Williams v. City of Lincoln , 27 Neb. Ct. App. 414 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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WILLIAMS v. CITY OF LINCOLN
Cite as 27 Neb. Ct. App. 414
K athy Girard Williams, Ph.D., and Michael
Williams, appellants, v. City of Lincoln,
Nebraska, appellee.
___ N.W.2d ___
Filed July 23, 2019. No. A-18-680.
1. Judges: Recusal. A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be
questioned.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct,
a judge must recuse himself or herself from a case if the judge’s impar-
tiality might reasonably be questioned.
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8. ____: ____. Under the Nebraska Revised Code of Judicial Conduct,
such instances in which the judge’s impartiality might reasonably be
questioned specifically include where the judge has a personal bias or
prejudice concerning a party or a party’s lawyer.
9. Judges: Recusal: Presumptions. A defendant seeking to disqualify a
judge on the basis of bias or prejudice bears the heavy burden of over-
coming the presumption of judicial impartiality.
10. Judges: Recusal: Waiver. A party is said to have waived his or her right
to obtain a judge’s disqualification when the alleged basis for the dis-
qualification has been known to the party for some time, but the objec-
tion is raised well after the judge has participated in the proceedings.
11. Political Subdivisions Tort Claims Act: Waiver: Immunity. The
Political Subdivisions Tort Claims Act reflects a limited waiver of gov-
ernmental immunity and prescribes the procedure for maintenance of a
suit against a political subdivision.
12. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort
Claims Act is the exclusive means by which a tort claim may be main-
tained against a political subdivision or its employees.
13. Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
tion of sovereign immunity of the State or its subdivisions are strictly
construed in favor of the sovereign and against the waiver.
14. 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.
15. Political Subdivisions Tort Claims Act. A court engages in a two-
step analysis to determine whether the discretionary function exception
of the Political Subdivisions Tort Claims Act applies. First, the 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.
16. ____. 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.
17. ____. 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.
18. Political Subdivisions Tort Claims Act: Negligence. A nondiscretion-
ary duty to warn or take other protective measures exists when (1) a
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WILLIAMS v. CITY OF LINCOLN
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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 appar-
ent to persons who are likely to be injured by the dangerous condition
or hazard.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Jerry W. Katskee and Thomas C. Dorwart, of Govier,
Katskee, Suing & Maxell, P.C., L.L.O., for appellants.
Jeffery R. Kirkpatrick, Lincoln City Attorney, Elizabeth D.
Elliott, and Margaret M. Blatchford for appellee.
R iedmann, A rterburn, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Kathy Girard Williams and Michael Williams appeal
the order of the district court for Lancaster County which
entered summary judgment in favor of the City of Lincoln,
Nebraska (the City), based on the court’s determination that the
Williamses’ claims against the City were barred by sovereign
immunity. We affirm.
BACKGROUND
On September 13, 2015, the Williamses were riding their
bicycles on a sidewalk owned by the City. Shortly past an
intersection, a row of pear trees lined the median between the
sidewalk and the street. Michael was riding in front of Kathy,
and the pair rode past the first three trees without incident.
The branches of the fourth tree, however, extended over the
sidewalk. Michael was approximately 20 to 30 feet away when
he noticed the overgrown tree. Michael yelled back to warn
Kathy of the tree up ahead and successfully veered to the side
and around the tree, but Kathy, who was riding approximately
5 to 10 feet behind Michael, collided with the low-hanging
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branches of the tree, was knocked off her bicycle, and sus-
tained serious injuries.
The Williamses filed a tort claim with the City pursuant
to the Political Subdivisions Tort Claims Act (PSTCA), Neb.
Rev. Stat. § 13-901 et seq. (Reissue 2012), seeking damages
in the amount of $1 million. The City rejected the claim. The
Williamses then filed a complaint in the district court. The
complaint alleged that Kathy’s injuries were the result of the
City’s negligent failure to properly prune and maintain the tree
with which Kathy collided.
The City filed an answer, which asserted, among other things,
that it was immune from suit due to sovereign immunity. The
City subsequently filed a motion for summary judgment.
