Blaser v. County of Madison

290 	285 NEBRASKA REPORTS
Visoso retained the burden to prove his permanent disabil-
ity and the impairment of his earning capacity. Visoso had
returned to his country of origin, and the compensation court
concluded there was no credible evidence which could be
used to determine his loss of earning capacity in his new com-
munity. When no credible data exists for the community to
which the employee has relocated, the community where the
injury occurred can serve as the hub community. Therefore,
we remand the cause to the Workers’ Compensation Court
to allow Visoso to attempt to establish permanent impair-
ment and loss of earning capacity using Schuyler as the
hub community.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
cAssel, J., not participating.
lArry BlAser et Al., Appellees, v.
county of mAdison, neBrAskA, A
politicAl suBdivision, AppellAnt.
826 N.W.2d 554
Filed February 22, 2013. 	No. S-12-558.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
under the Political Subdivisions Tort Claims Act, an appellate court will not dis-
turb the factual findings of the trial court unless they are clearly wrong.
2. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
3. Judgments: Appeal and Error. When reviewing a question of law, an appel-
late court resolves the question independently of the conclusion reached by the
trial court.
4. Negligence: Appeal and Error. Whether a defendant breaches a duty is a ques-
tion of fact for the fact finder, which an appellate court reviews for clear error.
5. Statutes. Statutory interpretation presents a question of law.
6. Judges: Recusal: Waiver. 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.
7. Appeal and Error: Words and Phrases. Plain error is error uncomplained of at
trial and is plainly evident from the record and of such a nature that to leave it
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

BLASER v. COUNTY OF MADISON 	291
Cite as 285 Neb. 290
uncorrected would result in damage to the integrity, reputation, or fairness of the
judicial process.
8. Judges: Recusal. A trial judge should recuse himself or herself when a litigant
demonstrates that a reasonable person who knew the circumstances of the case
would question the judge’s impartiality under an objective standard of reason-
ableness, even though no actual bias or prejudice is shown.
9. Negligence: Proof. In order to recover in a negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
10. Negligence. It is for the fact finder in a negligence case to determine, on the facts
of each individual case, whether or not the evidence establishes a breach of duty.
11. 	Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
12. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of
a statute, an appellate court must determine and give effect to the purpose and
intent of the Legislature as ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
13. Statutes: Legislature: Intent. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the Legislature, so that
different provisions are consistent, harmonious, and sensible.
14. Statutes. Statutes which effect a change in the common law are to be strictly
construed.
15. Negligence. The existence of a duty serves as a legal conclusion that an actor
must exercise such degree of care as would be exercised by a reasonable person
under the circumstances.
16. ____. Duty rules are meant to serve as broadly applicable guidelines for public
behavior, i.e., rules of law applicable to a category of cases.
17. Pleadings. The issues in a case are framed by the pleadings.
Appeal from the District Court for Madison County: roBert
B. ensz, Judge. Reversed and remanded with directions.
Vincent Valentino for appellant.
Todd B. Vetter, of Fitzgerald, Vetter & Temple, for appellee.
Wright, connolly, stephAn, mccormAck, miller-lermAn,
and cAssel, JJ.
miller-lermAn, J.
NATURE OF CASE
Larry Blaser, Terry McCaw, and Patricia McCaw, the appel-
lees, brought this negligence action in the district court for

292 	285 NEBRASKA REPORTS
Madison County along with Sharon Blaser against the County
of Madison, Nebraska (the County), the appellant, under the
Political Subdivisions Tort Claims Act after Larry and Terry
were injured in a single-vehicle accident in which Larry drove
into a washout on a vacated county road. The appellees alleged
that the County was negligent by failing to maintain the
“Road Closed” warning sign. Following trial, the district court
found the County liable for negligence and, after finding Larry
40-percent contributorily negligent, entered judgment against
the County.
On appeal, the County claims that it was plain error for the
first judge, who recused himself, to name a second judge as the
successor judge. With respect to the merits, the County claims
that although it may have had an obligation to warn travel-
ers of the washout, the district court erred when it concluded
that the County had a “duty” to maintain the vacated road and
breached this duty. The County claims that it did not have
“actual” or “constructive” knowledge its road closed warning
sign was down on the day of the accident and that the district
court erred when it failed to determine whether the County
retained its sovereign immunity, which determination would
resolve this issue.
We find no plain error with respect to naming the second
judge. We determine that the district court erred when it con-
cluded that the County had a duty to maintain the vacated
road. We also determine that the district court erred when it
determined that the issue whether the County had actual or
constructive knowledge that its warning sign was down was a
“non-issue” and when it failed to determine whether there was
merit to the County’s reliance on alleged retention of sovereign
immunity under Neb. Rev. Stat. § 13-910(9) (Reissue 2007).
We reverse, and remand this matter to the district court with
directions, inter alia, to determine whether the County had
actual or constructive knowledge that its road closed sign at
the north end of the vacated road was not functioning prop-
erly on the day of the accident and whether the County had
a reasonable amount of time to remedy the problem in order
to determine whether or not the County retained its sover-
eign immunity.

