Dresser v. Thayer County

R ebecca L. DResseR anD KRista a. RosencRans ,
appeLLants , v. thayeR county, nebRasKa ,
anD state of nebRasKa , appeLLees.
774 N.W.2d 640
Filed October 6, 2009. 	No. A-09-068.
This opinion has been ordered permanently published by order
of the Court of Appeals dated October 23, 2009.
1. Political Subdivisions Tort Claims Act: Liability. No political subdivision
of the State of Nebraska shall be liable for the torts of its officers, agents, or
employees, and no suit shall be maintained against such political subdivision or
its officers, agents, or employees on any tort claim except to the extent, and only
to the extent, provided by the Political Subdivisions Tort Claims Act.
2. Political Subdivisions: Legislature: Intent. The Nebraska Legislature intended
political subdivisions to have discretion in the installation of traffic con-
trol devices.
3. Political Subdivisions Tort Claims Act: Liability. The installation of traffic
control devices involves balancing the competing needs of pedestrian safety, engi-
neering concerns, commerce, and traffic flow with limited financial resources.
These decisions are normally the type of economic, political, and social policy
judgments that the discretionary function exception of the Political Subdivisions
Tort Claims Act was designed to shield.
4. Tort Claims Act: Liability. The State of Nebraska shall not be liable for the torts
of its officers, agents, or employees, and no suit shall be maintained against the
State, any state agency, or any employee of the state on any tort claim, except to
the extent provided by the State Tort Claims Act.
Appeal from the District Court for Thayer County: vicKy L.
Johnson, Judge. Affirmed.
Corey L. Stull and Derek A. Aldridge, of Perry, Guthery,
Haase & Gessford, P.C., L.L.O., for appellants.
Charles W. Campbell, of Angle, Murphy & Campbell, P.C.,
L.L.O., for appellee Thayer County.
Jon Bruning, Attorney General, and Douglas L. Kluender for
appellee State of Nebraska.
inboDy, Chief Judge, and iRwin and MooRe, Judges.
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Cite as 18 Neb. App. 99
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

iRwin, Judge.
I. INTrODuCTION
rebecca L. Dresser and Krista A. rosencrans (collectively
Appellants) appeal an order of the district court for Thayer
County, Nebraska, granting summary judgment in favor of
defendants, Thayer County and the State of Nebraska, in this
negligence action brought seeking compensation for injuries
sustained when rosencrans was injured in a collision between
a train and a motor vehicle in which rosencrans was a pas-
senger. The district court found that both defendants enjoyed
immunity from the allegations of Appellants and also that the
sole proximate cause of rosencrans’ injuries was the negli-
gence of the driver of the motor vehicle. We affirm.
II. BACKGrOuND
The accident giving rise to this lawsuit occurred in March
2005. On that date, rosencrans was a passenger in a vehicle
being driven by her friend, Chandra McDonald. It was a clear,
sunny day, and the road surface was dry. McDonald approached
an intersection where train tracks crossed a county road,
approached a stop sign before the tracks, and then proceeded
through the intersection. rosencrans observed an approaching
train and screamed at McDonald, and McDonald shifted her
vehicle into reverse but was unable to move the vehicle off the
tracks before the train collided with the vehicle. rosencrans
suffered serious injuries as a result of the accident.
On November 29, 2006, and September 24, 2007, Appellants
filed separate complaints against each defendant. Appellants
made similar allegations of negligence against defendants,
including that they each were negligent in the maintenance of
the railroad crossing. On February 19, 2008, the district court
entered an order consolidating the two cases, by stipulation of
the parties. In March 2008, both defendants moved for sum-
mary judgment.
The district court conducted hearings on the motions for
summary judgment in April and May 2008. On September 30,
the court entered an order granting summary judgment to both
defendants. The court found that there were no genuine issues
of material fact. The court found that the doctrine of sovereign
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immunity applied and that the actions of both defendants were
discretionary actions for which suit could not be maintained.
The court also found that the sole proximate cause of the acci-
dent was McDonald’s failure to stop, perceive, and yield to an
oncoming train that was visible on a clear, sunny day. For those
reasons, the court granted the motions for summary judgment.
Appellants brought this appeal.
III. ASSIGNMeNTS OF errOr
Appellants have assigned as error that the court erred in
finding that defendants were immune from suit, in finding that
the sole proximate cause of the accident was the negligence of
McDonald, and in granting summary judgment to defendants.
IV. ANALySIS
1. stanDaRD of R eview
Summary judgment is proper if the pleadings and admissible
evidence offered at the hearing show that there is no genuine
issue as to any material facts 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. Harvey v. Nebraska
Life & Health Ins. Guar. Assn., 277 Neb. 757, 765 N.W.2d 206
(2009). In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, giving that party the
benefit of all reasonable inferences deducible from the evi-
dence. Id.
2. iMMunity
Appellants first assert that the district court erred in find-
ing that defendants were immune from suit. We conclude that
the responsibilities of both defendants with regard to mainte-
nance of railroad crossing devices involves discretionary func-
tions, and thus, we find no merit to Appellants’ assertions to
the contrary.
