Shipley v. Department of Roads

CONCLUSION
For the reasons discussed, we conclude that the district court
did not err in ordering H.M. to testify and in exercising its con-
tempt power to enforce its order. We observe that the fact that
the State may compel H.M. to testify does not necessarily mean
that it should. But that question must be left to the judgment
and discretion of the prosecutor.
A ffirmed.
Wright, J., not participating.
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.
813 N.W.2d 455
Filed May 11, 2012. 	Nos. S-11-293, S-11-294.
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.
832 	283 NeBraSka repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

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. ____: ____. 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. ____: ____. The discretionary function exception of the political Subdivisions
Tort Claims act or the State Tort Claims act extends only to basic policy deci-
sions made in governmental activity, and not to ministerial activities implement-
ing such policy decisions. The exception does not extend to the exercise of
discretionary acts at an operational level.
9. ____: ____. 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 sum-
mary judgment.
appeals from the District Court for Cass County: rAndAll
l. rehmeier, Judge. affirmed.
James r. Welsh and Christopher Welsh, of Welsh & Welsh,
p.C., L.L.O., for appellants.
Jon Bruning, attorney General, and Douglas L. kluender for
appellee State.
Charles W. Campbell, of angle, Murphy & Campbell, p.C.,
L.L.O., for appellee Cass County.
heAvicAn, c.J., Wright, connolly, StephAn, mccormAck ,
and miller-lermAn, JJ.
SHIpLey v. DeparTMeNT OF rOaDS 	833
Cite as 283 Neb. 832

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 approxi-
mately 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.
1 Neb. rev. Stat. §§ 81-8,209 to 81-8,235 (reissue 2003 & Supp. 2007).
2 Neb. rev. Stat. §§ 13-901 to 13-927 (reissue 2007).
834 	283 NeBraSka repOrTS

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 pro-
ceeded north on Beach road, a westbound train was approach-
ing 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 conduc-
tor 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 con-
struction of a truck wash facility in the southeast quadrant of
the Beach road crossing. When completed, the north edge of
the facility was approximately 56 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 motor-
ists proceeding north on Beach road. experts opined that the
crossing did not comply with the minimum sight distances set
SHIpLey v. DeparTMeNT OF rOaDS 	835
Cite as 283 Neb. 832

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 indus-
try standards and did not constitute a mandatory legal author-
ity. Title 428 of the Nebraska administrative Code, which the
County highway superintendent regarded as a mandatory stan-
dard, 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 com-
pleted 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 traf-
fic 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
3 428 Neb. admin. Code, ch. 2, § 001.04 (2002).
836 	283 NeBraSka repOrTS

there was no crossbuck on the west side of Beach road south
of the crossing. also, there was no pavement marking on Beach
road south of the crossing to warn northbound traffic that the
crossing was ahead.
5. clAimS AgAinSt StAte
And county
as relevant to this appeal, Stoddard’s guardians and Shipley
allege that the County and the State caused the accident and
their injuries by (1) failing to install pavement markings on
Beach road to warn of the approaching crossing, (2) failing to
improve the sight restriction caused by the truck wash facility,
and (3) failing to warn northbound traffic of that sight restric-
tion. The pavement marking claim is based upon an alleged
violation of the 2000 version of the Manual on Uniform Traffic
Control Devices (Manual). The sight restriction claim is based
upon alleged violations of titles 415 and 428 of the Nebraska
administrative Code, as adopted by NDOr, and design stan-
dards set forth in the aaSHTO Green Book.
6. order grAnting
SummAry Judgment
The County and the State each filed a motion for sum-
mary judgment, arguing sovereign immunity barred the claims
against them. In its order granting the motions, the district
court determined that all claims relevant to this appeal were
barred by the discretionary function exception because the
alleged failures were discretionary by nature. The court specifi-
cally found that neither title 415 nor title 428 applied to the
issues of the case and held that the Manual was the controlling
legal standard.
The court found summary judgment was also proper on
the pavement markings claim because the absence of pave-
ment markings did not cause the accident. and the court
found that the failure to improve sight restrictions claim was
barred as a failure to inspect claim under § 13-910(3) and as a
claim based upon the issuance of a permit under § 13-910(4).
The court reasoned that had the County not issued the per-
mit, the facility would not have been constructed. The court
SHIpLey v. DeparTMeNT OF rOaDS 	837
Cite as 283 Neb. 832

