Shipley v. Dep't of Roads

283 Neb. 832

813 N.W.2d 455

Brian SHIPLEY, appellant,

v.DEPARTMENT OF ROADS, an agency of the State of Nebraska, and Cass County, Nebraska, a political subdivision of the State of Nebraska, appellees.

Kenneth E. Stoddard and Sondra K. Stoddard, Guardians of Jamin L. Stoddard, an incapacitated person, appellants,

and

Nebraska Department of Health and Human Services, an agency of the State of Nebraska, appellee,

v.

Department of Roads, an agency of the State of Nebraska, and Cass County, Nebraska, a political subdivision of the State of Nebraska, appellees.

Nos. S–11–293, S–11–294.

Supreme Court of Nebraska.

May 11, 2012.

Syllabus by the Court

[283 Neb. 832]1. 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.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the 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.

3. Administrative Law: Judgments. Interpretation of the Manual on Uniform Traffic Control Devices presents a question of law.

4. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

[283 Neb. 833]5. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity: Waiver. Both the Political Subdivisions Tort Claims Act and the State Tort Claims Act provide limited waivers of sovereign immunity, which are subject to statutory exceptions.

6. Political Subdivisions Tort Claims Act: Tort Claims Act. The discretionary function exception is expressed in nearly identical language in the State Tort Claims Act, see Neb.Rev.Stat. § 81–8,219(1) (Supp.2007), and the Political Subdivisions Tort Claims Act; thus, cases construing the state exception apply as well to the exception granted to political subdivisions by Neb.Rev.Stat. § 13–910(2) (Supp.2007).

7. 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.

8. 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.

9. 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.

10. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment.

James R. Welsh and Christopher Welsh, of Welsh & Welsh, P.C., Omaha, L.L.O., for appellants.

Jon Bruning, Attorney General, and Douglas L. Kluender, Omaha, for appellee State.

Charles W. Campbell, of Angle, Murphy & Campbell, P.C., L.L.O., York, for appellee Cass County.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

STEPHAN, J.

On June 5, 2005, Jamin L. Stoddard and Brian Shipley were injured in a collision with a train owned by the Burlington Northern Santa Fe Railway Company (BNSF) at a grade crossing in Cass County, Nebraska. Stoddard's guardians and Shipley brought actions against the Nebraska Department of Roads (NDOR) and Cass County (County) under the State Tort Claims Act (STCA) ¹ and the Political Subdivisions Tort Claims Act (PSTCA),² alleging that the governmental entities negligently designed the grade crossing and negligently failed to install various warning devices. The district court for Cass County entered summary judgment in favor of the State and the County. Stoddard's guardians and Shipley appeal from that judgment. The principal issue is whether the negligence claims fall within the discretionary function exceptions to the limited waiver of sovereign immunity under the PSTCA and the STCA.

I. BACKGROUND

1. Accident

The accident occurred at a grade crossing on Beach Road, which is located in Cass County, Nebraska, approximately 2 miles north and one-half mile west of the city of Plattsmouth. Beach Road is a two-lane road that runs in a north-south direction. Two BNSF railroad tracks running generally in an east-west direction intersect with Beach Road at the grade crossing. On the date of the accident, the County owned and controlled the right-of-way included within Beach Road and BNSF owned, controlled, and maintained the crossing.

In 2004, Shipley moved to a house north of Plattsmouth on Colt Drive. Colt Drive runs in an east-west direction parallel to the railroad tracks. Shipley's home was just north and approximately one block west of the crossing. In order to travel from Shipley's home to Plattsmouth, one would proceed east on Colt Drive to Beach Road, then south through the grade crossing to U.S. Highway 75.

Stoddard, who is Shipley's uncle, resided in Plattsmouth for most of his life, including at the time of the accident. Stoddard and Shipley were close and spent time together every day before June 5, 2005. When they went places together, it was normal practice for Stoddard to drive and to use Beach Road to access Shipley's home. According to Shipley, when Stoddard's vehicle would approach the crossing, Stoddard typically stopped about 5 feet from the tracks, looked both ways, and then proceeded through the crossing. If a train was approaching, Stoddard would usually stop and wait for the train to clear the crossing.

On June 5, 2005, Stoddard, Shipley, and another passenger were returning to Shipley's home after attending church in Bellevue, Nebraska. As the vehicle operated by Stoddard proceeded north on Beach Road, a westbound train was approaching the crossing. Shipley, who was in the rear seat on the passenger side of the vehicle, does not recall seeing the train involved in the collision.

As it approached the crossing, the train was traveling at a speed of 40 miles per hour and sounding its whistle. An eyewitness observed Stoddard's vehicle proceed at a constant speed toward the crossing. But the train's engineer and conductor both testified that Stoddard first applied the brakes and then accelerated in an attempt to “beat the train.”

Stoddard's vehicle and the train collided on the north set of tracks. At the time of the accident, the sky was clear and sunny, and the road was dry. Stoddard and Shipley were severely injured in the collision, and the other passenger was killed.

2. Truck Wash Facility

In September 2003, the County issued a permit for the construction of a truck wash facility in the southeast quadrant of the Beach Road crossing. When completed, the north edge of the facility was approximately56 feet south of the south rail of the crossing.

In the opinion of several experts, the truck wash facility caused the crossing to be severely sight restricted for motorists proceeding north on Beach Road. Experts opined that the crossing did not comply with the minimum sight distances set out by title 415 of the Nebraska Administrative Code. Title 415 required all new highway-rail grade crossings to meet certain sight distance requirements.

Experts also found that the crossing did not comply with the American Association of Highway and Transportation Officials' “A Policy on Geometric Design of Highways and Streets” (AASHTO Green Book) sight distance table. Experts acknowledged that the AASHTO Green Book contained industry standards and did not constitute a mandatory legal authority. Title 428 of the Nebraska Administrative Code, which the County highway superintendent regarded as a mandatory standard, includes minimum design standards for certain rural state highways and notes that the AASHTO Green Book “should be used for other design criteria.” ³

3. Paving Beach Road

In March 2004, the manager of the truck wash facility asked the County to pave a portion of Beach Road that included the segment just south of the crossing. The facility offered to pay 50 percent of the cost. The project was proposed to and accepted by the County's board of commissioners on May 4, 2004. Although the former County highway superintendent was unsure about precisely when the paving project was completed, the current highway superintendent stated that it was completed before the facility paid its 50–percent share with a check dated May 14, 2004.

4. Warning Signals Present at Crossing

At the time of the accident, there were no automatic traffic control devices in place at the Beach Road crossing. There was an advance warning sign, installed and maintained by the County, approximately 400 feet south of the crossing. There was also a crossbuck warning sign installed and maintained by BNSF on the east side of Beach Road, approximately 15 feet south of the south rail of the crossing. There was no placard on the crossbuck indicating the presence of two sets of tracks, and there was no crossbuck on the west...