BLASER v. COUNTY OF MADISON 	293
Cite as 285 Neb. 290
STATEMENT OF FACTS
These 	parties 	were 	previously 	before 	us 	in 	case 	No.
S-11-1048. In that prior case, the County brought an appeal
based upon the same underlying facts and record described
below. On June 6, 2012, we dismissed that previous appeal
for lack of jurisdiction pursuant to Neb. Ct. R. App. P.
§ 2-107(A)(2) (rev. 2012) due to the absence of a final, appeal-
able order. Although Sharon Blaser was an appellee in case No.
S-11-1048, the district court’s order filed September 15, 2011,
had not disposed of Sharon’s claims. Following our dismissal
of case No. S-11-1048, the district court dismissed Sharon’s
claims by an order filed June 21, 2012. The County again
appealed, and this is the appeal currently before us.
On November 9, 2008, Larry was driving his 1996 Ford
Ranger pickup southbound on the vacated road, 545th Avenue,
and Terry was riding as a passenger. While traveling on the
vacated road, Larry and Terry drove into a washout, or a large
hole in the middle of the road, approximately 12 feet wide and
8 feet deep. As a result of the accident, the pickup truck was
damaged, Larry sustained mild injuries, and Terry sustained
severe injuries. Patricia cared for Terry after the accident. This
accident gives rise to this case.
According to the trial record, on October 19, 2004, the
County’s 	board 	of 	commissioners 	adopted 	resolution 	No.
2004-78, which vacated a 1-mile stretch of 545th Avenue, a
north-south roadway, between 845th Road and 846th Road.
However, the County specifically qualified the vacation and
stated that the County retained a right-of-way over the vacated
road subject to any easements of record. The intersection of
545th Avenue and 846th Road is the north end of the vacated
portion of the road, and the intersection of 545th Avenue and
845th Road is the south end. Additionally, 846th Road is the
county line between Madison County and Pierce County, with
Madison County lying to the south.
In April 2005, after the County had vacated the road, road
closed signs were placed at the north and south ends of the
vacated road. Larry and Terry testified that on the day of their
accident, they did not observe any road closed signs. The
deputy who investigated Larry and Terry’s accident stated that

294 	285 NEBRASKA REPORTS
a road closed sign at the north end of the vacated road had
been unbolted and laid on the ground next to the upright post
and was not visible from the road on November 9, 2008, the
day of Larry and Terry’s accident. Gary Drahota, a man who
owned land and lived in the area, stated that he did not see a
road closed sign at the north end of the vacated portion of the
road at the intersection of 545th Avenue and 846th Road on
October 27, 2008. Another man, who owns land surrounding
the vacated road, testified that he recalled seeing a road closed
sign at the north end of the vacated road a few days before
Larry and Terry’s accident.
A couple of weeks prior to the accident at issue in this case,
another accident occurred involving the same washout on the
vacated road. Between October 27 and October 30, 2008,
Drahota notified law enforcement that he had been traveling
on the vacated road when he found an abandoned vehicle in
the washout. On October 30, a deputy sheriff for the County
investigated this report and found the abandoned vehicle in the
washout. He approached the abandoned vehicle from the south
end of the vacated road, traveling north. On November 3, as
part of his investigation, he discovered that one of the occu-
pants of the abandoned vehicle had been injured as a result
of driving into the washout and had sought treatment at a
hospital. However, the deputy’s subsequent attempts to contact
the owners of the abandoned vehicle were unsuccessful. The
abandoned vehicle was removed from the washout before the
time of the accident at issue in this case, but the deputy testi-
fied that he did not know exactly when or how the abandoned
vehicle was removed from the washout.
Sometime after the County was notified of the abandoned
vehicle and before Larry and Terry’s accident on November
9, 2008, the County’s highway superintendent was instructed
to investigate whether the signs on the vacated road were
functioning properly. He testified that while he did inspect
the south end of the vacated portion of 545th Avenue, he did
not actually inspect the north end of the vacated portion of
the road at the intersection of 545th Avenue and 846th Road,
through which Larry and Terry traveled heading south prior
to the accident. Regarding the north portion of the vacated

BLASER v. COUNTY OF MADISON 	295
Cite as 285 Neb. 290
road, the superintendent stated he positioned himself 2 miles
north of the county line and looked to the south. He testified
that he could not see any signs from his vantage point of 2
miles away.
On December 14, 2009, the appellees along with Sharon filed
their first amended complaint, bringing this negligence action
against the County under Nebraska’s Political Subdivisions
Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue
2007). The appellees and Sharon alleged that the County was
negligent because it failed to “correct the malfunction, destruc-
tion, or any unauthorized removal of the Road Closed signed
[sic] when it had actual and constructive knowledge and notice
of the malfunction, destruction, and or [sic] removal of the
sign.” Larry alleged that he sustained damages for personal
injuries, medical expenses, damage to his vehicle, loss of
income, loss of earning capacity, past and future physical pain
and mental suffering. Terry alleged that he sustained damages
for personal injuries, past and future medical expenses, past
and future physical pain and suffering, loss of income, and loss
of earning capacity. Sharon and Patricia both alleged that they
sustained a loss of care, comfort, companionship, assistance,
and services of their spouses as a proximate result of the neg-
ligence of the County.
In its amended answer, the County denied many of the
appellees’ and Sharon’s claims. However, the County admit-
ted paragraph 6 of the amended complaint, which alleged that
as part of the investigation by the Madison County sheriff’s
office, the sheriff’s office located a road closed sign that had
been knocked over. The record shows that the investigation
occurred on November 9, 2008, the day of the accident. The
County affirmatively asserted that it is immune from suit
under various provisions of the Political Subdivisions Tort
Claims Act and asserted the affirmative defenses of con-
tributory negligence, assumption of the risk, and alternative
safe route. The defense under the Political Subdivisions Tort
Claims Act which has been asserted in this appeal is found at
§ 13-910(9), which generally provides that the political subdi-
vision retains sovereign immunity from “[a]ny claim arising
out of the malfunction, destruction, or unauthorized removal