The evidence received at the hearing on the motion for sum-
mary judgment establishes that there are 81,785 “street trees”
under the care of the City’s parks and recreation department
and another 30,505 trees located in the City’s parks. The tree at
issue here is considered one of the “street trees.”
The City’s municipal code requires that the City maintain
“street trees.” See Lincoln Mun. Code § 12.20.030 (2003).
The city charter provides that the city council shall have the
power to provide for the removal or trimming of trees located
along the streets or public ways, including the sidewalk
space, and to trim the branches of trees overhanging them.
In response to these requirements, the City’s parks and rec-
reation department created the community forestry division,
which is responsible for the care and management of all pub-
lic trees, including planting, tree inspections, maintenance,
and removal.
Due to limited resources and budget constraints, the City
established a plan for prioritizing maintenance of trees on a
complaint basis, giving priority to any tree with identified
defects that could result in damage to property or personal
injury and then providing regular maintenance on the City’s
other trees. There is no specific requirement as to how often a
tree must be inspected or trimmed.
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The City never received a complaint or service request
regarding the tree at issue here. It was clear that the three
trees adjacent to the tree with which Kathy collided had
been trimmed, but according to an affidavit of the director of
the City’s parks and recreation department, the City had not
trimmed them on or before the date of the accident, and it is
unknown who did so.
The Williamses offered into evidence the deposition of
their expert witness, Melanie Short. Short is an architect, not
an arborist. She opined that the low-hanging branches on the
subject tree violate the standard of care for safe sidewalks
and bikeways and that the City failed to reasonably main-
tain the trees along the sidewalk, which created a danger-
ous condition that caused Kathy’s fall and injuries. In order
to establish the applicable standard of care, Short looked
at the Lincoln Municipal Code and the 2009 International
Building Code, which she admitted is not applicable here,
but gives a “secondary understanding” of clearances and head
heights. She also used “some best practices both from the
Federal Highway Administration, as well as ASTM,” which
she said is a standards organization for “different types of
issues and industries.” The standard of care Short relied upon
in forming her opinion was based on the standard of care
in architecture, but she did not know if arborists follow the
same standard.
Short explained that the recommended clearance for a tree
branch above a sidewalk is 8 or 9 feet, depending upon who
is making the recommendation. The City’s community forestry
division indicates that the recommended minimum clearance
for a tree branch over a sidewalk is 9 feet. A clearance of 40
inches in width is also recommended. Short admitted, however,
that these numbers are recommendations and not requirements.
According to Short, the sidewalk where the Williamses were
riding their bicycles is 5 feet wide, and she estimated that the
subject tree branches extended at least 3 feet over the sidewalk
and were only 3 feet above the ground.
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The trees lining the sidewalk where the accident occurred
are “Chanticleer flowering pear” trees. The subject tree and
three adjacent trees were planted prior to 2007, and Short did
not know the growth rate for the subject tree or how many
inches per year it grew, acknowledging that trees grow at
different rates and that their growth can be affected by the
weather and environment. She also admitted that she could
not say for how many years the tree’s branches had been
extending over the sidewalk. Short explained that when the
three adjacent trees were trimmed, this tree’s condition would
have been apparent, and it could have been trimmed at the
same time.
In its order on summary judgment, the district court deter-
mined that the discretionary function exception to the PSTCA
applies and that the City did not have a nondiscretionary duty
to warn or take measures to prevent injury. Therefore, the dis-
trict court found that the Williamses’ claims against the City
were barred by sovereign immunity and granted the City’s
motion for summary judgment. The Williamses appeal.
ASSIGNMENTS OF ERROR
The Williamses assign that the district court erred in (1)
failing to recuse itself from the proceedings, (2) finding that
their claim fell within the exceptions to the PSTCA and that
the claims are barred by sovereign immunity, (3) finding
that the City did not have a nondiscretionary duty and did not
have notice of the low-hanging tree branches, and (4) grant-
ing the City’s motion for summary judgment and finding that
there was no genuine issue of material fact.
STANDARD OF REVIEW
[1] A judge shall disqualify himself or herself in any pro-
ceeding in which the judge’s impartiality might reasonably be
questioned. Tierney v. Four H Land Co., 281 Neb. 658, 798
N.W.2d 586 (2011).