denied motions to alter or amend the summary judgment order
filed by Stoddard’s guardians and Shipley, and they perfected
timely, separate appeals, which we consolidated for argument
and disposition.
II. aSSIGNMeNTS OF errOr
Stoddard’s guardians and Shipley assign, restated and sum-
marized, that the district court erred in granting summary judg-
ment on their claims regarding (1) the failure to install pave-
ment markings to warn of the existence of the crossing, (2) the
failure to improve sight restrictions, and (3) the failure to warn
motorists that the Beach road crossing was a blind crossing.
Stoddard’s guardians and Shipley also challenge the district
court’s finding that neither title 415 nor title 428 applied to
this case.
III. STaNDarD OF reVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.4 In reviewing
a summary judgment, an appellate court views the evidence in
the light most favorable to the party against whom the judg-
ment is granted and gives such party the benefit of all reason-
able inferences deducible from the evidence.5
[3,4] Interpretation of the Manual presents a question of
law.6 When reviewing questions of law, an appellate court has
an obligation to resolve the questions independently of the con-
clusion reached by the trial court.7
4 Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Brodine v.
Blue Cross Blue Shield, 272 Neb. 713, 724 N.W.2d 321 (2006).
5 Id.
6 See, Tadros v. City of Omaha, 269 Neb. 528, 694 N.W.2d 180 (2005);
Kirkwood v. State, 16 Neb. app. 459, 748 N.W.2d 83 (2008).
7 Thomas & Thomas Court Reporters v. Switzer, ante p. 19, 810 N.W.2d
677 (2012); Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487
(2012).
838 	283 NeBraSka repOrTS

IV. aNaLySIS
1. legAl frAmeWork
[5,6] Both the pSTCa and the STCa provide limited waiv-
ers of sovereign immunity,8 which are subject to statutory
exceptions.9 If a statutory exception applies, the claim is barred
by sovereign immunity.10 Here, we are concerned with what is
commonly known as the discretionary function exception. The
STCa provides that it shall not apply to
[a]ny claim based upon an act or omission of an employee
of the state, exercising due care, in the execution of a
statute, rule, or regulation, whether or not such statute,
rule, or regulation is valid, or based upon the exercise or
performance or the failure to exercise or perform a dis-
cretionary function or duty on the part of a state agency
or an employee of the state, whether or not the discretion
is abused[.]11
The pSTCa includes a similar provision,12 and we have held
that because of the similarity, cases construing the STCa
exception are equally applicable to the discretionary function
exception in the pSTCa.13
[7-9] The purpose of the discretionary function exception is
to prevent judicial “second-guessing” of legislative and admin-
istrative decisions grounded in social, economic, and political
policy through the medium of an action in tort.14 The discretion-
ary function exception extends only to basic policy decisions
made in governmental activity, and not to ministerial activities
8 See, Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010);
Geddes, supra note 4; Bojanski v. Foley, 18 Neb. app. 929, 798 N.W.2d
134 (2011).
9 Id. See §§ 13-910 and 81-8,219.
10 See, Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007);
§ 81-8,219. See, also, § 13-910.
11 § 81-8,219(1).
12 § 13-910(2).
13 Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d 605 (1998).
14 Doe v. Omaha Pub. Sch. Dist., supra note 10; Norman v. Ogallala Pub.
Sch. Dist., 259 Neb. 184, 609 N.W.2d 338 (2000).
SHIpLey v. DeparTMeNT OF rOaDS 	839
Cite as 283 Neb. 832

implementing such policy decisions. The exception does not
extend to the exercise of discretionary acts at an operational
level.15 a court engages in a two-step analysis to determine
whether the discretionary function exception of the pSTCa
or the STCa applies.16 First, the court must consider whether
the action is a matter of choice for the acting employee.17 If
the court concludes that the challenged conduct involves an
element of judgment, it must then determine whether that judg-
ment is of the kind that the discretionary function exception
was designed to shield.18 With these principles in mind, we turn
to the specific issues presented for review.
2. pAvement mArking clAim
In support of their first assignment of error, Stoddard’s
guardians and Shipley argue that the Manual required the
County to place pavement markings on Beach road to warn
northbound motorists of the crossing ahead. They contend that
the Manual imposed a legal requirement which eliminated any
element of discretion on the part of County officials. NDOr
is authorized by statute to adopt and promulgate rules and
regulations adopting and implementing the Manual.19 The
2000 edition of the Manual was in force and effect on June
5, 2005.
Two statutes refer to the use of the Manual by state and
local authorities. Neb. rev. Stat. § 60-6,120(1) (reissue 2010)
provides that “[NDOr] shall place and maintain, or provide for
such placing and maintaining, such traffic control devices, con-
forming to the [M]anual, upon all state highways as it deems
necessary to indicate and to carry out the Nebraska rules
of the road or to regulate, warn, or guide traffic.” Neb.
rev. Stat. § 60-6,121 (reissue 2010) similarly provides that
local authorities “shall place and maintain such traffic control
15 Id.
16 Doe v. Omaha Pub. Sch. Dist., supra note 10; Aguallo v. City of Scottsbluff,
267 Neb. 801, 678 N.W.2d 82 (2004).
17 Id.
18 Id.
19 Neb. rev. Stat. § 60-6,118 (reissue 2010).
840 	283 NeBraSka repOrTS

