Clark v. Sargent Irrigation Dist.
| Decision Date | 11 March 2022 |
| Docket Number | S-21-288. |
| Citation | 311 Neb. 123,971 N.W.2d 298 |
| Parties | Donald CLARK and Kimberly Clark, appellees, v. SARGENT IRRIGATION DISTRICT, a political subdivision, and Doug Kriss, an employee of Sargent Irrigation District, appellants. |
| Court | Nebraska Supreme Court |
Jared J. Krejci, Grand Island, of Smith, Johnson, Allen, Connick & Hansen, for appellants.
Nicholas R. Norton and Nicholas J. Ridgeway, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., Kearney, for appellees.
In this negligence action, landowners allege that a political subdivision's employee negligently mixed and overapplied an off-label herbicide mixture, causing damage to their corn crop. After the district court denied the political subdivision's motion for summary judgment, the political subdivision filed this interlocutory appeal pursuant to Neb. Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2020), assigning two primary errors. We conclude that § 25-1902(1)(d) confers appellate jurisdiction to review one of the assigned errors, but not the other. We therefore dismiss that portion of the appeal over which we lack jurisdiction, and we otherwise affirm.
The Sargent Irrigation District (SID) is a political subdivision in Custer County, Nebraska. On July 3, 2019, SID employee Doug Kriss prepared a mixture of herbicides and sprayed it on several trees along a canal. At the time, Kriss was licensed as a noncommercial applicator under Nebraska's Pesticide Act.1
Donald Clark and Kimberly Clark own property in Custer County near the canal where Kriss sprayed the herbicide mixture. In July 2019, the Clarks began to notice damage to their corn crop. They suspected the damage was caused by the herbicide mixture used by Kriss.
On June 29, 2020, the Clarks’ attorney submitted a written claim to the SID pursuant to the Political Subdivisions Tort Claims Act (PSTCA).2 The claim alleged that on July 3, 2019, Kriss prepared a herbicide mixture using "one quart of 2-4-D, one cup of crop oil, and 25 gallons of water." Kriss then added this mixture to a tank which had not been properly rinsed out from a prior use and contained "approximately three gallons" of Roundup herbicide. The claim described this as an "improper mixture of herbicides," and it alleged that Kriss then overapplied the mixture to the trees along the canal. When the Clarks noticed damage to their corn, they obtained opinions from two agronomists that the crop damage was caused by "the off-label application and overapplication of a herbicide" mixture by the SID, which drifted onto the Clarks’ property causing damage to 9,673 bushels of corn. Attached to the claim was a written statement signed by Kriss and the SID's general manager. The statement admitted that the sprayer Kriss used to apply the herbicide mixture had not been properly rinsed out before use and that as a result, the herbicide mixture applied to the trees contained 3 gallons of Roundup. The statement also acknowledged that Kriss may have overapplied the mixture.
On July 7, 2020, the SID's board of directors held a regular monthly meeting. The minutes from the SID board meeting state:
[The SID's general manager] presented a letter from the [SID's attorney] with a legal recommendation at this time not to settle with [the] Clark[s] on the claim and not to overrule the opinion of the insurance adjuster. [It was] moved and seconded ... to follow the [SID's] attorney's recommendation on the Clark claim.... The motion carried.
On September 1, 2020, the Clarks filed this negligence action against the SID and Kriss in the district court for Custer County. The complaint alleged that Kriss, acting in his capacity as an employee of the SID, was negligent in (1) using an off-label mixture of "2-4-D" and Roundup which was "not in accordance with the herbicides’ label instructions," (2) overapplying the off-label mixture, and (3) failing to apply the mixture in a reasonable and prudent manner. It alleged the SID was vicariously liable for Kriss’ negligence and was independently negligent for failing to properly train and supervise Kriss. The complaint alleged that before filing suit, the Clarks submitted a written claim to the SID on June 29, 2020, and that the SID made a final disposition denying the claim on July 7.