296 	285 NEBRASKA REPORTS
of any traffic or road sign . . . unless it is not corrected by the
political subdivision responsible within a reasonable time after
actual or constructive notice of such malfunction, destruction,
or removal.”
The County filed a motion for summary judgment, and
the appellees and Sharon filed a motion for partial summary
judgment. On July 14, 2010, the first judge entered an order
in which it granted the appellees’ and Sharon’s motion for
partial summary judgment, overruled the County’s motion for
summary judgment, and left for trial the issues of contributory
negligence, proximate causation, and damages.
The County then filed a motion for recusal which the appel-
lees and Sharon did not oppose. On January 4, 2011, the first
judge entered an order recusing himself from the matter and
assigned the case to a second judge whom he identified by
name for further disposition. No party challenged this order at
the time it was entered, or throughout the trial-level proceed-
ings. In response to the County’s motion, the second judge
vacated the prior order which had granted the appellees’ and
Sharon’s motion for partial summary judgment, and the case
proceeded to trial.
On September 15, 2011, after a bench trial before the sec-
ond judge, the district court entered an order finding that the
County had a duty toward the appellees, breached its duty,
and was liable for damages. The court rejected the County’s
defenses of immunity under various provisions of the Political
Subdivisions Tort Claims Act and its other defenses except
contributory negligence. After finding Larry 40-percent con-
tributorily negligent, the court entered judgment in favor of the
appellees. The court awarded judgments of $6,093.71 to Larry,
$365,383.66 to Terry, and $12,000 to Patricia. The court’s
order did not address whether or not it was awarding any dam-
ages to Sharon; Sharon’s claims were later dismissed.
Considerable argument occurred in the district court regard-
ing the duty, if any, owed to the appellees and the particular
way the County could meet its duty. The appellees alleged, and
the evidence was directed at whether, the County had failed
to meet its obligation to warn travelers by failing to maintain

BLASER v. COUNTY OF MADISON 	297
Cite as 285 Neb. 290
its warning sign. In its order following trial, the district court
relied on the reasoning in Woollen v. State, 256 Neb. 865,
593 N.W.2d 729 (1999), abrogated, A.W. v. Lancaster Cty.
Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010), and
concluded that the County had a “duty” to remedy the danger-
ous condition of the vacated road. The court found that the
condition of the road was the proximate cause of the accident
and injuries. Elsewhere in the district court’s order, the court
stated, “The evidence is in dispute as to the existence and
position of a sign posted by the [County] at the intersection of
545th Avenue and 846th Road . . . . This is a non-issue . . . .”
The district court did not make any findings as to whether the
County’s warning sign at the northern point of the vacated road
was down and whether the County had actual or constructive
knowledge that the sign was down or had a reasonable time to
correct it.
On November 10, 2011, the district court denied the County’s
motion for new trial. The County appealed the district court’s
September 15 order and its November 10 order denying the
motion for new trial. As stated earlier, that initial appeal, case
No. S-11-1048, was dismissed for lack of jurisdiction and the
rulings following our remand have disposed of all claims of all
parties. The County appeals.
ASSIGNMENTS OF ERROR
The County claims, consolidated and restated, that (1) plain
error was committed when the first judge, who recused himself
from the case, appointed the second judge; (2) the district court
erred when it determined that the County had a “duty” to repair
the vacated road; (3) the district court erred when it determined
that the County breached the duty to repair the road; and (4)
the district court erred when it concluded that the sovereign
immunity defense under §13-910(9) was not applicable and
failed to determine whether the County had actual or construc-
tive knowledge that the warning sign was down and failed to
correct the problem within a reasonable time. In view of our
disposition, we need not reach the County’s other assignments
of error.

