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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
Donald Clark and Kimberly Clark,
appellees, v. Sargent Irrigation District,
a political subdivision, and Doug Kriss,
an employee of Sargent Irrigation
District, appellants.
___ N.W.2d ___
Filed March 11, 2022. No. S-21-288.
1. Political Subdivisions Tort Claims Act: Appeal and Error. Whether
a plaintiff’s negligence claims are precluded by an exemption to the
Political Subdivisions Tort Claims Act is a question of law for which
an appellate court has a duty to reach its conclusions independent of the
conclusions reached by the district court.
2. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s ruling on a motion for summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party
and drawing all reasonable inferences in that party’s favor.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
4. Summary Judgment: Final Orders: Legislature: Appeal and Error.
The general rule is that an order denying summary judgment is not a
final, appealable order. But the Legislature carved out a limited excep-
tion to this general rule when it enacted Neb. Rev. Stat. § 25-1902(1)(d)
(Cum. Supp. 2020) to create a new category of final orders for purposes
of appeal.
5. Statutes: Legislature: Intent. To discern the meaning of a statute,
courts 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; it is the court’s
duty to discover, if possible, the Legislature’s intent from the statutory
text itself.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
6. Statutes: Legislature. When the Legislature uses legal terms of art in
statutes, such terms should be construed and understood according to
their accepted legal meaning.
7. Summary Judgment: Final Orders: Immunity. The plain text of Neb.
Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2020) sets out two requirements
which must be satisfied for an order to be final: (1) The order must
deny a motion for summary judgment, and (2) the summary judgment
motion must be based on either the assertion of sovereign immunity or
the immunity of a government official.
8. Immunity: Words and Phrases. “Sovereign immunity” is a legal term
of art referring to the common-law doctrine of sovereign immunity.
Under that doctrine, a state’s immunity from suit is recognized as a fun-
damental aspect of sovereignty.
9. Immunity: Jurisdiction. The doctrine of sovereign immunity is, by its
nature, jurisdictional.
10. Immunity: Constitutional Law: States: Political Subdivisions:
Legislature. The sovereign immunity of the State and its political sub-
divisions is preserved in Neb. Const. art. V, § 22. This constitutional
provision is not self-executing, and no suit may be maintained against
the State or its political subdivisions unless the Legislature, by law, has
so provided.
11. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
Waiver: Legislature. Through enactment of the Political Subdivisions
Tort Claims Act and the State Tort Claims Act, the Legislature has
allowed a limited waiver of sovereign immunity with respect to some,
but not all, types of tort claims.
12. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
Waiver: Jurisdiction: Dismissal and Nonsuit. Both the State Tort
Claims Act and the Political Subdivisions Tort Claims Act expressly
exempt certain claims from the limited waiver of sovereign immunity.
And because the statutory exemptions identify those tort claims for
which the sovereign retains immunity from suit, when an exemption
applies, the proper remedy is to dismiss the claim for lack of subject
matter jurisdiction.
13. Political Subdivisions Tort Claims Act: Tort Claims Act: Summary
Judgment: Immunity: Final Orders. When a motion for summary
judgment asserts that the plaintiff’s claim falls within one or more
of the statutory exemptions under the State Tort Claims Act or the
Political Subdivisions Tort Claims Act, the motion is based on the
assertion of sovereign immunity within the meaning of Neb. Rev. Stat.
§ 25-1902(1)(d) (Cum. Supp. 2020).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
14. States: Political Subdivisions: Immunity. The doctrine of sovereign
immunity is not implicated by every affirmative defense which may be
available to a State or political subdivision in response to a lawsuit.
15. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
Notice: Jurisdiction. The presuit claim procedures under the Political
Subdivisions Tort Claims Act and the State Tort Claims Act are not stat-
utes in derogation of sovereign immunity, but, rather, they are admin-
istrative in nature, intended to give the government notice of a recent
tort claim so that it can investigate and, if appropriate, resolve the claim
before suit is commenced. The presuit claim presentment requirements
are procedural conditions precedent to commencing a tort action against
the government in district court; they are not jurisdictional.
