Nebraska Supreme Court Clarifies Political Subdivision Appellate Rights

Under Nebraska law, political subdivisions may not be sued without an express grant of power because they maintain sovereign immunity. The Nebraska Political Subdivisions Tort Claims Act (“PSTCA”) provides a limited waiver of sovereign immunity with respect to some types of tort claims against political subdivisions. Neb. Rev. Stat. § 13-901 et seq. One of the newest features of the PSTCA is that political subdivisions enjoy an immediate right to appeal when a request for immunity is denied by a trial court on summary judgment. The Nebraska Supreme Court was recently presented with an issue of first impression as to the limitations of that right to immediate appeal.  

In Clark v. Sargent Irrigation Dist., 311 Neb. 123 (2022), the Nebraska Supreme Court analyzed whether a district court’s denial of a political subdivision’s pretrial motion was a final order under Neb. Rev. Stat. § 25-1902(1)(d). In Clark, an irrigation district employee prepared a mixture of herbicides and sprayed the mix on several trees along a canal, which damaged the crops of nearby landowners. The landowners filed suit in the District Court for Custer County, alleging that the district’s employee was negligent in preparing the herbicide. The irrigation district moved the district court for summary judgment, arguing that the employee’s actions of preparing the herbicide fell within the discretionary function exemption of the PSTCA. The exemption states that the performance or nonperformance of a discretionary function cannot be the basis of tort liability of the political subdivision under the PSTCA.

The district court denied the irrigation district’s motion, reasoning that the discretionary function exemption does not apply when a statute, regulation, or policy specifically describes a course of action. The irrigation district sought an interlocutory appeal on the district court’s Order denying its motion for summary judgment.

The Nebraska Supreme Court concluded that it had appellate jurisdiction to review the irrigation district’s assignment of error under § 25-1902(1)(d) because the motion at issue was based on the assertion of the district’s sovereign immunity, the denial of which does constitute an appealable order. Clark v. Sargent Irrigation Dist. stands for the proposition that a district court’s denial of a political subdivision’s motion for summary judgment asserting the PSTCA’s discretionary function exemption was a final appealable order under § 25-1902(1)(d).

E|S attorneys have vast experience and a deep understanding of the Nebraska Political Subdivision Torts Claim Act. Matt Reilly and E|S litigators can be reached at 402-397-2200. 

Partner Matt Quandt granted summary judgment in Sarpy County

Matt represented the City of Springfield, Nebraska regarding a single-vehicle injury accident that occurred within city limits. Plaintiff sued the City alleging:

• Improper intersection control under the Manual on Uniform Traffic Control Devices;

• Failing to reasonably place a “Stop” or “Yield” sign at the uncontrolled “T” intersection;

• Failing to place visible traffic control devices at an intersection with inadequate sight distance (Clear Sight Triangle) for uncontrolled approaching vehicles;

• Inadequate guidance for motorists approaching the uncontrolled “T” intersection;

• In constructing a retaining wall in excess of six feet high when the Defendant knew, or in the exercise of reasonable care should have known that said retaining wall would be unreasonably dangerous and/or present a hazard for members of the public;

• In constructing a retaining wall in excess of six feet high without providing a barrier at the top of said retaining wall to deter pedestrians, bikers and motorists from falling over the edge of the retaining wall when the Defendant knew or in the exercise of reasonable care should have known that said retaining wall would be unreasonably dangerous and/or present a hazard for members of the public;

• In failing to warn members of the public of the existence of the retaining wall hazardous drop off in excess of six feet;

• Violation of city ordinance regarding retaining wall height;

• Failing to provide a forgiving roadside suitable for the safe recovery and control of errant vehicles leaving the street.

Plaintiff claimed over $135,000 in medical bills, past and future lost wages, and permanent injury and disability.

With the help of Creighton law clerk Ali Clark, Matt filed a Motion for Summary Judgment. They argued that the City has discretionary function immunity, the purpose of which is to "prevent judicial 'second-guessing' of legislative and administrative decision grounded in social, economic, and political policy through the medium of an action in tort," and that Plaintiff was the sole proximate cause of the accident. After full briefing and oral arguments, Hon. George A. Thompson agreed and held:

• Defendant has sovereign immunity under the Political Subdivision Tort Claims Act; and

• Defendant was not the proximate cause of the accident.

The District Court of Sarpy County granted Defendant’s Motion for Summary Judgment and dismissed Plaintiff’s Complaint with prejudice.

Erickson | Sederstrom’s experienced litigation group is well-versed in defending claims brought under the Political Subdivision Tort Claims Act. Don’t hesitate to contact us with any litigation needs.