[2] Questions of law and statutory interpretation require
an appellate court to reach a conclusion independent of
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the decision made by the court below. Kimminau v. City of
Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).
[3,4] 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. Kimminau v. City of Hastings, supra. An
appellate court has an obligation to reach its conclusion on
whether a claim is precluded by exemptions set forth in the
PSTCA independent from the conclusion reached by the trial
court. Kimminau v. City of Hastings, supra.
[5,6] 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. Id. In reviewing a
summary 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
inferences deducible from the evidence. Id.
ANALYSIS
Judicial Bias.
The Williamses argue that the judge presiding over this pro-
ceeding should have recused herself because she is employed
by Lancaster County, the county in which the City is located,
and is a taxpayer of the City; they claim that she was therefore
inherently biased in favor of the City. We conclude that this
issue has not been preserved for appeal.
[7-9] Under the Nebraska Revised Code of Judicial Conduct,
a judge must recuse himself or herself from a case if the
judge’s impartiality might reasonably be questioned. State
v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017). Under
the code, such instances in which the judge’s impartiality
might reasonably be questioned specifically include where the
judge has a personal bias or prejudice concerning a party or a
party’s lawyer. State v. Buttercase, supra. A defendant seeking
to disqualify a judge on the basis of bias or prejudice bears
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the heavy burden of overcoming the presumption of judicial
impartiality. Id.
[10] A party is said to have waived his or her right to obtain
a judge’s disqualification when the alleged basis for the dis-
qualification has been known to the party for some time, but
the objection is raised well after the judge has participated in
the proceedings. Blaser v. County of Madison, 285 Neb. 290,
826 N.W.2d 554 (2013). Under these facts, once a case has
been litigated, an appellate court will not disqualify a judge
and give litigants “‘“a second bite at the apple.”’” Id. at 299,
826 N.W.2d at 562.
The rule that it is generally too late to raise the issue of
disqualification after the matter is submitted for decision rests
on the principle that a party may not gamble on a favorable
decision. Blaser v. County of Madison, supra. This principle
does not apply when the facts constituting the disqualification
are unknown, because no gamble could have been purpose-
fully made. Id. Instead, the issue of disqualification is timely
if submitted at the earliest practicable opportunity after the
disqualifying facts are discovered. Id.
In the present case, the Williamses did not raise the issue of
disqualification or judicial bias during any of the proceedings
before the district court; rather, the issue was raised for the
first time on appeal. The record before us contains transcripts
of hearings held before the district court on January 26 and
May 3, 2018, on various motions, but the issue of judicial bias
was not raised at either hearing. The Williamses base their
allegations of judicial bias on the fact that the City was a party
to the proceeding; thus, this alleged disqualifying fact was
known to them prior to the hearings. See State v. Buttercase,
supra. And at the conclusion of the January 26 hearing, the
court asked the parties, “Anything else?” Counsel for the
Williamses did not raise the issue at that time. We therefore
find that they failed to raise the issue at the earliest practicable
opportunity and have waived any argument regarding bias.
See id.
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In response to the City’s claim that this issue has not been
properly preserved, the Williamses argue that there “is no
timeframe deadline for recusal of a biased judge” and that no
motion for disqualification is required. Reply brief for appel-
lants at 8. They cite to Neb. Rev. Code of Judicial Conduct
§ 5-302.11, comment 2, which provides that a judge’s obliga-
tion not to hear or decide matters in which disqualification is
required applies regardless of whether a motion to disqualify
is filed.
The “Preamble” to the Nebraska Revised Code of Judicial
Conduct explains that the code establishes standards for the
ethical conduct of judges and judicial candidates. According
to the “Scope” of the Nebraska Revised Code of Judicial
Conduct, the comments that accompany the rules under the
code provide guidance regarding the purpose, meaning, and
proper application of the rules and also identify aspirational
goals for judges. Thus, the code governs the conduct of judges
and requires that a judge disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably
be questioned regardless of whether a motion to disqualify is
filed by a party to the proceeding.