The SID and Kriss moved to dismiss the complaint, citing two grounds: (1) The Clarks "fail[ed] to comply with the requirements of the [PSTCA]," and (2) the Clarks’ claims "fall within the discretionary function or duty exception to the [PSTCA]." The motion to dismiss was later converted to a motion for summary judgment.
At the hearing on the motion, three exhibits were offered and received without objection. The defense offered the affidavit of the SID's manager, which had as an attachment a copy of the minutes from the July 7, 2020, SID board meeting. The Clarks offered two exhibits: (1) a certified copy of their complaint with attachments and (2) an affidavit from the Clarks’ attorney attaching a copy of Kriss’ license as a noncommercial pesticide applicator.
After receiving the evidence, the court heard arguments from the parties. Defense counsel's primary argument was that the Clarks’ claim was barred by the PSTCA's discretionary function exemption.3 In response, the Clarks argued that the discretionary function exemption was inapplicable because Nebraska's Pesticide Act did not give the SID or Kriss discretion to mix, use, or apply herbicides in a manner inconsistent with its labeling. The court took the matter under advisement.
In an order entered March 8, 2021, the court denied the motion for summary judgment. It limited its analysis to the applicability of the discretionary function exemption, finding that the SID and Kriss had abandoned any other theory. The court concluded that the SID and Kriss were not entitled to summary judgment based on the discretionary function exemption, citing to § 2-2643.01 of Nebraska's Pesticide Act, which provides in relevant part:
Relying on this statute, and noting there was no factual dispute that Kriss was a license holder under Nebraska's Pesticide Act or that he had overapplied an off-label herbicide mixture, the court reasoned:
The discretionary function exemption does not apply when a statute, regulation or policy specifically describes a course of action. [Section 2-2643.01] prescribes a specific course of action. It requires license holders to use a pesticide only according to its labeling. The law does not allow a choice for Kriss and the challenged conduct does not involve an element of judgment. Kriss was not
allowed to violate the statute. The court therefore concluded that Kriss’ conduct in improperly mixing and overapplying the herbicide mixture did not fall within the discretionary function exemption, and it denied the summary judgment motion. The SID and Kriss filed this timely appeal, which we moved to our docket on our own motion. For ease of reference, the remainder of our opinion will refer to the appellants collectively as "the SID."
The SID assigns, consolidated and restated, that the district court erred in denying its motion for summary judgment, because (1) the discretionary function exemption applies to bar the Clarks’ claims and (2) the Clarks did not comply with the "final disposition" requirements of the PSTCA.
Whether a plaintiff's negligence claims are precluded by an exemption to the PSTCA is a question of law for which an appellate court has a duty to reach its conclusions independent of the conclusions reached by the district court.4
An appellate court reviews the district court's ruling on a motion for summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.5
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.6
The SID seeks interlocutory appellate review of an order denying a motion for summary judgment. The general rule is that an order denying summary judgment is not a final, appealable order.7 But in 2019, in response to our opinion in E.D. v. Bellevue Pub. Sch. Dist. ,8 the Legislature carved out a limited exception to this general rule and amended § 25-1902 to create a new category of final orders for purposes of appeal.9 Under § 25-1902(1)(d), a final order now includes "[a]n order denying a motion for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official."
We have issued three opinions relying on § 25-1902(1)(d) as the basis for our appellate jurisdiction: Great Northern Ins. Co. v. Transit Auth. of Omaha ( Great Northern II ),10 Mercer v. North Central Serv. ,11 and Great Northern Ins. Co. v. Transit Auth. of Omaha ( Great Northern I ).12 In each case, the parties characterized the summary judgment motion at issue as being based on the assertion of sovereign immunity, and no one challenged that characterization. Consequently, we have not yet analyzed the circumstances under which a summary judgment motion will satisfy the requirements of § 25-1902(1)(d). We consider that question now as it regards "the assertion of sovereign immunity," and we ultimately conclude that § 25-1902(1)(d) applies more narrowly than our prior opinions might suggest.
Before turning to the language of the statute, we review familiar principles of statutory construction. To discern the meaning of a...
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