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Blaser v. County of Madison

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Wednesday, March 5, 2014

S-13-0764, Larry Blaser, Terry McCaw and Patricia McCaw (Appellants) v. County of Madison, Nebraska, A Political Subdivision of the State of Nebraska

Madison County, Judge Robert B. Ensz

Attorneys: Todd B. Vetter (Fitzgerald Vetter & Temple) (Appellants) --- Vincent Valentino, Brandy Johnson (Appellee)

Civil: Political Subdivisions Tort Claims Act

Proceedings below: A previous appeal was determined by the Supreme Court. See Blaser v. County of Madison, 285 Neb. 290 (2013) (Reversed and remanded with directions). Upon remand, the court considered the arguments advanced on Plaintiff’s Motion for Leave to File Second Amended Complaint, which was denied. The trial court then conducted a trial on all issues as determined by the mandate of the Supreme Court.

Issues: 1. The District Court erred when it failed follow the mandate of the Supreme Court to address whether the County breached its duty by failing to correct a malfunction of a sign, which sign was not “functioning properly'” to notify the traveling public that the road had been vacated and contained dangers thereon. 2. The District Court erred when it limited its analysis of the defendants immunity only to the issue of whether the sign was up or down and whether the County had reasonable time to remedy the situation if the sign was down, when the mandate of the Supreme Court directed the District Court to determine whether the County had actual or constructive knowledge that the road closed sign at the north end of he vacated road was not functioning properly 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 sovereign immunity. 3. The District Court erred when it failed to follow the mandate to determine whether the sign was functioning properly. 4. The District Court erred by failing to follow the mandate of the Supreme Court when it stated that the propriety of the sign and compliance with the Manual on Uniform Traffic Control Devices was not an issue on remand. 5. The District Court erred when it found that the appellants were without legal remedy when in fact the District Court concluded: The County, "well prior to the accident, was aware that this vacated road was a hazard. It placed barricades at the south end of the mile road, but had placed a single warning sign, non-regulatory, at the north end. Although the County had no duty to repair and maintain the road, it knew that drivers continued to enter that road from the north. Nevertheless, it was generally unresponsive to complaints concerning the road other than to replace signs (Exhibit 38 to Exhibit 4), and now chooses to stand on the sovereign immunity to which it is entitled. This appears to be a case of a wrong by the county without a legal remedy by the plaintiff." 6. The District Court erred when it failed to grant appellants the right to amend their First Amended Complaint following remand of the case. 

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