Our case law makes clear, however, that if a party believes
that a judge should recuse himself or herself because of bias,
the party must ask the court to do so at the earliest practicable
opportunity. If the party does not, and the judge participates in
the proceedings, the party waives the right to assert error as
to alleged judicial bias on appeal, and an appellate court will
not allow the party to gamble on a favorable decision and then
afford that party “‘“a second bite at the apple.”’” See Blaser
v. County of Madison, 285 Neb. 290, 299, 826 N.W.2d 554,
562 (2013). See, also, In re Interest of J.K., 300 Neb. 510,
915 N.W.2d 91 (2018); State v. Buttercase, 296 Neb. 304, 893
N.W.2d 430 (2017); Tierney v. Four H Land Co., 281 Neb.
658, 798 N.W.2d 586 (2011). Because the Williamses did not
raise this issue at the earliest practicable opportunity, it has not
been preserved for appeal.
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Discretionary Function
Exception.
The Williamses argue that the district court erred in deter-
mining that their claims under the PSTCA are barred by the
discretionary function exception to the waiver of sovereign
immunity. We disagree.
[11-13] The City is a political subdivision of the State of
Nebraska. See § 13-903(1). The PSTCA reflects a limited
waiver of governmental immunity and prescribes the pro-
cedure for maintenance of a suit against a political subdivi-
sion. Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661
(2007). It is the exclusive means by which a tort claim may
be maintained against a political subdivision or its employees.
Id. Statutes that purport to waive the protection of sovereign
immunity of the State or its subdivisions are strictly construed
in favor of the sovereign and against the waiver. Id.
[14] The PSTCA provides limited waivers of sovereign
immunity, which are subject to statutory exceptions. See
McGauley v. Washington County, 297 Neb. 134, 897 N.W.2d
851 (2017). If a statutory exception applies, the claim is barred
by sovereign immunity. Id.
The statutory exception provided by § 13-910(2) is com-
monly known as the discretionary function exception. See
McGauley v. Washington County, supra. Under that exception,
the PSTCA shall not apply to any claim based upon the exer-
cise or performance of or the failure to exercise or perform a
discretionary function or duty on the part of the political sub-
division or an employee of the political subdivision, whether
or not the discretion is abused. § 13-910(2). Examples of
discretionary functions include the initiation of programs and
activities, establishment of plans and schedules, and judgmen-
tal decisions within a broad regulatory framework lacking spe-
cific standards. Kimminau v. City of Hastings, 291 Neb. 133,
864 N.W.2d 399 (2015).
[15] A court engages in a two-step analysis to determine
whether the discretionary function exception of the PSTCA
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applies. Id. First, the court must consider whether the action
is a matter of choice for the acting employee. Id. This inquiry
is mandated by the language of the exception; conduct cannot
be discretionary unless it involves an element of judgment
or choice. Berkovitz v. United States, 486 U.S. 531, 108 S.
Ct. 1954, 100 L. Ed. 2d 531 (1988) (considering discretion-
ary function exception of Federal Tort Claims Act). Thus, the
discretionary function exception will not apply when a statute,
regulation, or policy specifically prescribes a course of action
for an employee to follow. Id. In this event, the employee has
no rightful option but to adhere to the directive. Id. And if the
employee’s conduct cannot appropriately be the product of
judgment or choice, then there is no discretion in the conduct
for the discretionary function exception to protect. Id. 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 excep-
tion was designed to shield. Kimminau v. City of Hastings,
supra. 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. Id.
See, also, Berkovitz v. United States, supra.
In order to determine whether the challenged conduct in
the present case involves an element of choice or judgment
under the first step of the analysis, we look to factually simi-
lar federal cases. See Lemke v. Metropolitan Utilities Dist.,
243 Neb. 633, 502 N.W.2d 80 (1993) (discretionary function
exception of Federal Tort Claims Act is substantially similar
to PSTCA).
In Autery v. U.S., 992 F.2d 1523 (11th Cir. 1993), a tree in
a national park fell on a car, killing the driver and injuring
the passenger. The plaintiffs filed suit against the government
under the Federal Tort Claims Act. At the time of the acci-
dent, the park service had an unwritten policy to make every
reasonable effort within the constraints of budget, manpower,
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and equipment available to detect, document, remove, and
prevent tree hazards. To implement the policy, the park service
required personnel to initially conduct visual inspections from
trucks driven along the road. Any tree that appeared hazardous
was then inspected more closely.