298 	285 NEBRASKA REPORTS
STANDARDS OF REVIEW
[1] In actions brought under the Political Subdivisions Tort
Claims Act, an appellate court will not disturb the factual find-
ings of the trial court unless they are clearly wrong. Downey
v. Western Comm. College Area, 282 Neb. 970, 808 N.W.2d
839 (2012).
[2,3] The question whether a legal duty exists for action-
able negligence is a question of law dependent on the facts in
a particular situation. Olson v. Wrenshall, 284 Neb. 445, 822
N.W.2d 336 (2012). When reviewing a question of law, an
appellate court resolves the question independently of the con-
clusion reached by the trial court. Id.
[4] Whether a defendant breaches a duty is a question of fact
for the fact finder, which an appellate court reviews for clear
error. Downey v. Western Comm. College Area, supra.
[5] Statutory interpretation presents a question of law. Id.
ANALYSIS
Judge Disqualification.
The County moved for recusal of the first judge to whom
the case was initially assigned. The first judge granted the
motion and appointed the second judge as the successor
judge. The County did not move to recuse or disqualify the
second judge at the trial level. The County states in its brief
on appeal that the “issue raised is whether [the first judge’s]
reassignment action was plain error requiring reversal of [the
second judge’s] subsequent trial order.” Brief for appellant
at 41. We do not find plain error and reject this assignment
of error.
[6] The County acknowledges that it did not seek dis-
qualification of the second judge at the trial level. We have
stated that
the rule that it is generally too late to raise the issue of
disqualification after the matter is submitted for decision
rests on the principle that a party may not gamble on a
favorable decision. This principle does not apply when
the facts constituting the disqualification are unknown,
because no gamble could have been purposefully made.
Instead, the issue of disqualification is timely if submitted

BLASER v. COUNTY OF MADISON 	299
Cite as 285 Neb. 290
at the “‘earliest practicable opportunity’ after the disquali-
fying facts are discovered.”
Tierney v. Four H Land Co., 281 Neb. 658, 665, 798 N.W.2d
586, 592 (2011) (quoting Urias v. Harris Farms, Inc., 234 Cal.
App. 3d 415, 285 Cal. Rptr. 659 (1991)). We also stated in
Tierney that
[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. [Under these facts, o]nce
a case has been litigated, an appellate court will not . . .
disqualify a judge and give litigants “‘a second bite at
the apple.’”
281 Neb. at 664-65, 798 N.W.2d at 592 (quoting McCully, Inc.
v. Baccaro Ranch, 279 Neb. 443, 778 N.W.2d 115 (2010)). The
County waived this disqualification issue by not raising it at
the earliest possible time at the trial level.
[7] Having waived the disqualification issue, the County
nevertheless asks us to disqualify the second judge and
reverse his order following trial based on plain error. We have
stated that plain error is error uncomplained of at trial and is
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. See Worth v.
Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007). We do not
find plain error.
[8] 	The 	Nebraska 	Revised 	Code 	of 	Judicial 	Conduct
requires that “[a] judge shall hear and decide matters assigned
to the judge, except when disqualification is required . . . .”
Neb. Rev. Code of Judicial Conduct § 5-302.7 (previously
found at Neb. Code of Judicial Conduct § 5-203(B)(1)).
The code goes on to state that “[a] judge shall disqualify
himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned . . . .” Neb. Rev.
Code of Judicial Conduct § 5-302.11(A) (previously found
at Neb. Code of Judicial Conduct § 5-203(E)). We have
previously stated that a trial judge should recuse himself or
herself when a litigant demonstrates that a reasonable person

300 	285 NEBRASKA REPORTS
who knew the circumstances of the case would question the
judge’s impartiality under an objective standard of reason-
ableness, even though no actual bias or prejudice is shown.
Tierney, supra.
The County suggests that the rulings in the order after trial
are similar to those of the first but disqualified judge and that
they thus suggest an implicit bias toward an adherence to the
earlier rulings and perhaps a failure of impartial examination
of the law. The record shows, however, that the second judge,
as successor judge, vacated the first judge’s partial summary
judgment ruling and that the matter proceeded to full trial. The
reversible error which is found below in this opinion, i.e., the
second judge’s erroneous finding that the County’s knowledge
of the condition of its warning signs was a “non-issue,” was
unique to the second judge. We find nothing in the record that
indicates under an objective standard of reasonableness that
the second judge’s impartiality was subject to question or that
his appointment as successor judge by the first judge has an
appearance of impropriety.
We determine that it is not plainly evident that the first
judge’s appointment of the second judge is an error that if left
uncorrected would result in damage to the integrity, reputation,
or fairness of the judicial process. The second judge was the
only remaining resident district judge in the judicial district,
and his appointment did not result in an appearance of impro-
priety. Accordingly, the County’s first assignment of error is
without merit.
The County’s Duty, Breach of Duty,
and Sovereign Immunity.
The County claims that the district court erred when it con-
cluded that the County had a “duty” to repair or remedy the
washout in the vacated road and further erred when it deter-
mined that the County breached this duty, proximately causing
damage to the appellees. The County claims that the district
court erred when it failed to consider its sovereign immunity
defense under § 13-910(9). In this regard, although the County
concedes on appeal that its warning sign was not posted on
the day of the accident, it asserts that it did not have actual or

