Blaser v. Cnty. of Madison

• Decision Date: 22 February 2013
• Docket Number: No. S–12–558.,S–12–558.
• Citation: 285 Neb. 290,826 N.W.2d 554
• Parties: Larry BLASER et al., appellees, v. COUNTY OF MADISON, Nebraska, a political subdivision, appellant.
• Court: Nebraska Supreme Court

285 Neb. 290

826 N.W.2d 554

Larry BLASER et al., appellees,

v.COUNTY OF MADISON, Nebraska, a political subdivision, appellant.

No. S–12–558.

Supreme Court of Nebraska.

Feb. 22, 2013.

Syllabus by the Court

[285 Neb. 290]1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought under the Political Subdivisions Tort Claims Act, an appellate court will not disturb the factual findings of the trial court unless they are clearly wrong.

2. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

3. 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.

4. Negligence: Appeal and Error. Whether a defendant breaches a duty is a question of fact for the fact finder, which an appellate court reviews for clear error.

5. Statutes. Statutory interpretation presents a question of law.

6. 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 disqualification has been known to the party for some time, but the objection is raised well after the judge has participated in the proceedings.

7. Appeal and Error: Words and Phrases. Plain error is error uncomplained of at trial and is plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

8. Judges: Recusal. A trial judge should recuse himself or herself when a litigant demonstrates that a reasonableperson who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.

9. Negligence: Proof. In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.

10. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

11. Negligence. It is for the fact finder in a negligence case to determine, on the facts of each individual case, whether or not the evidence establishes a breach of duty.

12. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

13. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

14. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

15. Statutes. Statutes which effect a change in the common law are to be strictly construed.

16. Negligence. The existence of a duty serves as a legal conclusion that an actor must exercise such degree of care as would be exercised by a reasonable person under the circumstances.

17. Negligence. Duty rules are meant to serve as broadly applicable guidelines for public behavior, i.e., rules of law applicable to a category of cases.

18. Pleadings. The issues in a case are framed by the pleadings.

Vincent Valentino, Lincoln, for appellant.

Todd B. Vetter, Norfolk, of Fitzgerald, Vetter & Temple, for appellee.

WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.

MILLER–LERMAN, J.

NATURE OF CASE

Larry Blaser, Terry McCaw, and Patricia McCaw, the appellees, brought this negligence action in the district court for Madison County along with Sharon Blaser against the County of Madison, Nebraska (the County), the appellant, under the Political Subdivisions Tort Claims Act after Larry and Terry were injured in a single-vehicle accident in which Larry drove into a washout on a vacated county road. The appellees alleged that the County was negligent by failing to maintain the “Road Closed” warning sign. Following trial, the district court found the County liable for negligence and, after finding Larry 40–percent contributorily negligent, entered judgment against the County.

On appeal, the County claims that it was plain error for the first judge, who recused himself, to name a second judge as the successor judge. With respect to the merits, the County claims that although it may have had an obligation to warn travelers of the washout, the district court erred when it concluded that the County had a “duty” to maintain the vacated road and breached this duty. The County claims that it did not have “actual” or “constructive” knowledge its road closed warning sign was down on the day of the accident and that the district court erred when it failed to determine whether the County retained its sovereign immunity, which determination would resolve this issue.

We find no plain error with respect to naming the second judge. We determine that the district court erred when it concluded that the County had a duty to maintain the vacated road. We also determine that the district court erred when it determined that the issue whether the County had actual or constructive knowledge that its warning sign was down was a “non-issue” and when it failed to determine whether there was merit to the County's reliance on alleged retention of sovereign immunity under Neb.Rev.Stat. § 13–910(9) (Reissue 2007). We reverse, and remand this matter to the district court with directions, inter alia, to determine whether the County had 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 and whether the County had a reasonable amount of time to remedy the problem in order to determine whether or not the County retained its sovereign immunity.

STATEMENT OF FACTS

These parties were previously before us in case No. S–11–1048. In that prior case, the County brought an appeal based upon the same underlying facts and record described below. On June 6, 2012, we dismissed that previous appeal for lack of jurisdiction pursuant to Neb. Ct. R.App. P. § 2–107(A)(2) (rev.2012) due to the absence of a final, appealable order. Although Sharon Blaser was an appellee in case No. S–11–1048, the district court's order filed September 15, 2011, had not disposed of Sharon's claims. Following our dismissal of case No. S–11–1048, the district court dismissed Sharon's claims by an order filed June 21, 2012. The County again appealed, and this is the appeal currently before us.

On November 9, 2008, Larry was driving his 1996 Ford Ranger pickup southbound on the vacated road, 545th Avenue, and Terry was riding as a passenger. While traveling on the vacated road, Larry and Terry 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, Larry sustained mild injuries, and Terry sustained severe injuries. Patricia cared for Terry after the accident. This accident gives rise to this case.

According to the trial record, on October 19, 2004, the County's board of commissioners adopted resolution No.2004–78, which vacated a 1–mile stretch of 545th Avenue, a north-south roadway, between 845th Road and 846th Road. However, the County specifically qualified the vacation and stated that the County retained a right-of-way over the vacated road subject to any easements of record. The intersection of 545th Avenue and 846th Road is the north end of the vacated portion of the road, and the intersection of 545th Avenue and 845th Road is the south end. Additionally, 846th Road is the county line between Madison County and Pierce County, with Madison County lying to the south.

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. Larry and Terry testified that on the day of their accident, they did not observe any road closed signs. The deputy who investigated Larry and Terry's 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 November 9, 2008, the day of Larry and Terry's 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 Larry and Terry's accident.

A couple of weeks prior to the accident at issue in this case, another accident occurred involving the same washout on the vacated road. Between October 27 and October 30, 2008, Drahota notified 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. On November 3, as part of his investigation, he discovered that one of the occupants of the abandoned vehicle had been injured as a result of driving into the washout and had sought treatment at a hospital. However, the deputy's subsequent attempts to contact the owners of the abandoned vehicle were...