On appeal, the 11th Circuit determined that for purposes of a
discretionary function exception analysis, it must first identify
the specific governmental conduct at issue. The court observed
that it is the governing administrative policy that determines
whether certain conduct is mandatory for purposes of the dis-
cretionary function exception. Therefore, the relevant inquiry
is whether controlling statutes, regulations, and administrative
policies mandated that the park service inspect for hazard-
ous trees in a specific manner. If not, then the park officials’
decision to employ a particular inspection procedure, and its
execution of that plan, is protected by the discretionary func-
tion exception.
The 11th Circuit recognized that the applicable laws afforded
the government broad authority to promote and regulate its
parks and the discretion for the destruction of plant life as
may be detrimental to the use of the parks. The court con-
cluded that pursuant to those statutory grants of authority, the
park service had discretion to design and implement a policy
for evaluating and removing trees from the park. Further, the
park service’s unwritten policy prescribed neither a particu-
lar method of inspection nor special rules for inspecting this
particular type of tree. The court recognized that such general
guidelines are insufficient to deprive the government of the
protection of the discretionary function exception and that only
if a federal statute, regulation, or policy specifically prescribes
a course of action, embodying a fixed or readily ascertainable
standard, will the conduct of the government not fall within
the discretionary function exception. The court therefore held
that the decisions made by the park service in designing and
implementing its tree inspection program fell within the ambit
of the discretionary function exception.
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Similarly, in Merando v. U.S., 517 F.3d 160 (3d Cir. 2008),
a tree in a national recreational area fell on a vehicle, killing
two passengers. The evidence established that the tree’s natural
growth caused it to lean with its branches extending over the
roadway and that more than 10 years before the accident, an
unknown person had trimmed the tree. The plaintiffs brought
a claim under the Federal Tort Claims Act. The government
moved to dismiss the action on the basis of the discretionary
function exception, and the trial court granted the motion.
On appeal, the Third Circuit, like the court in Autery v.
U.S., 992 F.2d 1523 (11th Cir. 1993), determined that the
relevant inquiry was whether the controlling statutes, regula-
tions, and administrative policies mandated that the park serv­
ice, which managed the recreational area, locate and manage
hazardous trees in any specific manner. The applicable regu-
lations generally afforded the authority to maintain and man-
age the recreational area and protect visitor safety. The park
service’s management policies specifically provided that the
means by which public safety concerns are to be addressed
is left to its discretion, working within the limits of funding
and staffing.
The Third Circuit concluded that the controlling statutes,
regulations, and policies that led to the creation of the park
service’s plan did not mandate any particular methods of haz-
ardous tree management such as inspecting certain trees on
certain days or removing a particular number of trees per week.
In addition, although the park service’s unwritten plan required
personnel to scan for hazardous trees as they drove the recre-
ational area’s roads, there was no statute, regulation, or policy
dictating the specifics of that requirement such as when or how
often personnel must drive or when they must exit their vehi-
cles to conduct individual tree inspections. Therefore, the Third
Circuit concluded that the park service’s plan came within the
discretionary function.
In the present case, the Williamses argue that mainte-
nance of the City’s trees overhanging a sidewalk was not a
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discretionary function, because the City was required by law
to trim and maintain its trees and to maintain sidewalks in a
reasonably safe condition; thus, there was no choice or dis-
cretion involved. However, the Williamses misidentify the
particular conduct at issue. As the federal courts of appeal
held in Autery v. U.S., supra, and Merando v. U.S., supra, the
relevant inquiry is whether the controlling statutes, regulations,
and administrative policies mandate the location and manage-
ment of hazardous trees in a specific manner. If not, then the
official’s decisions as to the precise manner in which to do so,
and execution of that plan, are protected by the discretionary
function exception.
We agree with the Williamses that under the applicable regu-
lations, the City had a duty to maintain its trees. Specifically,
the Lincoln Municipal Code provides that the selection, plant-
ing, maintenance, and removal of trees along public ways
within the City are matters over which the City must exercise
the control set forth under the municipal code. Lincoln Mun.
