Williams v. City of Lincoln

27 Neb.App. 414

932 N.W.2d 490

Kathy Girard WILLIAMS, Ph.D., and Michael Williams, appellants,

v.CITY OF LINCOLN, Nebraska, appellee.

No. A-18-680

Court of Appeals of Nebraska.

Filed July 23, 2019.

Jerry W. Katskee and Thomas C. Dorwart, of Govier, Katskee, Suing & Maxell, P.C., L.L.O., Omaha, for appellants.

Jeffery R. Kirkpatrick, Lincoln City Attorney, Elizabeth D. Elliott, and Margaret M. Blatchford for appellee.

Riedmann, Arterburn, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Kathy Girard Williams and Michael Williams appeal the order of the district court for Lancaster County which entered summary judgment in favor of the City of Lincoln, Nebraska (the City), based on the court’s determination that the Williamses’ claims against the City were barred by sovereign immunity. We affirm.

BACKGROUND

On September 13, 2015, the Williamses were riding their bicycles on a sidewalk owned by the City. Shortly past an intersection, a row of pear trees lined the median between the sidewalk and the street. Michael was riding in front of Kathy, and the pair rode past the first three trees without incident. The branches of the fourth tree, however, extended over the sidewalk. Michael was approximately 20 to 30 feet away when he noticed the overgrown tree. Michael yelled back to warn Kathy of the tree up ahead and successfully veered to the side and around the tree, but Kathy, who was riding approximately 5 to 10 feet behind Michael, collided with the low-hanging branches of the tree, was knocked off her bicycle, and sustained serious injuries.

The Williamses filed a tort claim with the City pursuant to the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012), seeking damages in the amount of $1 million. The City rejected the claim. The Williamses then filed a complaint in the district court. The complaint alleged that Kathy’s injuries were the result of the City’s negligent failure to properly prune and maintain the tree with which Kathy collided.

The City filed an answer, which asserted, among other things, that it was immune from suit due to sovereign immunity. The City subsequently filed a motion for summary judgment.

The evidence received at the hearing on the motion for summary judgment establishes that there are 81,785 "street trees" under the care of the City’s parks and recreation department and another 30,505 trees located in the City’s parks. The tree at issue here is considered one of the "street trees."

The City’s municipal code requires that the City maintain "street trees." See Lincoln Mun. Code § 12.20.030 (2003). The city charter provides that the city council shall have the power to provide for the removal or trimming of trees located along the streets or public ways, including the sidewalk space, and to trim the branches of trees overhanging them. In response to these requirements, the City’s parks and recreation department created the community forestry division, which is responsible for the care and management of all public trees, including planting, tree inspections, maintenance, and removal.

Due to limited resources and budget constraints, the City established a plan for prioritizing maintenance of trees on a complaint basis, giving priority to any tree with identified defects that could result in damage to property or personal injury and then providing regular maintenance on the City’s other trees. There is no specific requirement as to how often a tree must be inspected or trimmed.

The City never received a complaint or service request regarding the tree at issue here. It was clear that the three trees adjacent to the tree with which Kathy collided had been trimmed, but according to an affidavit of the director of the City’s parks and recreation department, the City had not trimmed them on or before the date of the accident, and it is unknown who did so.

The Williamses offered into evidence the deposition of their expert witness, Melanie Short. Short is an architect, not an arborist. She opined that the low-hanging branches on the subject tree violate the standard of care for safe sidewalks and bikeways and that the City failed to reasonably maintain the trees along the sidewalk, which created a dangerous condition that caused Kathy’s fall and injuries. In order to establish the applicable standard of care, Short looked at the Lincoln Municipal Code and the 2009 International Building Code, which she admitted is not applicable here, but gives a "secondary understanding" of clearances and head heights. She also used "some best practices both from the Federal Highway Administration, as well as ASTM," which she said is a standards organization for "different types of issues and industries." The standard of care Short relied upon in forming her opinion was based on the standard of care in architecture, but she did not know if arborists follow the same standard.

Short explained that the recommended clearance for a tree branch above a sidewalk is 8 or 9 feet, depending upon who is making the recommendation. The City’s community forestry division indicates that the recommended minimum clearance for a tree branch over a sidewalk is 9 feet. A clearance of 40 inches in width is also recommended. Short admitted, however, that these numbers are recommendations and not requirements. According to Short, the sidewalk where the Williamses were riding their bicycles is 5 feet wide, and she estimated that the subject tree branches extended at least 3 feet over the sidewalk and were only 3 feet above the ground.

The trees lining the sidewalk where the accident occurred are "Chanticleer flowering pear" trees. The subject tree and three adjacent trees were planted prior to 2007, and Short did not know the growth rate for the subject tree or how many inches per year it grew, acknowledging that trees grow at different rates and that their growth can be affected by the weather and environment. She also admitted that she could not say for how many years the tree’s branches had been extending over the sidewalk. Short explained that when the three adjacent trees were trimmed, this tree’s condition would have been apparent, and it could have been trimmed at the same time.

In its order on summary judgment, the district court determined that the discretionary function exception to the PSTCA applies and that the City did not have a nondiscretionary duty to warn or take measures to prevent injury. Therefore, the district court found that the Williamses’ claims against the City were barred by sovereign immunity and granted the City’s motion for summary judgment. The Williamses appeal.

ASSIGNMENTS OF ERROR

The Williamses assign that the district court erred in (1) failing to recuse itself from the proceedings, (2) finding that their claim fell within the exceptions to the PSTCA and that the claims are barred by sovereign immunity, (3) finding that the City did not have a nondiscretionary duty and did not have notice of the low-hanging tree branches, and (4) granting the City’s motion for summary judgment and finding that there was no genuine issue of material fact.

STANDARD OF REVIEW

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. Tierney v. Four H Land Co. , 281 Neb. 658, 798 N.W.2d 586 (2011).

Questions of law and statutory interpretation require an appellate court to reach a conclusion independent of the decision made by the court below. Kimminau v. City of Hastings , 291 Neb. 133, 864 N.W.2d 399 (2015).

Whether the allegations made by a plaintiff present a claim that is precluded by exemptions set forth in the PSTCA is a question of law. Kimminau v. City of Hastings, supra . An appellate court has an obligation to reach its conclusion on whether a claim is precluded by exemptions set forth in the PSTCA independent from the conclusion reached by the trial court. Kimminau v. City of Hastings, supra .

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. Id. 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. Id .

ANALYSIS

Judicial Bias.

The Williamses argue that the judge presiding over this proceeding should have recused herself because she is employed by Lancaster County, the county in which the City is located, and is a taxpayer of the City; they claim that she was therefore inherently biased in favor of the City. We conclude that this issue has not been preserved for appeal.

Under the Nebraska Revised Code of Judicial Conduct, a judge must recuse himself or herself from a case if the judge’s impartiality might reasonably be questioned. State v. Buttercase , 296 Neb. 304, 893 N.W.2d 430 (2017). Under the code, such instances in which the judge’s impartiality might reasonably be questioned specifically include where the judge has a personal bias or prejudice concerning a party or a party’s lawyer. State v. Buttercase, supra . A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. Id .

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. Blaser v. County of Madison , 285 Neb. 290, 826 N.W.2d 554 (2013). Under these facts, once a case has been litigated, an appellate court will not disqualify a judge and give litigants " ‘ "a second bite at the apple." ’ " Id . at 299, 826 N.W.2d at 562.

The rule that...