corn mash was moved from the paved
surface of the roadway to the adjacent shoulder and ditch fol-
lowing the spill on November 15, 2009, but was present on
the southbound lane on the following day. The record does not
disclose how or precisely when the corn mash “migrated” from
the shoulder to the paved roadway surface.
We conclude that there was only one “spot or localized
defect” on South Showboat Boulevard: the corn mash which
spilled from the truck driven by Todd on November 15, 2009.
There is no reasonable basis to infer that the corn mash on
the roadway on the following day originated from any other
source. And the fact that the corn mash was removed from the
traveled portion of the highway following the spill cannot be
viewed as an elimination of the defect, because of the uncon-
troverted fact that corn mash remained on the shoulder of the
road following the initial cleanup. Under Nebraska statutes
pertaining generally to highways, “[s]houlder means that part
of the highway contiguous to the roadway and designed for
the accommodation of stopped vehicles, for emergency use,
and for lateral support of the base and surface courses of the
roadway.”15 Our cases recognize that a political subdivision’s
responsibility to maintain a highway in a reasonably safe con-
dition for travel is not limited to the traveled portions of the
highway, but may extend to dangerous conditions existing on
a shoulder or other adjacent structures.16 Because corn mash
remained on the shoulder of the road after the initial cleanup,
its subsequent “migration” onto the southbound lane was not
a new and distinct defect, but, rather, a sequela of the original
spill which constituted a single defect.
15
Neb. Rev. Stat. § 39-101(12) (Reissue 2008) (emphasis supplied).
16
See, e.g., Richardson & Gillispie v. State, 200 Neb. 225, 263 N.W.2d 442(1978), modified on denial of rehearing 200 Neb. 781, 265 N.W.2d 457;
King v. Douglas County, 114 Neb. 477, 208 N.W. 120 (1926).
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Cite as 291 Neb. 133Section § 13-910(12) immunizes political subdivisions from
liability claims relating to spot or localized defects in high-
ways, bridges, or other public thoroughfares unless and until
they have notice of the defect and a reasonable time to repair
it. When the requisite notice exists, sovereign immunity is
waived. That occurred here when Hastings Fire and Hastings
Rural responded to the spill on November 15, 2009, and the
Adams County highway superintendent was informed of it
later that same day. We do not read § 13-910(12) as provid-
ing immunity to a political subdivision with respect to a claim
alleging that it took inadequate measures to repair a spot or
localized defect of which it had notice.
[9,10] We are also not persuaded by Adams County’s argu-
ment that § 13-910(2) provides an alternative source of immu-
nity. Section 13-910(2) provides that the PTSCA 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.” 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.17 The
discretionary function exception extends only to basic policy
decisions made in governmental activity, and not to ministe-
rial activities implementing such policy decisions. The excep-
tion does not extend to the exercise of discretionary acts at an
operational level.18 Examples of discretionary functions include
the initiation of programs and activities, establishment of plans
and schedules, and judgmental decisions within a broad regula-
tory framework lacking specific standards.19
17
Shipley v. Department of Roads, supra note 14; Doe v. Omaha Pub. Sch.
Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).
18
Id.19
Doe v. Omaha Pub. Sch. Dist., supra note 17; Norman v. Ogallala Pub.
Sch. Dist., 259 Neb. 184, 609 N.W.2d 338 (2000).
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Cite as 291 Neb. 133[11] A court engages in a two-step analysis to determine
whether the discretionary function exception of the PSTCA
applies.20 First, the court must consider whether the action
is a matter of choice for the acting employee.21 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.22 We have held that the placement of pavement mark-
ings23 and traffic signs24 is a discretionary function where there
is no specific statutory or other legal requirement governing
such placement.
Maintenance of roads and highways is not a matter of
choice. Neb. Rev. Stat. § 39-2003 (Reissue 2008) provides that
“[a]ll county roads . . . shall be maintained at the expense of
the county.” Maintenance is defined as
the act, operation, or continuous process of repair, recon-
struction, or preservation of the whole or any part of any
highway, including surface, shoulders, roadsides, traffic
control devices, structures, waterways, and drainage facil-
ities, for the purpose of keeping it at or near or improving
upon its original standard of usefulness and safety.25
In Maresh v. State,26 we held that discretionary function immu-
nity under the State Tort Claims Act did not apply to a claim
that the State was negligent in failing to warn of a dropoff at
the edge of a state highway. We reasoned in part that failure
to warn of a dangerous condition was “akin to maintenance,
20
Shipley v. Department of Roads, supra note 14; Doe v. Omaha Pub. Sch.
Dist., supra note 17.
21
Id.
22
Id.
23
Blaser v. County of Madison, 288 Neb. 306, 847 N.W.2d 293 (2014).
24
Shipley v. Department of Roads, supra note 14.
25
§ 39-101(6).
26
Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992) (superseded by
statute on other grounds as stated in Walton v. Patil, 279 Neb. 974, 783
N.W.2d 438 (2010)).
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Cite as 291 Neb. 133where decisions are made at the operational level without
policy implications,” and therefore was not a discretion-
ary function.27
Similarly, we conclude here that actions taken by a county
in response to a reported spot or localized defect on a road-
way are not policy decisions, but, rather, are ministerial acts
at the operational level pursuant to the county’s statutory duty
to maintain its roads. A contrary conclusion would negate the
provision of § 13-910(12) that sovereign immunity for a claim
due to a spot or localized defect is waived if the political sub-
division has notice of the defect within a reasonable time to
allow repair.