Code § 12.20.010 (2003). The municipal code further provides
that the trimming, spraying, removing, and destroying of all
existing trees and of all “street trees . . . planted in or upon any
street, parkway, sidewalk space, or other public way within the
[C]ity, shall be done by and at the expense of the [C]ity and at
its discretion and by no other person.” § 12.20.030. But noth-
ing under these sections of the municipal code delineate how
or when the maintenance is to be done. And the municipal code
specifically grants the City discretion regarding maintenance of
its trees.
The Williamses also cite to Neb. Rev. Stat. § 15-734 (Reissue
2012). Section 15-734 provides the City with “general charge,
control, and supervision of the streets and sidewalks thereof”
and requires the City to “maintain the same in a reasonably
safe condition.” In order to define “reasonably safe,” the
Williamses direct our attention to Neb. Rev. Stat. § 39-1812
(Reissue 2016), which mandates that trees “shall be trimmed
from the ground up eight feet.”
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Although § 15-734 requires the City to maintain its side-
walks, it is questionable whether this statute would apply to
the maintenance of trees adjacent to a sidewalk, particularly
when the statute specifically requires maintenance of sidewalks
“in a safe and sound condition and free from snow, ice, and
other obstructions.” Regardless, assuming without deciding
that sidewalk maintenance includes maintaining and trimming
the trees adjacent to a sidewalk, § 15-734 does not impose
any obligation upon the City to make regular inspections for
safety or defects or provide how or when maintenance must
be performed. Thus, similar to the provisions of the municipal
code, § 15-734 imposes an obligation upon the City, but allows
the City to exercise discretion in determining how to fulfill its
obligation to maintain its sidewalks.
[16] Having concluded that the challenged conduct involves
an element of judgment, we must now determine whether that
judgment is of the kind that the discretionary function excep-
tion was designed to shield. Kimminau v. City of Hastings,
291 Neb. 133, 864 N.W.2d 399 (2015). 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. Id. See, also, Berkovitz v. United States, 486
U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988).
After deciding that no mandatory statute, regulation, or
policy controlled the development and implementation of the
unwritten tree inspection policy, the 11th Circuit in Autery v.
U.S., 992 F.2d 1523 (11th Cir. 1993), addressed whether the
choices involved in such a development and implementation
were grounded in social, economic, and public policy. The
court observed that generally, courts have held that decisions
about what safety measures to employ in national parks and
how to execute them involve balancing the same consider-
ations that inform all policy decisions regarding the man-
agement of national parks: safety, aesthetics, environmental
impact, and available financial resources. The 11th Circuit
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recognized that the U.S. Supreme Court has cautioned against
conducting a fact-based inquiry into the circumstances sur-
rounding the government actor’s exercise of a particular dis-
cretionary function, urging courts instead to look to the nature
of the challenged decision in an objective, or general, sense
and ask whether that decision is one which would be inher-
ently grounded in considerations of policy. Autery v. U.S.,
supra (citing United States v. Gaubert, 499 U.S. 315, 111
S. Ct. 1267, 113 L. Ed. 2d 335 (1991)). When established
governmental policy, as expressed or implied by statute, regu-
lation, or agency guidelines, allows a government agent to
exercise discretion, it must be presumed that the agent’s acts
are grounded in policy when exercising that discretion. United
States v. Gaubert, supra. Under the facts of Autery v. U.S.,
supra, the 11th Circuit concluded that to decide on a method
of inspecting potentially hazardous trees, and in carrying out
the plan, the park service likely had to determine and weigh
the risk of harm from trees in various locations, the need for
other safety programs, the extent to which the natural state of
the forest should be preserved, and the limited financial and
human resources available.
Similarly, in the instant case, the City is afforded the discre-
tion to determine how to maintain its trees, and we therefore
presume that the City’s acts in carrying out that discretion are
grounded in policy. The evidence supports that presumption
where the affidavit of the director of the City’s parks and rec-
reation department states that in order to carry out the City’s
obligation of maintaining its trees, it created the community
forestry division and established a complaint-based schedule
for prioritizing potentially hazardous trees. The community
forestry division and tree maintenance are funded through the
City’s general fund budget, which, according to the affidavit,
has been limited in the past 15 years or more due to budget
constraints. The affidavit avers that tree maintenance is con-
ducted as diligently as possible using available but limited
funds by completing maintenance first on trees that have been
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identified with defects that could result in damage to property
or personal injury and then providing regular maintenance to
other trees. These are the types of policy decisions the discre-
tionary function exception was designed to protect and which
we will not second guess. We therefore conclude that the dis-
trict court did not err in finding that the discretionary function
exception applies to bar the Williamses’ claims.
