|||SUPREME COURT OF NEBRASKA
491 N.W.2d 42, 241 Neb. 759
|||October 23, 1992
|||LEROY BLITZKIE, APPELLANT,
STATE OF NEBRASKA, APPELLEE
|||SYLLABUS BY THE COURT
|||1. Tort Claims Act: Appeal and Error. On appeal to an appellate court
under the State Tort Claims Act, the findings of the trial court will not
be disturbed unless clearly wrong.
|||2. Tort Claims Act: Appeal and Error. Whether the allegations made by
a plaintiff constitute a cause of action under the State Tort Claims Act
or whether the allegations set forth claims which are precluded by the discretionary
function or misrepresentation exemptions are questions of law. Accordingly,
an appellate court has an obligation to reach its Conclusions on these questions
independent from the Conclusions reached by the trial court.
|||3. Tort Claims Act. The discretionary function or duty exemption in the
State Tort Claims Act extends only to the basic policy decisions made in
governmental activity, and not to ministerial activities implementing such
|||4. Tort Claims Act. Day-to-day management of businesses regularly requires
judgment as to which of a range of permissible courses is the wisest. Discretionary
conduct is not confined to the policy or planning level. It is the nature
of the conduct, rather than the status of the actor, that governs whether
the discretionary function exception applies to a given case.
|||Appeal from the District Court for Boyd County: Edward E. Hannon, Judge.
|||C.j. Gatz, of Jewell, Gatz, Collins, Dreier & Fitzgerald, and Lyle
Joseph Koenig for appellant.
|||Robert M. Spire, Attorney General, and John R. Thompson for appellee.
|||Hastings, C.j., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch,
|||The opinion of the court was delivered by: Hastings
|||Plaintiff, LeRoy Blitzkie, appeals the action of the district court, which
entered judgment in favor of the State of Nebraska in his suit for damages.
In its memorandum order, the district court held that any warnings which
plaintiff alleges the State failed to give as to the proximity of a pseudorabies
outbreak would have been a discretionary act for which the State enjoys
immunity under the State Tort Claims Act, Neb. Rev. Stat. § 81-8,209 et
seq. (Reissue 1981).
|||This is the third appearance of this case before the court. In State v.
Blitzkie, 216 Neb. 105, 342 N.W.2d 5 (1983), we reversed a summary judgment
in favor of the State because of the failure to give Blitzkie time to file
counteraffidavits, and in Blitzkie v. State, 228 Neb. 409, 422 N.W.2d 773
(1988), we again set aside a summary judgment in favor of the State because
of a waiver of jurisdictional defect by the State. This time, we affirm
the judgment of the district court.
|||Plaintiff was a farmer who raised certified SPF (specific pathogen-free)
hogs for breeding stock. In order to maintain certification, every 3 months
plaintiff's veterinarian would test a different 25 percent of his stock
for pseudorabies and brucellosis. In order to protect his herd from pseudorabies,
it was necessary for plaintiff to issue boots and coveralls to anyone coming
on the premises, followed by disinfecting of that clothing; to keep other
animals and wildlife away from the hogs; to keep the buildings clean; and
to avoid contact by outside trucks with his hog lots.
|||Around the first of April 1980, some of plaintiff's hogs became sick,
and approximately April 9, some of plaintiff's hogs were diagnosed as having
pseudorabies. A number of plaintiff's hogs died, including 10 "big
sows" and about 500 young pigs.
|||Shortly after the outbreak of the disease in plaintiff's herd, the plaintiff
learned of clinical diagnoses of pseudorabies in swine herds on several
farms in Boyd County during the months of February and March. At that time,
according to witness Dr. N.W. Kruse, the Nebraska Department of Agriculture
had no statutory authority to eradicate pseudorabies, but did have authority
and did, in the instances referred to, try to control the disease by quarantine.
No general notice was given to the public of any outbreak of pseudorabies,
but the State did have a practice of sending, every month between the first
and the fifth, a list of all current pseudorabies-quarantined herds to all
veterinarians practicing in the State of Nebraska, which included the plaintiff's
|||The Nebraska Department of Agriculture is granted certain powers and duties
by Neb. Rev. Stat. § 54-701 (Reissue 1988) as follows:
|||The Department of Agriculture shall be vested with the power and charged
with the duties of protecting the health of livestock in Nebraska, of determining
and employing the most efficient and practical means for the prevention,
suppression, control and eradication of dangerous, infectious, contagious
or otherwise transmissible diseases among domestic animals, and, to that
end, of placing in quarantine any county or part of any county, or any private
premises, or private or public stockyards, and of quarantining any domestic
animal or animals infected with such disease, or which have been, or are
suspected of having been, exposed to infection therefrom, and of killing
any animal so infected, and of regulating or prohibiting the arrival into
and departure from and movement within the state of animals infected with
such disease or exposed or suspected of having been exposed, to the cause,
infection or contagion therefrom, and at the cost of the owner, of detaining
any domestic animal found in violation of any departmental or statutory
regulation or prohibition and to promulgate, adopt and enforce such reasonable
rules and regulations as may be . . . proper . . . .
|||Plaintiff's petition filed against the State of Nebraska alleged knowledge
on the part of the State of the outbreak of pseudorabies, the negligent
failure of the State to notify the general public, and that as a proximate
result of that negligence the plaintiff suffered loss of his property.
