Kimminau v. City of Neb.
| Decision Date | 19 June 2015 |
| Docket Number | No. S–14–413.,S–14–413. |
| Parties | Kaelynn Kimminau and Wayne Kimminau, wife and husband, appellants, v. City of Hastings, a Nebraska political subdivision, et al., appellees. |
| Court | Nebraska Supreme Court |
Douglas G. Pauley and Scott D. Pauley, of Conway, Pauley & Johnson, P.C., Hastings, and Jefferson Downing, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., Lincoln, for appellants.
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., Lincoln, for appellees R Lazy K Trucking, Inc., and Wayne Todd.
Gail S. Perry and Robert B. Seybert, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee City of Hastings.
Vincent Valentino and Brandy Johnson, Lincoln, for appellee County of Adams.
Stephen G. Olson, Robert S. Keith, and Kristina J. Kamler, of Engles, Ketcham, Olson & Keith, P.C., Omaha, for appellee Hastings Rural Fire District.
1. Judgments: Statutes: Appeal and Error.Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the decision made by the court below.
2. 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.
3. 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.
4. 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.
5. Summary Judgment: Appeal and Error.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.
6. Summary Judgment: Appeal and Error.When cross-motions for summary judgment have been ruled upon by the district court, the appellate court may determine the controversy that is the subject of those motions or may make an order specifying the facts that appear without substantial controversy and direct such further proceedings as it deems just.
7. Political Subdivisions Tort Claims Act: Immunity: Waiver.The Political Subdivisions Tort Claims Act provides limited waivers of sovereign immunity which are subject to statutory exceptions.
8. Political Subdivisions Tort Claims Act: Tort Claims Act.Where language in the Political Subdivisions Tort Claims Act is similar to language in the State Tort Claims Act, cases construing one statute are applicable to construction of the other.
9. Political Subdivisions Tort Claims Act: Tort Claims Act.The purpose of the discretionary function exception of the Political Subdivisions Tort Claims Act or the State 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.
10. Political Subdivisions Tort Claims Act: Tort Claims Act.The discretionary function exception of the Political Subdivisions Tort Claims Act or the State Tort Claims Act extends only to basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions. The exception does not extend to the exercise of discretionary acts at an operational level.
11. Political Subdivisions Tort Claims Act: 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 or the State Tort Claims Act applies. First, the court must consider whether the action is a matter of choice for the acting employee. 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.
12. Negligence: Damages: Proximate Cause.In order to prevail in a negligence action, a plaintiff must establish the defendant's duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused.
13. Negligence.The threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty.
14. Negligence: Words and Phrases.A “duty” is an obligation, to which the law gives recognition and effect, to conform to a particular standard of conduct toward another. If there is no duty owed, there can be no negligence.
15. Negligence.The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.
16. 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.
17. Negligence: Liability: Public Policy.An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. But, in exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that a defendant has no duty or that the ordinary duty of reasonable care requires modification.
18. Judgments: Negligence: Liability: Public Policy.A no-duty determination is grounded in public policy and based upon legislative facts, not adjudicative facts arising out of the particular circumstances of the case. And such ruling should be explained and justified based on articulated policies or principles that justify exempting these actors from liability or modifying the ordinary duty of reasonable care.
Kaelynn Kimminau and her husband, Wayne Kimminau, brought this action seeking damages for personal injuries
Kaelynn suffered as the result of a motor vehicle accident in rural Adams County, Nebraska, in November 2009. They alleged that Kaelynn lost control of her vehicle due to corn mash which had spilled from a truck onto the highway the previous day. The action was brought against Wayne Todd, the driver of the truck, and R Lazy K Trucking, Inc. (R Lazy K), Todd's employer. Also named as defendants, pursuant to the Political Subdivisions Tort Claims Act (PSTCA),1 were the City of Hastings, Hastings Rural Fire District (Hastings Rural), and the County of Adams. The district court for Adams County entered summary judgment in favor of all named defendants.
The Kimminaus perfected this timely appeal, and we granted a petition to bypass. We reverse the judgment of the district court in favor of the political subdivisions and affirm the judgment in favor of Todd and R Lazy K.
The following facts are uncontroverted: The City of Hastings, Adams County, and Hastings Rural are political subdivisions as defined by Nebraska law. Pursuant to an emergency service agreement, the Hastings Fire Department (Hastings Fire) and Hastings Rural keep fire equipment in facilities owned by Hastings Fire. Hastings Fire will also respond to emergency calls with Hastings Rural within the latter's response district, which generally includes those areas of Adams County not within the Hastings city limits. Hastings Rural is comprised of an all-volunteer force.
On November 15, 2009, Nebraska State Trooper Monte Dart was completing a traffic stop on South Showboat Boulevard in rural Adams County when he observed wet corn mash spilling onto the roadway from a truck owned by R Lazy K and operated by Todd. The corn mash, which has the consistency
of tapioca pudding and is sometimes referred to as “wet cake” or “wet distiller's grain,” is a byproduct of ethanol production that is fed to cattle.
Dart closed the southbound lane of the roadway and requested assistance. South Showboat Boulevard is a two-lane paved roadway with solid white lines delineating the edge of each lane. It has an unpaved shoulder, approximately 5 to 8 feet wide, leading to a ditch on either side of the roadway.
Hastings Fire and Hastings Rural responded to the scene of the spill at approximately 12:20 p.m. They moved the spilled corn mash from the traveled portion of the roadway onto the unpaved shoulder and into the ditch, utilizing shovels, brooms, and firehoses. Neither Todd nor R Lazy K were requested to assist with the cleanup of the spill, and neither did so.
These events were visually and audibly recorded by a front dash-mounted camera in Dart's patrol vehicle. On the recording, corn mash is visible on the shoulder of the roadway just past the white line at the edge of the southbound lane of the roadway after the cleanup was completed. When the cleanup was concluded, Dart issued a traffic citation to Todd, inspected the roadway, and then reopened it to vehicular traffic, because he thought it was safe to do so. Later that evening, the Adams County highway superintendent and a volunteer captain with Hastings Rural separately drove past the site of the corn mash spill and observed that the paved road surface was clear of any corn mash debris.
On the following day, November 16, 2009, at approximately 1:20 p.m., Kaelynn was driving southbound on South Showboat Boulevard. At the site of the corn mash spill, she lost control of her vehicle. The vehicle swerved on the roadway and eventually came to rest against a utility pole in the ditch. A photograph of the accident scene shows corn mash on the surface of the southbound lane of South Showboat Boulevard, north of where Kaelynn's vehicle came to rest. Kaelynn was not aware of corn mash on the roadway until her
vehicle came in...
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