(a) Discretionary Function of County
[1] Neb. rev. Stat. § 13-902 (reissue 2007) provides that
no political subdivision of the State of Nebraska shall be liable
for the torts of its officers, agents, or employees and that no
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suit shall be maintained against such political subdivision or
its officers, agents, or employees on any tort claim except to
the extent, and only to the extent, provided by the Political
Subdivisions Tort Claims Act. Neb. rev. Stat. § 13-908 (reissue
2007) provides a general waiver of immunity for political sub-
divisions, subject to the limitations of Neb. rev. Stat. § 13-910
(Cum. Supp. 2004). Section 13-910(2) provides an exception
to political subdivision liability for 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 sub-
division or an employee of the political subdivision, whether or
not the discretion be abused.
[2] Neb. rev. Stat. § 60-6,121 (reissue 2004) indicates
that the Nebraska Legislature intended political subdivisions
to have discretion in the installation of traffic control devices.
That section specifically provides that local authorities shall
place and maintain such traffic control devices upon highways
under their jurisdiction as they deem necessary to carry out the
provisions of the Nebraska rules of the road or to regulate,
warn, or guide traffic. See McCormick v. City of Norfolk, 263
Neb. 693, 641 N.W.2d 638 (2002). See, also, Allen v. County
of Lancaster, 218 Neb. 163, 352 N.W.2d 883 (1984) (holding
that when official must make judgmental decision within regu-
latory framework, acts are discretionary). Further, Neb. rev.
Stat. §§ 74-1337 and 74-1338 (reissue 2003) provide that the
county and the railroad may agree upon changes to railroad
crossings, may agree upon relocation of the highway, and may
file an application with the Department of roads to determine
whether changes should be made.
[3] The installation of traffic control devices involves bal-
ancing the competing needs of pedestrian safety, engineering
concerns, commerce, and traffic flow with limited financial
resources. McCormick v. City of Norfolk, supra. These deci-
sions are normally the type of economic, political, and social
policy judgments that the discretionary function exception
was designed to shield. Id. The Nebraska Supreme Court has
recognized that the result of applying the sovereign immunity
doctrine is that some tort claims against governmental agen-
cies may go unremedied. Id. Nonetheless, every intersection
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has some inherent danger and there are, potentially, unlimited
theories of recovery that could be raised against govern-
mental entities concerning the installation of traffic control
devices, and the provisions of § 13-910 signify that this is
the type of public policy decision the Legislature intended
to preclude courts from reviewing. See McCormick v. City of
Norfolk, supra.
To the extent the County bears responsibility for the installa-
tion and maintenance of the railroad crossing at issue, its func-
tions are discretionary functions to which sovereign immunity
applies. The district court did not err in so finding, and we find
no merit to Appellants’ assertions to the contrary.
(b) Discretionary Function of State
[4] Neb. rev. Stat. § 81-8,209 (reissue 2008) provides that
the State shall not be liable for the torts of its officers, agents,
or employees, and no suit shall be maintained against the State,
any state agency, or any employee of the state on any tort
claim, except to the extent provided by the State Tort Claims
Act. Neb. rev. Stat. § 81-8,215 (reissue 2008) provides a
general waiver of immunity for the State, subject to the limita-
tions of Neb. rev. Stat. § 81-8,219 (Cum. Supp. 2004). Section
81-8,219(1) provides an exception to state tort liability for any
claim based upon an act or omission of an employee of the
state or based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on the
part of a state agency or an employee of the state, whether or
not the discretion is abused.
Neb. rev. Stat. § 74-1332 (reissue 2003) provides that the
Department of roads has jurisdiction over all railroad cross-
ings outside of incorporated villages, towns, and cities, both
public and private, across, over, or under all railroads in the
state, with some exceptions not relevant to the present case,
and shall adopt and promulgate such rules and regulations for
the construction, repair, and maintenance of the crossings as
the Department of Roads deems adequate and sufficient for the
protection and necessity of the public.
To the extent the State is given responsibility for install-
ing and maintaining railroad crossings, the relevant statutory
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provision makes it a discretionary function to determine what is
adequate and sufficient. As noted above, the Nebraska Supreme
Court has recognized that sovereign immunity cases may result
in some claims going unremedied, but the balancing of vari-
ous competing needs necessary for traffic control installation
and maintenance is precisely the kind of discretionary function
to which sovereign immunity traditionally applies. We find
no error by the district court in its conclusion that the State
is immune from Appellants’ claims, and we find no merit to
Appellants’ claims to the contrary.
3. pRoxiMate cause
In light of our conclusion that the district court did not com-
mit error in finding that defendants are immune from the claims
brought by Appellants, we need not further address Appellants’
assignment of error that the court erred in finding that the sole
proximate cause of the accident was McDonald’s failure to
observe the oncoming train and take appropriate action.
V. CONCLuSION
The district court committed no error in finding that defend-
ants are immune from the claims brought by Appellants. As
such, we affirm.
affiRMeD.
state of nebRasKa , appeLLee , v.
Roy RoDRiguez , appeLLant.
774 N.W.2d 775
Filed November 3, 2009. 	No. A-09-314.
1. Rules of Evidence: Appeal and Error. Where the Nebraska evidence rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
2. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
3. Drunk Driving: Blood, Breath, and Urine Tests: Proof. There are four foun-
dational elements the State must establish for admissibility of a breath test in a
104 	18 NeBrASKA APPeLLATe rePOrTS