devices upon highways under their jurisdictions as they deem
necessary to indicate and to carry out the provisions of the
Nebraska rules of the road or to regulate, warn or guide traf-
fic.” Section 60-6,121 further provides that “[a]ll such traffic
control devices erected pursuant to the rules shall conform with
the [M]anual.”
In McCormick v. City of Norfolk,20 we read the phrase “as
they deem necessary” in § 60-6,121 as the Legislature’s grant
of discretion to political subdivisions in the installation of
traffic control devices. We noted that the installation of such
devices “involves balancing the competing needs of pedestrian
safety, engineering concerns, commerce, and traffic flow—
which in itself involves safety issues—with limited financial
resources. These decisions are normally the type of economic,
political, and social policy judgments that the discretionary
function exception was designed to shield.”21
But here, Stoddard’s guardians and Shipley contend that the
Manual specifically requires pavement markings on roadways
approaching a railroad crossing and that therefore, County
officials had no discretion in whether to place the markings
on Beach road. They rely on a “Standard” in the Manual,
found at paragraph 8B.16, which states in part: “Identical
markings shall be placed in each approach lane on all paved
approaches to highway-rail grade crossings where signals or
automatic gates are located, and at all other highway-rail
grade crossings where the posted or statutory highway speed
is 60 km/h (40 mph) or greater.” But this argument ignores
another standard in the Manual, found at paragraph 1a.09,
which states: “This Manual describes the application of traf-
fic control devices, but shall not be a legal requirement for
their installation.” Immediately following this standard is a
“Guidance” which states that “[t]he decision to use a particular
device at a particular location should be made on the basis of
either an engineering study or the application of engineer-
ing judgment” and, further, that while the Manual “provides
20 McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002).
21 Id. at 698, 641 N.W.2d at 642.
SHIpLey v. DeparTMeNT OF rOaDS 	841
Cite as 283 Neb. 832

Standards, Guidance, and Options for design and application
of traffic control devices, this Manual should not be consid-
ered a substitute for engineering judgment.” an expert hired
by Stoddard’s guardians and Shipley acknowledged that the
Manual contemplates the exercise of engineering judgment in
determining whether to use a particular traffic control device at
a particular location.
Our decision in Tadros v. City of Omaha22 articulates how
the Manual factors into the discretionary function exception. In
that case, we reaffirmed the principle that “placement of traffic
control devices is a discretionary function,” but we stated that
once a decision to utilize a particular device had been made,
the device was “required to conform with the [M]anual.”23
Here, if the County had decided to place pavement markings
on Beach road to warn of the crossing, it would have been
required to do so in the manner prescribed by the Manual.
But the decision of whether to utilize the pavement markings
at that location required the exercise of judgment and was
therefore a discretionary function for which sovereign immu-
nity was not waived. accordingly, the district court did not err
in entering summary judgment with respect to the pavement
marking claim.
3. Sight reStriction clAim
Stoddard’s guardians and Shipley alleged that the State and
County were negligent in failing to improve sight restrictions
at the crossing. Several experts opined that the truck wash
facility caused the crossing to be severely sight restricted. This
opinion was based upon a table in title 415 of the Nebraska
administrative Code defining the proper sight distance at a
railroad crossing, as well as a similar table from the aaSHTO
Green Book. Stoddard’s guardians and Shipley contend that
these sight distance standards constitute mandatory require-
ments which preclude application of the discretionary func-
tion exception.
22 Tadros v. City of Omaha, supra note 6.
23 Id. at 540, 694 N.W.2d at 190.
842 	283 NeBraSka repOrTS