In summary, we conclude that the corn mash spill on
November 15, 2009, was a singular spot or localized defect
on South Showboat Boulevard which was still in existence at
the time of Kaelynn’s accident on the following day. All three
political subdivisions had actual notice of the defect within a
sufficient time to allow repair, and their sovereign immunity
was therefore waived pursuant to § 13-910(12). We conclude
the district court erred in granting summary judgment to the
political subdivisions on the basis of sovereign immunity. We
emphasize that this disposition focuses solely on the issue of
sovereign immunity. We do not comment on the merits of the
Kimminaus’ claims against the political subdivisions, includ-
ing questions with respect to duty, as those issues have not yet
been addressed by the district court.
Todd and R Lazy K
The Kimminaus contend that the district court erred in con-
cluding that any duty that Todd and R Lazy K had to remedi-
ate the corn mash spill was cut off by the actions of Hastings
Fire and Hastings Rural in supervising and conducting the
cleanup on November 15, 2009, and by the determination of
Dart that the road was safe for travel after that cleanup was
27
Id. at 518, 489 N.W.2d at 314.
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Cite as 291 Neb. 133concluded. They rely principally on Simonsen v. Thorin28 and
Brown v. Nebraska P.P. Dist.,29 in which this court addressed
the duty owed by one who causes an obstruction to be placed
on a public roadway. In Simonsen, we held that a truckdriver
who, without negligence, hit and knocked a trolley pole into a
street had a “positive, continuing duty to the public traveling
the street to warn of [the] danger.”30 In Brown, we held that a
public utility whose employees caused smoke to drift across
a public road and allegedly caused a motor vehicle accident
could bear liability to an injured motorist on the theory that it
had placed a dangerous obstruction on the highway and failed
to use ordinary care to prevent injury. But neither of these
cases involved the circumstances presented here, where a pub-
lic authority took action to remove the obstruction and then
declared the road safe for travel.
[12-16] In order to prevail in a negligence action, a plain-
tiff must establish the defendant’s duty to protect the plaintiff
from injury, a failure to discharge that duty, and damages
proximately caused.31 Thus, the threshold inquiry in any neg-
ligence action is whether the defendant owed the plaintiff
a duty.32 A “duty” is an obligation, to which the law gives
recognition and effect, to conform to a particular standard of
conduct toward another.33 If there is no duty owed, there can
be no negligence.34 The question whether a legal duty exists
for actionable negligence is a question of law dependent on
the facts in a particular situation.35 When reviewing a question
28
Simonsen v. Thorin, 120 Neb. 684, 234 N.W. 628 (1931).
29
Brown v. Nebraska P.P. Dist., 209 Neb. 61, 306 N.W.2d 167 (1981).
30
Simonsen v. Thorin, supra note 28, 120 Neb. at 687, 234 N.W. at 629.
31
Durre v. Wilkinson Development, 285 Neb. 880, 830 N.W.2d 72 (2013);
Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012).
32
Id.33
Id.34
Id.35
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Cite as 291 Neb. 133of law, an appellate court resolves the question independently
of the conclusion reached by the trial court.36
[17,18] Under § 7 of the Restatement (Third) of Torts37
which we adopted in A.W. v. Lancaster Cty. Sch. Dist. 0001,38
an actor ordinarily has a duty to exercise reasonable care when
the actor’s conduct creates a risk of physical harm.39 But, in
exceptional cases, when an articulated countervailing principle
or policy warrants denying or limiting liability in a particular
class of cases, a court may decide that a defendant has no
duty or that the ordinary duty of reasonable care requires
modification.40 A no-duty determination, then, is grounded in
public policy and based upon legislative facts, not adjudicative
facts arising out of the particular circumstances of the case.41
And such ruling should be explained and justified based on
articulated policies or principles that justify exempting these
actors from liability or modifying the ordinary duty of reason-
able care.42
Here, the district court essentially determined that it would
be poor public policy to recognize a duty on the part of a
motorist who creates an obstruction on a roadway to take fur-
ther action with respect to the obstruction after public authori-
ties have removed it to their satisfaction and declared the
roadway safe for vehicular travel. We agree. Generally, public
authorities are in a better position than an average motorist to
determine when an obstruction has been sufficiently removed
from a roadway to make it safe for travel, particularly when
such authorities take control of the scene and actively engage
36
Id.
37
1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 7 (2010).
38
A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 11.
39
Id., citing 1 Restatement, supra note 37, § 7(a).
40
Id., citing 1 Restatement, supra note 37, § 7(b).
41
Id., citing 1 Restatement, supra note 37, § 7, comment b.
42
Id., citing 1 Restatement, supra note 37, § 7, comment j.
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Cite as 291 Neb. 133in removing the obstruction. It is not reasonable to expect a
motorist in that circumstance to second-guess the judgment
of the public authorities regarding the efficacy of their actions
and the safety of the roadway. The district court correctly
determined that the actions of the firefighters who responded
to the spill and Dart, the state trooper who opened the road
for traffic, cut off any duty that Todd and R Lazy K had to
remediate the spill or warn of the hazard it posed to other
motorists. Accordingly, the district court did not err in denying
the Kimminaus’ motion for summary judgment with respect to
their claims against Todd and R Lazy K or in granting those
parties’ cross-motion for summary judgment.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court with respect to Todd and R Lazy K. But we
reverse the judgment of the district court in favor of the City of
Hastings, Adams County, and Hastings Rural, and remand the
cause to the district court for further proceedings with respect
to those parties.
A ffirmed in part, and in part reversed and
remanded for further proceedings.
Connolly, J., not participating.