BLASER v. COUNTY OF MADISON 	301
Cite as 285 Neb. 290
constructive knowledge of this fact and that the district court
erred when it failed to resolve the issues of whether the County
had constructive knowledge of the status of the road closed
sign and whether the County failed to correct this problem
within a reasonable time. As explained below, we analyze the
issue regarding duty and then the sovereign immunity defense
and find merit to these assignments of error. We reverse the
judgment entered in favor of the appellees and remand the
cause with directions to the district court to make findings
regarding the warning sign issue as these facts relate to the
County’s claim of sovereign immunity under § 13-910(9) and
to consider defenses as may be appropriate and enter orders
accordingly. Because the County’s motion for new trial essen-
tially encompassed its challenges to the order after trial, our
analysis focuses on the reversible errors in that order. These
errors also require reversal of the order denying the motion for
new trial.
[9,10] In order to recover in a negligence action, a plaintiff
must show a legal duty owed by the defendant to the plaintiff,
a breach of such duty, causation, and damages. Martensen v.
Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012). See, also,
Connelly v. City of Omaha, 284 Neb. 131, 140, 816 N.W.2d
742, 753 (2012) (stating that a “negligence action brought
under the [Political Subdivisions Tort Claims Act] has the
same elements as a negligence action against an individual,
i.e., duty, breach of duty, causation, and damages”). The ques-
tion whether a legal duty exists for actionable negligence is a
question of law dependent on the facts in a particular situation.
Martensen, supra. But it is for the fact finder to determine, on
the facts of each individual case, whether or not the evidence
establishes a breach of that duty. A.W. v. Lancaster Cty. Sch.
Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010). In A.W., we
abandoned the risk-utility test and adopted the duty analysis
in the Restatement (Third) of Torts: Liability for Physical and
Emotional Harm (2010). More recently, in Martensen, supra;
Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487
(2012); and Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181
(2011), we again followed the duty analysis in the Restatement
(Third), supra.

302 	285 NEBRASKA REPORTS
In its order after trial, the district court noted that the County
retained a right-of-way in the vacated road and that the County
was aware of the road’s use and its dangerous condition. The
district court reasoned that because of these facts, the County
had a “duty” to remedy the condition. The district court spe-
cifically found that the unremedied condition of the road was
the proximate cause of the accident. Evidently as a result of
this determination, the district court further determined that the
issues surrounding the warning sign on the day of the accident
were “non-issue[s].” In its order, the district court indicated
that evidence regarding the County’s warning sign was in dis-
pute, but it made no finding regarding whether the warning
sign was up or down on the day of the accident and no finding
whether the County had actual or constructive knowledge of
this fact and whether the County had a reasonable time within
which to remedy this problem.
The district court’s legal conclusion that the County had a
“duty” to repair the vacated road is inconsistent with the stat-
utes, and thus, as the County claims, the court erred in making
this conclusion. The County makes several arguments regard-
ing duty. We reject the County’s suggestion relying on Neb.
Rev. Stat. § 39-1401(2) (Reissue 2008) that the road lost its
public character, absolving the County of responsibility, when
the road was vacated with retention of the County’s right-of-
way. However, we agree that the County did not have a duty to
maintain the road.
[11-13] We have stated that statutory language is to be given
its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. Bridgeport
Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 N.W.2d
600 (2012). In discerning the meaning of a statute, an appellate
court must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language of
the statute considered in its plain, ordinary, and popular sense.
Id. Components of a series or collection of statutes pertaining
to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,

BLASER v. COUNTY OF MADISON 	303
Cite as 285 Neb. 290
harmonious, and sensible. Pittman v. Western Engineering Co.,
283 Neb. 913, 813 N.W.2d 487 (2012).
With these general rules of statutory construction in mind,
we turn to the applicable statutes. Neb. Rev. Stat. § 39-1402
(Reissue 2008) describes the scope of the authority of a county
board regarding county roads. Section 39-1402 provides:
General supervision and control of the public roads
of each county is vested in the county board. The board
shall have the power and authority of establishment,
improvement, maintenance and abandonment of public
roads of the county and of enforcement of the laws
in relation thereto as provided by the provisions of
Chapter 39, articles 14 to 20, except sections 39-1520.01
and 39-1908.
Neb. Rev. Stat. § 39-1404 (Reissue 2008) provides in
effect that public roadways ordinarily remain public and do
not lose their public character; nor is that character dimin-
ished by occupation, estoppel, or other similar acts. Section
39-1404 provides:
No privilege, franchise, right, title, right of user, or
other interest in or to any street, avenue, road, thorough-
fare, alley or public grounds in any county, city, munici-
pality, town, or village of this state, or in the space or
region under, through or above any such street, avenue,
road, thoroughfare, alley, or public grounds, shall ever
arise or be created, secured, acquired, extended, enlarged
or amplified by user, occupation, acquiescence, implica-
tion, or estoppel.
We read §§ 39-1402 and 39-1404 together with Neb. Rev.
Stat. § 39-1725 (Reissue 2008), which provides that a county
board can vacate a road completely or with qualifications such
as retention of a right-of-way. Section 39-1725 provides in
relevant part:
In the event that the county board decides to vacate or
abandon, its resolution shall state upon what conditions,
if any, the vacation or abandonment shall be qualified
and particularly whether or not the title or right-of-way
to any vacated or abandoned fragment or section of road
shall be sold, revert to private ownership, or remain