(a) Title 415
The sight restrictions in title 415 apply to “new public
highway-rail grade crossings.”24 Title 415 became effective on
December 14, 2004. The parties agree that the grade cross-
ing existed prior to that date and is not “new.” But title 415
defines “new” to include “[t]he construction of a new roadway
across an existing railroad line.”25 Thus, the applicability of the
title 415 sight restrictions to this case depends upon whether
the Beach road paving project was completed before or after
December 14, 2004. The district court determined that the
project was completed prior to May 25, 2004, and that thus,
title 415 did not apply. Stoddard’s guardians and Shipley argue
there is a genuine issue of material fact with respect to the
completion date.
In support of their motions for summary judgment, the
County and the State offered the affidavit of the County’s cur-
rent highway superintendent, who served as the assistant super-
intendent from 2004 to 2007 and was familiar with the Beach
road paving project. He stated that the truck wash facility paid
its share of the cost with a check dated May 14, 2004, and that
based upon his recollection and review of the records, the pave-
ment project was completed prior to the payment. Stoddard’s
guardians and Shipley offered the deposition of the former
highway superintendent, who testified that he could not recall
when the project was completed and could not make a “good
guess” without seeing additional records.
[10] Conclusions based upon guess, speculation, conjecture,
or a choice of possibilities do not create material issues of fact
for purposes of summary judgment.26 In Mefferd v. Sieler &
Co.,27 the existence of liability insurance coverage turned on
the issue of whether the insured had given timely notice of a
lawsuit filed against it. In support of its motion for summary
24 415 Neb. admin. Code, ch. 6, § 002.01G (2004) (emphasis supplied).
25 Id., ch. 4, § 001.18a.
26 Dresser v. Union Pacific RR. Co., 282 Neb. 537, 809 N.W.2d 713 (2011).
27 Mefferd v. Sieler & Co., 267 Neb. 532, 676 N.W.2d 22 (2004).
SHIpLey v. DeparTMeNT OF rOaDS 	843
Cite as 283 Neb. 832

judgment, the insurance carrier offered the testimony of its
employee stating that he had not been informed of the lawsuit
until after a default judgment had been entered. In opposition
to the motion, the president of the insured testified that she
could not recall whether she informed the carrier of the suit
before or after the default judgment. We concluded that this
“equivocal testimony” did not create a genuine issue of mate-
rial fact, noting that “because of its uncertainty,” it did not
stand contrary to the carrier’s showing that it did not receive
timely notice.28
Similarly, we conclude in this case that the former super-
intendent’s testimony that he did not know when the Beach
road paving project was completed does not controvert the
current superintendent’s testimony that it was completed in
May 2004, which was months prior to the effective date of title
415. accordingly, the district court did not err in concluding
that the sight restriction standards set forth in title 415 did not
apply to this case.
(b) Title 428 and aaSHTO
Green Book
Title 428 of the Nebraska administrative Code includes
minimum design standards for public roadways. It does not
include 	specific 	sight 	distance 	requirements 	for 	railroad
crossings, but it includes a note stating that the aaSHTO
Green Book “should be used for other design criteria.”29 The
aaSHTO Green Book includes a sight distance table. Based
upon this table, an expert for Stoddard’s guardians and Shipley
opined that the Beach road crossing was sight restricted.
But we do not read title 428 or the aaSHTO Green Book to
impose mandatory sight distance requirements for grade cross-
ings in Nebraska. We agree with the characterization by one
of the experts hired by Stoddard’s guardians and Shipley that
the aaSHTO Green Book sets forth guidelines which are not
legal standards.
28 Id. at 537, 676 N.W.2d at 27.
29 428 Neb. admin. Code, supra note 3.
844 	283 NeBraSka repOrTS

(c) Disposition
The record does not support a claim that either the State or
the County had a mandatory legal duty to improve any sight
restriction at the crossing created by the truck wash facility.
any decision of whether or how to do so would necessar-
ily involve balancing the competing needs of public safety,
engineering concerns, and expenditure of public funds. We
conclude that the district court did not err in finding that this
claim falls within the discretionary function exceptions of the
pSTCa and the STCa.
4. fAilure -to -WArn clAim
Stoddard’s guardians and Shipley alleged that the State and
the County were negligent in failing to warn northbound vehic-
ular traffic on Beach road that the presence of the truck wash
facility made the crossing a “blind crossing” to “any oncoming
westbound locomotives and vice versa.” relying upon Lemke
v. Metropolitan Utilities Dist.,30 they argue the County and the
State had a nondelegable duty to warn, which does not come
within the discretionary function exception.
Lemke involved a claim against a public utility for damages
caused by a natural gas explosion in a residence served by
the utility. The explosion was caused by a leak in a flexible
connector used by the utility to connect its natural gas line to
a range in the home. There was evidence that the utility had
received a specific warning from its trade association regard-
ing dangers associated with the connector, but did not take any
specific steps to warn its customers of the hazard posed by the
connector. One question presented was whether the claim that
the utility failed to warn its customer fell within the discretion-
ary function exception of the pSTCa. after reviewing cases
from other jurisdictions, this court held that
when (1) a governmental entity has actual or constructive
notice of a dangerous condition or hazard caused by or
under the control of the governmental entity and (2) the
30 Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80
(1993).
SHIpLey v. DeparTMeNT OF rOaDS 	845
Cite as 283 Neb. 832