Nondiscretionary Duty
and Notice.
The Williamses argue that the district court erred in finding
that the City did not have a nondiscretionary duty to warn and
did not have actual or constructive notice of the low-hanging
tree branches. We find no merit to this argument.
[17,18] The discretionary function exception does not apply
when the governmental entity has a nondiscretionary duty to
warn or take other protective measures that may prevent injury
as the result of the dangerous condition or hazard. McGauley
v. Washington County, 297 Neb. 134, 897 N.W.2d 851 (2017).
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 per-
sons who are likely to be injured by the dangerous condition
or hazard. Id.
In the present case, the uncontroverted evidence establishes
that the City had no actual notice of the low-hanging tree
branches. The affidavit of the director of the City’s parks and
recreation department states that the City had never received
a complaint or service request regarding the tree at issue here
and that although the adjacent trees had been trimmed, they
had not been trimmed by the City and the City was unaware of
who had trimmed them. Thus, it is undisputed that the City had
no actual notice of a dangerous condition.
The Williamses argue that the City had constructive notice
because of the length of time the tree had been overgrown.
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To support their argument, they rely upon Foels v. Town of
Tonawanda, 75 Hun 363, 27 N.Y.S. 113 (1894). There, the
plaintiff was injured when she stepped into a hole in the side-
walk of a highway bridge. There was evidence tending to show
that the hole had been in the sidewalk for 2 or 3 weeks imme-
diately prior to the accident, which the New York Supreme
Court found was ample time to justify the jury’s finding that
the town had constructive notice of it.
Similarly, in Gielen v. City of Florence, 94 Neb. 619, 143
N.W. 932 (1913), the plaintiff was injured when she stumbled
on a pile of bricks on the sidewalk. The evidence established
that for several months prior to the accident, bricks had been
piled in a row on the sidewalk (where the plaintiff was injured)
by a city contractor preparing to pave the street. While walk-
ing on the sidewalk one night, the plaintiff stumbled on a pile
of bricks, which was a new obstruction of which she had no
knowledge. The pile had been on the sidewalk for approxi-
mately 2 weeks. The Nebraska Supreme Court, relying upon
Foels v. Town of Tonawanda, supra, among other cases, deter-
mined that the question as to whether the obstruction remained
on the sidewalk for a length of time sufficient to charge the
defendant with notice was properly submitted to the jury. And
the Supreme Court found that the evidence was sufficient to
justify a finding that the city had constructive notice and was
negligent in failing to remove the obstacle before the plaintiff
was injured.
We find Foels v. Town of Tonawanda, supra, and Gielen v.
City of Florence, supra, distinguishable, because in the instant
case, there was nothing that would place the City on notice that
the tree needed to be trimmed or evidence of a specific period
of time that a dangerous condition existed. In Gielen v. City
of Florence, supra, an employee of the defendant stacked the
bricks on the sidewalk, giving rise to constructive notice that a
dangerous condition could exist. Here, however, although the
City planted the tree sometime prior to 2007, nothing occurred
in the interim to place the City on notice that a dangerous
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condition could exist. While it is obvious that the tree contin-
ued to grow during that time, Short explained that the growth
rate of the tree is unknown and that it is unclear how long the
branches were overhanging the sidewalk. Thus, there was no
timeframe from which it could be inferred that the City had
constructive notice of a dangerous condition.
Additionally, Short’s opinion that the City would have had
knowledge of the tree’s dangerous condition was based on her
belief that the City trimmed the surrounding three trees, thus
giving it notice of this tree’s condition. But the evidence is
uncontroverted that the City did not trim the three trees adja-
cent to the subject tree, and it is unknown who did so.