304 	285 NEBRASKA REPORTS
in the public. If the county board fails to specify in a
resolution as to the disposition of right-of-way, and if
there shall be nonuse of such right-of-way for any pub-
lic purpose for a continuous period of not less than ten
years, the right-of-way shall revert to the owners of the
adjacent real estate, one-half on each side thereof. When
the county vacates all or any portion of a road, the county
shall, within thirty days after the effective date of the
vacation, file a certified copy of the vacating resolution
with the register of deeds for the county to be indexed
against all affected lots.
(Emphasis supplied.)
A roadway is generally said to be “vacated when its exis-
tence is terminated by direct action of public authorities.”
39A C.J.S. Highways § 112 at 613 (2003). Such direct action
is authorized by § 39-1725. “Abandonment” of a road or
highway by nonuse or otherwise is generally viewed as dis-
tinguishable from “vacation,” the latter of which is accom-
plished by affirmative action of a governing body. 39 Am. Jur.
2d Highways, Streets, and Bridges § 173 at 756 (2008). See,
also, id., § 149. As it applies to state highways, “[a]bandon”
means “to reject all or part of the [Department of Roads’]
rights and responsibilities relating to all or part of a fragment,
section, or route on the state highway system.” Neb. Rev. Stat.
§ 39-1302(1) (Reissue 2008). The term “vacate” is not defined
in § 39-1302.
A “[r]ight-of-way” is defined in § 39-1302(31) as “land,
property, or interest therein, usually in a strip, acquired for or
devoted to a road, street, or highway.” Although this definition
of the term “right-of-way” pertains to state highways, we apply
it to the county road involved in this case.
Under the statutes, a county board is authorized to take var-
ied actions with respect to its rights-of-way all of which dem-
onstrate the public character of the rights-of-way. Under Neb.
Rev. Stat. § 39-301 (Reissue 2008), the county board can grant
permission to a landowner to divert water from one area to
another along a county highway right-of-way. Under Neb. Rev.
Stat. § 39-309 (Reissue 2008), the county board may remove
trees and hedges planted by landowners bordering the county’s

BLASER v. COUNTY OF MADISON 	305
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right-of-way. Neb. Rev. Stat. § 39-1816 (Reissue 2008) confers
power on the county board to restrict parking on the county’s
right-of-way, and parking in the right-of-way in violation of no
parking or restricted parking signs is punishable as a Class V
misdemeanor. Neb. Rev. Stat. § 39-1702 (Reissue 2008) autho-
rizes the county board to acquire land in fee simple or a lesser
estate, and such acquired land may be a right-of-way. Taken
together, these statutes show the powers of the county board
with respect to the county’s rights-of-way. Thus, notwithstand-
ing the qualified vacation of the road, the character of the
rights-of-way remains public.
In reading these statutes sensibly, we consider the general
context in which they appear, which pertains to public road-
ways. It has been observed that generally, “[o]nce established,
a public highway does not lose its character as a public road
unless it is either vacated by the authorities in the manner pre-
scribed by statute or abandoned.” 39 Am. Jur. 2d Highways,
Streets, and Bridges § 148 at 736 (2008). See, also, Board
of County Com’rs v. Kobobel, 74 P.3d 401, 406 (Colo. App.
2002) (stating that “[o]rdinarily, public highways remain pub-
lic unless and until vacated or abandoned by some appropriate
action”). It has also been noted:
The discontinuance of a public highway is not favored
in the law. Once it is shown that a road is a public high-
way, the highway is presumed to exist until it is discon-
tinued. The general rule is “once a highway, always a
highway,” though of course this maxim gives way to the
rules of law concerning the abandonment or vacation of
a highway.
39 Am. Jur. 2d, supra, § 150 at 738-39.
[14] Nebraska statutes are consistent with these statements
reflecting the common law. The above-quoted Nebraska stat-
utes show that a county road is a public road which tends to
remain public, see § 39-1404, but under § 39-1725, a county
can completely vacate a road or there may be a vacation
with a qualification, such as the retention of a right-of-way.
It has been noted that “statutes governing the vacation of a
public road are in derogation of the common law [concerning
a public entity’s continuing ownership and responsibilities

306 	285 NEBRASKA REPORTS
for roadways] and must be strictly construed.” 39 Am. Jur.
2d, supra, § 148 at 737. We have recognized that statutes
which effect a change in the common law are to be strictly
construed. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d
875 (2012).
For completeness, as we noted above, the County briefly
refers us to one additional statute, § 39-1401(2), which pro-
vides that a public road is a road which has not been vacated.
The County suggests that under this statute, the vacated road
in this case lost its public character, thus relieving the County
of responsibility. We reject this argument. Contrary to the
County’s suggestion, we read § 39-1401(2) in conjunction with
the other statutes considered above, and thus, we believe that
for a road to lose its public character under § 39-1401(2), there
must be an unqualified vacation of the road.
At issue in this case are statutes governing the public road-
ways in general and statutes governing the vacating of public
roadways in particular. We must read the series of statutes
pertaining to county roads conjunctively so that the different
provisions are consistent, harmonious, and sensible. Pittman
v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487
(2012). In so doing, we read the relevant statutes to mean
that a county board controls and supervises the public roads
in its county. § 39-1402. Under § 39-1725, the county board
may take steps to vacate a road completely, in which case
the roadway would lose its public character, § 39-1401(2),
or to vacate a road with qualifications such as retention of
the right-of-way, in which case the road with the right-of-
way retains its public character but requires responsibility by
the county commensurate with its status. Thus, with respect
to its public roads, we conclude that the county had a duty
to exercise such degree of care as would be exercised by a
reasonable county in connection with its public road which
has been vacated but for which the county has retained a
right-of-way.
[15,16] As a general matter, the existence of a duty serves
as a legal conclusion that an actor must exercise such degree
of care as would be exercised by a reasonable person under
the circumstances. Martensen v. Rejda Bros., 283 Neb. 279,