|||Plaintiff assigns as error the findings of the trial court that the State
of Nebraska was immune from liability by reason of the discretionary function
exception contained in the State Tort Claims Act, the finding that the Department
of Agriculture had no duty to notify plaintiff of the outbreak of pseudorabies,
the finding that the State's failure to notify plaintiff was not a proximate
cause of plaintiff's loss, and the finding that plaintiff had failed to
prove with reasonable certainty the amount of his damages. Because we agree
with the district court that the duties imposed upon the State of Nebraska
were discretionary duties and therefore not the basis for liability on the
part of the State, we discuss only the first assignment of error, and we
|||On appeal to an appellate court under the State Tort Claims Act, the findings
of the trial court will not be disturbed unless clearly wrong. Kumar v.
Douglas County, 234 Neb. 511, 452 N.W.2d 21 (1990).
|||Whether the allegations made by a plaintiff constitute a cause of action
under the State Tort Claims Act or whether the allegations set forth claims
which are precluded by the discretionary function or misrepresentation exemptions
are questions of law. Accordingly, an appellate court has an obligation
to reach its Conclusions on these questions independent from the Conclusions
reached by the trial court. Marvin E. Jewell & Co. v. Thomas, 231 Neb.
1, 434 N.W.2d 532 (1989).
|||The Legislature specifically exempted from the State Tort Claims Act
|||claim based upon an act or omission of an employee of the state, exercising
due care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, 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 be abused.
|||(Emphasis supplied.) § 81-8,219(1)(a). As we have previously held, the
discretionary function or duty exemption in the State Tort Claims Act extends
only to the basic policy decisions made in governmental activity, and not
to ministerial activities implementing such policy decisions. See Wickersham
v. State, 218 Neb. 175, 354 N.W.2d 134 (1984).
|||The very letter of § 54-701 implies that the Department of Agriculture
has the discretion of "employing the most efficient and practical means"
in the control and prevention of livestock disease. The evidence is uncontroverted
that the Department of Agriculture did quarantine the affected animals,
in compliance with the statute, and in its discretion, notified the state's
veterinarians by way of newsletter. The method of notice and to whom the
notice would be sent were completely discretionary functions, and plaintiff's
claims that these activities were ministerial, rather than discretionary,
are without merit.
|||As recently as First Nat. Bank of Omaha v. State, ante p. 267, 241 Neb.
267, 488 N.W.2d 343 (1992), we were faced with a remarkably similar question
in principle. In that case, the Nebraska Department of Banking encouraged
First National Bank of Omaha not to sell stock in Security Bank and Trust
Company of Beatrice and First Security Savings of Beatrice, which stock
it held as collateral on some loans, but, rather, encouraged First National
to take over both of those institutions. First National rejected that proposal
and sent potential buyers notice that the stock would be sold.
|||In the meantime, the department received written notice from the Federal
Bureau of Investigation in regard to apparent fraudulent dealings involving
Security Bank. At no time did the department make First National aware of
|||Nevertheless, and shortly thereafter, a meeting was held with representatives
of First National, the department, and others, at which meeting the director
of the department proposed that First National acquire the stock of Security
Bank and Security Savings. Such an agreement was reached with apparently
disastrous results to First National.
|||The basis of First National's suit against the State of Nebraska was that
the department, by fostering and approving the agreement, undertook a self-imposed
duty to act with due care, but instead acted negligently, to First National's
|||In rejecting that argument, this court stated, "We specifically found
that while Neb. Rev. Stat. § 8-102 (Reissue 1991) and § 8-401 empower the
department to supervise and control banks and industrial loan and investment
companies, 'none of the statutes . . . requires the to execute any of its
authorized powers.'" First Nat. Bank of Omaha v. State, ante at 273,
488 N.W.2d at 347, citing Security Inv. Co. v. State, 231 Neb. 536, 437
N.W.2d 439 (1989).
|||The court in First Nat. Bank of Omaha v. State, ante at 275, 488 N.W.2d
at 348, quoting U.S. v. Gaubert, 499 U.S. 315 111 S. Ct. 1267, 113 L. Ed.
2d 335 (1991), stated the following:
|||"Day-to-day management of banking affairs, like the management of
other businesses, regularly require judgment as to which of a range of permissible
courses is the wisest. Discretionary conduct is not confined to the policy
or planning level. ' is the nature of the conduct, rather than the status
of the actor, that governs whether the discretionary function exception
applies in a given case.' Varig Airlines, supra, at 813, 104 S.Ct., at 2764."
111 S. Ct. at 1275. Thus, the Gaubert Court concluded operational level
decisions . . . are not necessarily outside the discretionary function exemption.
|||In the present case, the Department of Agriculture was charged with "employing
the most efficient and practical means for the prevention, suppression,
control and eradication of dangerous, infectious, contagious or otherwise
transmissible diseases among domestic animals, and, to that end, of placing
in quarantine any county or part of any county . . . and of quarantining
any domestic animal . . . ." § 54-701. In quarantining herds, the Department
of Agriculture followed those requirements to the letter and exercised its
discretion as to its other actions, which it was authorized and obligated
|||This case comes within the discretionary function exemption of the State
Tort Claims Act, and the judgment of the district court is affirmed.
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