S-21-0288 Donald Clark and Kimberly Clark v. Sargent Irrigation District, a political subdivision, and Doug Kriss, an employee of Sargent Irrigation District [appellants]
District court for Custer County, Honorable Karin L. Noakes
Attorneys: Nicholas R. Norton and Nicholas J. Ridgeway (Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O.) for appellees --- Jared J. Krejci (Smith, Johnson, Allen, Connick & Hansen) for appellants;
Civil: Political Subdivision Tort Claims Act (PSTCA)
Proceedings below: District court denied motion for summary judgment, finding discretionary function exception did not apply.
Issues: The district court erred in (1) determining Appellees’ noncompliance with the PSTCA, in particular the Neb. Rev. Stat. §13-906 requirement that Appellees wait until Appellant Sargent makes a final disposition of their claim before filing suit or otherwise wait at least six months from making the claim before filing suit, did not bar Appellees’ claims; (2) determining it had subject matter jurisdiction over this action despite Appellees’ claims being barred by the discretionary function or duty exception to the PSTCA; and (3) failing to grant summary judgment in favor of Appellants on the basis of sovereign immunity, the district court’s lack of subject matter jurisdiction, and Appellees’ noncompliance with Neb. Rev. Stat. §13-906.
Facts: Sargent Irrigation District is a political subdivision, and Doug Kriss is its employee. In July 2019, Kriss sprayed a herbicide on trees adjacent to real estate owned by Donald and Kimberly Clark in Custer County.
On June 29, 2020, the Clarks submitted a claim to Sargent under the Political Subdivision Tort Claims Act alleging Kriss negligently mis-used and over-applied the herbicide, resulting in damage to a corn crop that was growing on their real estate. They further alleged Sargent negligently supervised and trained Kriss. Sargent’s Board of Directors addressed the claim at a meeting in July 2020, and minutes from the meeting show the Board agreed to not settle the claim and to follow advice of their insurance company. On September 1, the Clarks filed this lawsuit in district court.
After the lawsuit was filed, Sargent filed a motion to dismiss, which was subsequently converted into a motion for summary judgment. The motion alleged the court lacked subject matter jurisdiction due to the Clarks’ failure to comply with the requirements of the PSTCA and because the Clarks’ claims fell within the discretionary function exception to the PSTCA. The court denied the motion for summary judgment, and in doing so expressly ruled only on the discretionary function exception argument.
Sargent appeals. It challenges the finding that the discretionary function exemption does not apply and also argues the court should have found the Clarks failed to comply with the procedural requirements of the PSTCA because they filed suit before final disposition of the claim. In response, the Clarks contend the district court correctly found the discretionary function exception did not apply. And they argue their compliance with the procedural requirements of the PSTCA was not an issue presented to the district court.