dangerous condition or hazard is not readily apparent to
persons who are likely to be injured by the dangerous
condition or hazard, the governmental entity has a nondis-
cretionary duty to warn of the danger or take other protec-
tive measures that may prevent injury as the result of the
dangerous condition or hazard.31
In this circumstance, we held that the discretionary function
exception did not apply. Similarly, in Parker v. Lancaster
Cty. Sch. Dist. No. 001,32 we held that a school district had a
nondiscretionary duty to warn of an unguarded ramp or floor
riser in a school building which caused the plaintiff to fall and
injure herself.
But the facts of this case do not support the existence of the
nondiscretionary duty to warn recognized in Lemke and Parker.
The truck wash facility alleged to constitute the sight restric-
tion “hazard” was built by a private party on private property
and was thus not “caused by or under the control of” the State
or the County. Moreover, prior accidents at the crossing did not
place the State or the County on actual or constructive notice
of any hazard posed by the truck wash facility, as Stoddard’s
guardians and Shipley claim. The prior accidents occurred
between March 1983 and January 1995, and permits were not
issued for the construction of the facility until 2003. and fur-
ther, any sight restriction hazard posed by the truck wash facil-
ity was readily apparent to a northbound motorist approaching
the crossing. Thus, any duty to warn on the part of the State or
the County was discretionary.
V. CONCLUSION
The issue presented by these appeals is not whether the State
or the County was negligent, but whether any claimed negli-
gence occurred in the performance of discretionary functions
for which the Legislature has granted immunity. as we have
previously noted, because immunity necessarily implies that a
31 Id. at 647, 502 N.W.2d at 89.
32 Parker v. Lancaster Cty. Sch. Dist. No. 001, 256 Neb. 406, 591 N.W.2d
532 (1999).
846 	283 NeBraSka repOrTS

“wrong” has occurred, some tort claims against governmental
agencies will inevitably go unremedied.33 each grade cross-
ing, like each street or highway crossing, has some inherent
danger,34 but the placement of traffic control devices is a dis-
cretionary function of a governmental entity.35 For the reasons
discussed, the district court did not err in concluding that all of
the claims which are the subject of these appeals fell within the
discretionary function exceptions of the pSTCa and the STCa,
and we therefore affirm the judgment in each case.
A ffirmed.
33 McCormick v. City of Norfolk, supra note 20.
34 See id.
35 See id. See, also, Dresser v. Thayer County, 18 Neb. app. 99, 774 N.W.2d
640 (2009).
FIeLD CLUB v. zONING BD. OF appeaLS OF OMaHa 	847
Cite as 283 Neb. 847
field cluB home oWnerS leAgue , A neBrASkA corporAtion,
And thornBurg plAce neighBorhood ASSociAtion,
An unincorporAted ASSociAtion, AppellAntS,
v. Z oning BoArd of A ppeAlS of
omAhA et Al ., AppelleeS.
814 N.W.2d 102
Filed May 11, 2012. 	No. S-11-432.
1. Jurisdiction: Appeal and Error. an appellate court reviews de novo jurisdic-
tional determinations that do not involve a factual dispute.
2. Zoning. a zoning board is an administrative body performing quasi-judicial
functions.
3. Zoning: Standing. To apply for a variance from a zoning regulation, the appli-
cant must have standing.
4. Standing: Jurisdiction: Parties. Standing refers to whether a party had, at the
commencement of the litigation, a personal stake in the outcome of the litigation
that would warrant a court’s or tribunal’s exercising its jurisdiction and remedial
powers on the party’s behalf.
5. ____: ____: ____. Standing is a component of jurisdiction; only a party that has
standing—a legal or equitable right, title, or interest in the subject matter of the
controversy—may invoke the jurisdiction of a court or tribunal.
6. Claims: Parties. Generally, a litigant must assert the litigant’s own rights and
interests, and cannot rest a claim on the legal rights or interests of third parties.