Moreover, Short is an architect, not an arborist, and she
admitted that the standard of care she referenced was based
on codes which come together to create the standard of care
in architecture, but she did not know whether arborists follow
the codes she referenced. Essentially, Short opined that the
branches of the tree at issue were overhanging the sidewalk
for an unknown period of time, creating a dangerous condition
based on recommendations, not requirements, and a standard
of care that arborists may or may not follow, and that the City
had constructive notice of a dangerous condition based on the
faulty premise the City had trimmed the surrounding trees.
This evidence does not prove actual or constructive knowl-
edge on the part of the City, nor does it create a genuine issue
of material fact as to whether the City had knowledge of this
tree’s condition. We therefore conclude that the district court
did not err in determining that the City did not have actual or
constructive notice of a dangerous condition.
In addition to the absence of notice of a dangerous condi-
tion, the district court also determined that the evidence estab-
lishes that the hazard was readily apparent. We note that the
Williamses do not challenge this conclusion on appeal, and we
agree with the district court’s decision.
According to Michael’s affidavit, he was riding in front
of Kathy and saw the low-hanging tree branches when he
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was approximately 20 to 30 feet away. He warned Kathy and
veered around the tree. The district court found it significant
that Michael had time to warn Kathy about the overgrown tree
and still avoid it by maneuvering around it. The photographs
of the tree at issue depict its branches extending over the side-
walk, and according to Short, the branches extended at least
3 feet over the 5-foot-wide sidewalk. Short testified in her
deposition that the branches extending over the sidewalk were
visible. As a result, the district court did not err in determining
that the dangerous condition was readily apparent.
Because the evidence establishes that the City did not have
actual or constructive notice of a dangerous condition and that
the dangerous condition was readily apparent, we conclude
the district court properly determined that there was no non-
discretionary duty to warn or take other protective measures.
Accordingly, this assigned error lacks merit.
Summary Judgment.
The Williamses argue that the district court erred in grant-
ing the City’s motion for summary judgment, because they
presented numerous genuine issues of material fact. They spe-
cifically allege that issues of fact exist, because Short testified
as to the “clearance standard for trees” and they testified that
“they believed they were riding their bicycles on a bicycle
path and were using a public right-of-way.” Brief for appel-
lants at 23. They also claim that they presented facts regard-
ing the City’s discretionary versus ministerial duty, the nature
of the City’s duty to trim trees, and the City’s actual and
constructive notice “due to the disputed fact of who trimmed
the three adjacent trees and to the fact of how long the tree
at issue had been dangerously overgrown and low-hanging.”
Id. at 23.
The Williamses do not explain how these issues created
issues of material fact, and we have generally addressed them
above, determining that the district court properly granted
the City’s motion for summary judgment. To briefly recap,
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although Short explained the clearance standards for trees, she
admitted that the numbers provided were merely recommenda-
tions and not requirements, and she could not estimate how
long the tree at issue had surpassed the recommended clear-
ances. Although the Williamses may have believed they were
riding on a bicycle path, an affidavit of the City’s director of
the planning department states that that particular sidewalk
“was not a designated bike path or facility,” but that bicycling
on that sidewalk was not prohibited. Regardless, this does not
change the fact that the recommended clearance levels were
not mandatory.
We additionally determined above that setting a tree main-
tenance schedule was a discretionary function of the City.
And despite the Williamses’ argument, the evidence was
undisputed that the City did not trim the trees adjacent to the
tree at issue here. According to the affidavit of the director
of the City’s parks and recreation department, the City had
not trimmed the three adjacent trees on or before the date of
the accident, and it was unknown who trimmed them. The
Williamses did not present any evidence to the contrary which
would establish that the City had, in fact, trimmed those trees,
placing it on notice of the dangerous condition of the subject
tree. We therefore disagree that the evidence established any
genuine issue of material fact which would have precluded
entry of judgment as a matter of law. Accordingly, the dis-
trict court did not err in granting the City’s motion for sum-
mary judgment.
CONCLUSION
Having rejected the arguments raised on appeal, we con-
clude that the district court did not err in determining that the
Williamses’ claims against the City are barred by sovereign
immunity and in granting the City’s motion for summary judg-
ment. We therefore affirm the district court’s order.
A ffirmed.