BLASER v. COUNTY OF MADISON 	307
Cite as 285 Neb. 290
808 N.W.2d 855 (2012). We have stated that “‘[d]uty rules
are meant to serve as broadly applicable guidelines for public
behavior, i.e., rules of law applicable to a category of cases.’”
Id. at 287, 808 N.W.2d at 863 (quoting A.W. v. Lancaster Cty.
Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010)). We
have recognized that “‘whether a duty exists is a policy deci-
sion.’” Id. (quoting A.W., supra).
In the present case, the County vacated 545th Avenue
between 845th Road and 846th Road with the qualification
that it retained a right-of-way pursuant to § 39-1725. In
this regard, the record shows that on October 19, 2004, the
County’s board of commissioners vacated this portion of 545th
Avenue by resolution No. 2004-78, which provided in part,
“NOW THEREFORE, BE IT RESOLVED by the Board of
Commissioners of Madison County, Nebraska that the county
road described below is hereby vacated, and that the County
shall retain the Right-of-Way subject to any easements of
record, which shall remain in full force and effect.”
As of November 9, 2008, the date of the accident at issue
in this case, the County still retained this right-of-way, and
it is undisputed that there was occasional public use. Under
§ 39-1725, had there been no public use of the right-of-way for
a period of 10 continuous years after the resolution, the vacated
road would have reverted to the adjacent landowners. The
reversion provision in § 39-1725 lends support to the propo-
sition that in the absence of reversion, the authority over the
vacated road remained with the County and the road remained
public in character.
Summarizing what we have noted above, because the County
retained a right-of-way in the vacated road, we conclude that
the County had the duty to do what a reasonable county would
do having vacated a road but retained a right-of-way. The dis-
trict court erred as a matter of law when it failed to reach this
legal conclusion regarding duty. Perhaps using the word “duty”
in a casual sense, when the district court determined that the
County had a “duty” to remedy the condition of the road, it
substituted a factual proposition regarding the manner in which
a duty can be met or breached in place of the legal conclusion
as to the existence of the duty.

308 	285 NEBRASKA REPORTS
In its order after trial, the district court relied on Woollen v.
State, 256 Neb. 865, 593 N.W.2d 729 (1999), which involved,
inter alia, allegations of improper maintenance of a state high-
way and no allegations of vacation or abandonment. Referring
to Woollen, the district court concluded that “by retaining
control of the road through retention of the right-of-way, [the
County] had a duty . . . to remedy the condition [of the vacated
road].” The facts in Woollen are distinguishable, and the rea-
soning in Woollen has been abrogated by the jurisprudence set
forth in A.W., supra. Thus, the district court’s duty analysis
relying on Woollen was flawed. What the district court char-
acterized as the County’s legal “duty” to remedy the road was
instead the factual manner by which the County could arguably
meet or breach its duty. However, as explained below, the man-
ner in which the County could meet its duty in this case was to
maintain warning signs it had chosen to install rather than rem-
edying the washout. Although there was a fleeting reference to
road maintenance in closing argument, neither the controlling
pleadings nor the evidence was directed at the manner in which
the County might maintain the vacated road.
The statutes do not specify the responsibilities of the County
for those roads which are vacated by an act of its board of com-
missioners but with the qualification that the County retains a
right-of-way. A road that has been vacated with a qualification
falls between a road that has been completely vacated and a
road untouched by vacation in any degree. Based on the stat-
utes, the logical conclusion is that a county’s responsibilities
regarding a road that has been vacated with a qualification are
less than the obligation to fully maintain, as with a public road
untouched by any degree of vacation, but more than no obliga-
tions, as with a completely vacated road. Thus, we turn to the
nature of the County’s responsibilities in this case and whether
the County’s conduct breached its duty to exercise the degree
of care that would be exercised by a reasonable county under
the circumstances.
In order to recover, the appellees were required to establish
that the County breached its duty owed to them. See A.W. v.
Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907

