Jasa By and Through Jasa v. Douglas County
| Decision Date | 21 January 1994 |
| Docket Number | No. S-91-970,S-91-970 |
| Citation | 510 N.W.2d 281,244 Neb. 944 |
| Parties | Sean Thomas JASA, By and Through his Father, Mother, and Next Friends, Stephen Scott JASA and Ivy Jo Jasa, Appellee, v. DOUGLAS COUNTY, a Nebraska Political Subdivision, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Political Subdivisions Tort Claims Act: Liability. Under the provisions of Neb.Rev.Stat. § 13-910(2) (Reissue 1991), the performance or nonperformance of a discretionary function cannot be the basis of liability.
2. Political Subdivisions Tort Claims Act: Liability. Whether the undisputed facts demonstrate that liability is precluded by the discretionary function exemption contained in Neb.Rev.Stat. § 13-910 (Reissue 1991) is a question of law.
3. Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a correct conclusion independent of that reached by the court below.
4. Political Subdivisions Tort Claims Act: Tort Claims Act: Liability. As the discretionary function exemption is expressed in nearly identical language in Neb.Rev.Stat. § 81-8,219(1)(a) (Reissue 1987) of the State Tort Claims Act and Neb.Rev.Stat. § 13-910(2) (Reissue 1991) of the Political Subdivisions Tort Claims Act, cases construing the state exemption apply as well to the exemption given political subdivisions.
5. Political Subdivisions Tort Claims Act: Tort Claims Act: Liability: Words and Phrases. That which is protected under the discretionary function exemption is the discretion of a governmental executive or administrator to act according to his or her judgment of the best course to be taken; such discretion includes more than the initiation of programs and activities; it includes determinations or judgments made in establishing plans, specifications, or schedules of operations.
6. Political Subdivisions Tort Claims Act: Tort Claims Act: Liability. Where policy judgment exists, there also exists discretion exempted from liability under the discretionary function exemption.
7. Political Subdivisions Tort Claims Act: Tort Claims Act: Liability. The discretionary function or duty exemption extends only to the basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions.
8. Political Subdivisions Tort Claims Act: Tort Claims Act: Negligence: Liability. The State or political subdivision is liable for negligence of its employees at the operational level, where there is no room for policy judgment.
9. Political Subdivisions Tort Claims Act: Tort Claims Act: Liability. It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exemption applies in a given case.
10. Political Subdivisions Tort Claims Act: Tort Claims Act: Public Officers and Employees: Words and Phrases. Where a health officer must make a judgmental decision within a regulatory framework, the decision is not a ministerial act but a discretionary function.
James S. Jansen, Douglas County Atty., and Michael W. Amdor, Omaha, for appellant.
William J. Elder and Michael McCormack of McCormack, Cooney, Mooney, Hillman & Elder, Omaha, for appellee.
Vard R. Johnson and Robert W. Kortus of Broom, Johnson, Fahey & Clarkson, Omaha, for amicus curiae Nebraska Ass'n of County Officials.
J. Patrick Green and E. Terry Sibbernsen, Omaha, for amicus curiae Amicus Curiae Committee of the Nebraska Ass'n of Trial Attys.
The minor appellee, Sean Thomas Jasa, by and through his parents (father Stephen Scott Jasa and mother Ivy Jo Jasa) acting as his next friends, brought this action under the provisions of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1991), against the appellant, Douglas County, alleging that through the failure of its department of health to take appropriate steps with respect to the presence of bacterial meningitis, an infectious disease, in the population of West Omaha Day Care and Nursery School, Inc., a day-care facility, the county negligently caused said minor to suffer permanent and catastrophic disability. The district court entered judgment against the county. In challenging the judgment, the county assigns a number of errors, including that the district court incorrectly determined that liability is not foreclosed by the discretionary function exemption of the act. The record sustaining that assignment, we, without reaching the other claimed errors, reverse the judgment and remand the cause with the direction that it be dismissed.