BLASER v. COUNTY OF MADISON 	309
Cite as 285 Neb. 290
(2010). The question of whether the County’s conduct breached
its duty regarding a vacated road in which it retained a right-
of-way is a question of fact. See id. at 210-11, 784 N.W.2d
at 913 (stating that “it is for the fact finder to determine, on
the facts of each individual case, whether or not the evidence
establishes a breach of . . . duty”).
[17] The issues in a case are framed by the pleadings.
Richards v. Meeske, 268 Neb. 901, 689 N.W.2d 337 (2004). In
their first amended complaint at paragraph 10, the appellees
allege that the particular manner in which the County breached
its duty was by
failing to correct the malfunction, destruction, or any
unauthorized removal of the Road Closed signed [sic]
when it had actual and constructive knowledge and notice
of the malfunction, destruction, and or [sic] removal of
the sign, which sign would have notified the traveling
public that the section of road was vacated and contained
dangers thereon. [The County violated] the Nebraska
Political Subdivisions Tort Claims Act, §13-910(9).
See, also, paragraphs 6 and 8 of the complaint.
In paragraph 19 of its amended answer to the first amended
complaint, the County affirmatively alleged that it was immune
from suit under, inter alia, § 13-910(9). Section 13-910(9) of
the Political Subdivisions Tort Claims Act generally provides
that the political subdivision retains its sovereign immunity
from “[a]ny claim arising out of the malfunction, destruction,
or unauthorized removal of any traffic or road sign . . . unless it
is not corrected by the political subdivision responsible within
a reasonable time after actual or constructive notice of such
malfunction, destruction, or removal.” The second sentence of
§ 13-910(9) continues, “Nothing in this subdivision shall give
rise to liability arising from an act or omission of any political
subdivision in placing or removing any traffic or road signs,
signals, or warning devices when such placement or removal
is the result of a discretionary act of the political subdivision.”
There is no indication in this record that the County removed
the warning sign, and the County does not assert an absence of
liability under the second sentence of § 13-910(9).

310 	285 NEBRASKA REPORTS
We have previously considered § 13-910(9) and its related
provisions. We have observed that the decision to install a traf-
fic control device is ordinarily a discretionary function and that
a political subdivision is immune from suit with respect to such
decision. See McCormick v. City of Norfolk, 263 Neb. 693, 641
N.W.2d 638 (2002). See, also, § 13-910(2). See, additionally,
Neb. Rev. Stat. § 60-6,121 (Reissue 2008) (providing that local
authorities shall place traffic control devices “as they deem
necessary”). In the instant case, the County exercised its dis-
cretionary function by choosing to install the road closed warn-
ing sign at the north end of the vacated road. Under § 60-6,121,
once the political subdivision elects to install a device, the
device must conform to the Manual on Uniform Traffic Control
Devices. See Tadros v. City of Omaha, 269 Neb. 528, 694
N.W.2d 180 (2005).
The appellees alleged that having chosen to erect a warn-
ing sign, the County was responsible to maintain it, and that
the County’s failure to maintain the warning sign gave rise
to liability under § 13-910(9). Evidence was presented by
the appellees to support these allegations, and evidence was
presented by the County to disprove these allegations. The
County’s evidence focused on its alleged lack of notice that
the sign was down on the day of the accident. Under Neb.
Rev. Stat. § 81-8,219(9) (Reissue 2008), which is the statute
applicable to the state equivalent to § 13-910(9), which is the
statute applicable to political subdivisions, we have recognized
that whether the public entity had notice of a malfunction and
whether it did not correct the malfunction within a reasonable
time are findings of fact. See Fickle v. State, 273 Neb. 990,
735 N.W.2d 754 (2007), modified on other grounds, 274 Neb.
267, 759 N.W.2d 113. Given the law and the record, these criti-
cal facts should have been decided by the district court as the
fact finder in order to determine whether the County’s defense
under § 13-910(9) had merit.
The district court stated that the sign-related issue was a
“non-issue” based on the district court’s erroneous legal con-
clusion that, in any event, the County had a duty to repair
the washout in the road and had breached this duty. These
determinations by the district court constitute reversible error.

BLASER v. COUNTY OF MADISON 	311
Cite as 285 Neb. 290
Therefore, we reverse the judgment in favor of the appellees
and remand the cause to the district court.
Because we are remanding this matter to the district court
to make determinations regarding the warning sign, we do not
reach the County’s remaining assignments of error.
CONCLUSION
We do not find plain error in connection with the first
judge’s appointment of the second judge. However, we find
errors in the order after trial and the denial of the County’s
motion for new trial, and we reverse, and remand. We conclude
that because the County retained a right-of-way in the vacated
road, it had a duty to exercise such degree of care as would
be exercised by a reasonable county under the circumstances.
The district court erred when it concluded that the County had
a “duty” to maintain the vacated road and based its negligence
determination in favor of the appellees on its erroneous deter-
mination that the County breached its “duty” to maintain the
road. The central issue in the case was whether the County
met its obligations relative to the warning sign it had cho-
sen to erect. The district court erred when it determined that
the issue regarding the warning sign was a “non-issue.” We
reverse the judgment in favor of the appellees and remand the
cause to the district court with directions to find whether the
County had actual or constructive notice that its warning sign
was down on the date of the accident and whether the County
had reasonable time to correct the problem. These findings will
determine whether the County retained sovereign immunity, as
the County claims under § 13-910(9).
reversed And remAnded With directions.
heAvicAn, C.J., not participating.