The essence of the minor's claim is that the county department was negligent in its admitted failure to determine that there had been a case of bacterial meningitis at West Omaha Day Care and its failure to inform his parents of the presence of the disease at that facility.
While § 13-908 makes a political subdivision such as the county liable for an action in tort "in the same manner and to the same extent as a private individual under like circumstances," § 13-910(2) exempts a political subdivision from liability on any 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 be abused." Thus, the performance or nonperformance of a discretionary function cannot be the basis of liability under the act. Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80 (1993).
We have held that whether the undisputed facts demonstrate that liability is precluded by the discretionary function exemption of the Political Subdivisions Tort Claims Act is a question of law. See id. See, also, Blitzkie v. State, 241 Neb. 759, 491 N.W.2d 42 (1992). Regarding a question of law, an appellate court has an obligation to reach a correct conclusion independent of that reached by the court below. Transamerica Commercial Fin. Corp. v. Rochford, 244 Neb. 802, 509 N.W.2d 214 (1993); Metropolitan Life Ins. Co. v. Kissinger Farms, 244 Neb. 620, 508 N.W.2d 568 (1993); Lemke, supra.
According to Dr. David J. Itkin, a physician who specializes in infectious diseases, the minor's condition results from his having contracted bacterial meningitis as the consequence of his exposure to Haemophilus influenzae type b, a bacterium which can cause a variety of different diseases and is generally spread by respiratory secretions and other close contact with infected persons. The Haemophilus organism causes disease in children who have not developed their own immunity; thus, children between 3 to 6 months and 3 to 4 years of age are at the greatest risk of infection and subject to the greatest damage from the disease.
Itkin ranks Haemophilus as the most dangerous infectious organism among children 3 years of age and under in terms of communicability and the effect of the disease upon those infected.
A then 3-year-old girl enrolled at West Omaha Day Care, who last attended the facility on Friday, October 23, 1987, became ill with flu-like symptoms on Sunday, October 25, 1987. On Tuesday morning, October 27, the girl was examined in her pediatrician's office. Due to the girl's imbalance and weakness, her mother, a registered nurse, was concerned about the potential of a "massive ear infection or meningitis." However, the girl's mother said that at that time "we ruled out meningitis."
On Wednesday, October 28, the girl was again taken to her pediatrician's office. While being examined, she began to suffer rigidity in her neck; the pediatrician who examined her believed she probably had meningitis and sent her to a hospital.
Being familiar with the dangers of meningitis, the girl's mother was concerned about the children with whom the girl had had contact. Accordingly, the girl's mother called West Omaha Day Care on the 28th and informed the director that the girl was ill and was probably suffering from meningitis. The girl's mother testified that she called the director so that the director "could alert the other parents."
The next morning, the director called the girl's mother and inquired specifically whether the girl had viral or bacterial meningitis. The girl's mother told the director that was not yet known. Either later that same day or the next day, the director called the girl's mother a second time to determine how the girl was doing and to inquire about visiting.
According to Lewis William White, the president of the corporation which owned and operated West Omaha Day Care, the director contacted the girl's mother and "asked her when she found out or heard anything more to please let us know." When the girl's mother did not call back in the next couple of days, White asked the staff to call her again. According to White, the girl's father was reached by a staff member at the hospital on Friday, October 30. He said meningitis was still suspected but that the tests were not yet conclusive. The staff then asked the father to let them "know as soon as possible," but received no further notification of the girl's condition. The girl's father, however, denies receiving the call White described.
The county department had informed day-care facilities of the vaccines obtainable from various sources and made available a Haemophilus factsheet to be sent to parents. The county department also provided day-care facility operators with an informational packet prepared by the Centers for Disease Control of the U.S. Public Health Service entitled "What You Should Know About Contagious Diseases in the Day Care Setting." It informs day-care facility operators how to respond to bacterial meningitis as follows:
What to Do
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