16. Political Subdivisions Tort Claims Act: Tort Claims Act: Immunity:
Jurisdiction. A plaintiff’s failure to comply with the presuit claim
procedures may be asserted as an affirmative defense to avoid liability
in an action brought under the State Tort Claims Act or the Political
Subdivisions Tort Claims Act, but the administrative requirements are
not jurisdictional and do not bear directly on the question of sover-
eign immunity.
17. Political Subdivisions Tort Claims Act: Tort Claims Act: Summary
Judgment: Final Orders: Immunity. When the State or a political
subdivision moves for summary judgment asserting the failure to com-
ply with the presuit claim procedures of the State Tort Claims Act or
the Political Subdivisions Tort Claims Act, the motion is not based on
the assertion of sovereign immunity for purposes of Neb. Rev. Stat.
§ 25-1902(1)(d) (Cum. Supp. 2020).
18. Summary Judgment: Final Orders: Immunity. To satisfy the final
order requirement under Neb. Rev. Stat. § 25-1902(1)(d) (Cum. Supp.
2020) based on the assertion of sovereign immunity, the motion for
summary judgment must do more than merely reference sovereign
immunity; the nature and substance of the motion must actually present
a claim of sovereign immunity.
19. Final Orders: Jurisdiction: Appeal and Error. While an appellate
court can reverse, vacate, or modify a final order under Neb. Rev. Stat.
§ 25-1902(1)(d) (Cum. Supp. 2020), it cannot address issues that do not
bear on the correctness of the final order upon which its appellate juris-
diction is based.
20. Political Subdivisions Tort Claims Act: Liability. Under the discre-
tionary function exemption of the Political Subdivisions Tort Claims
Act, the performance or nonperformance of a discretionary function
cannot be the basis of tort liability.
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311 Nebraska Reports
CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
21. Political Subdivisions Tort Claims Act. A court engages in a two-step
analysis to determine whether the discretionary function exemption
to the Political Subdivisions Tort Claims Act applies. First, the court
must consider whether the action is a matter of choice for the acting
employee. This inquiry is mandated by the language of the statutory
exemption, because conduct cannot be discretionary unless it involves
an element of judgment or choice. Second, if the court concludes that
the challenged conduct involved an element of judgment, it must then
determine whether that judgment is the kind the discretionary function
exemption was designed to shield.
22. ____. The discretionary function exemption of the Political Subdivisions
Tort Claims Act will not apply when a statute, regulation, or policy spe-
cifically prescribes a course of action for an employee to follow, because
in that event, the employee has no rightful option but to adhere to the
directive. And if the employee’s conduct cannot appropriately be the
product of judgment or choice, then there is no discretion in the conduct
for the discretionary function exemption to protect.
Appeal from the District Court for Custer County: Karin L.
Noakes, Judge. Affirmed in part, and in part dismissed.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellants.
Nicholas R. Norton and Nicholas J. Ridgeway, of Jacobsen,
Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
In this negligence action, landowners allege that a politi-
cal subdivision’s employee negligently mixed and overapplied
an off-label herbicide mixture, causing damage to their corn
crop. After the district court denied the political subdivi-
sion’s motion for summary judgment, the political subdivision
filed this interlocutory appeal pursuant to Neb. Rev. Stat.
§ 25-1902(1)(d) (Cum. Supp. 2020), assigning two primary
errors. We conclude that § 25-1902(1)(d) confers appellate
jurisdiction to review one of the assigned errors, but not the
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
other. We therefore dismiss that portion of the appeal over
which we lack jurisdiction, and we otherwise affirm.
BACKGROUND
The Sargent Irrigation District (SID) is a political sub-
division in Custer County, Nebraska. On July 3, 2019, SID
employee Doug Kriss prepared a mixture of herbicides and
sprayed it on several trees along a canal. At the time, Kriss
was licensed as a noncommercial applicator under Nebraska’s
Pesticide Act. 1
Donald Clark and Kimberly Clark own property in Custer
County near the canal where Kriss sprayed the herbicide mix-
ture. In July 2019, the Clarks began to notice damage to their
corn crop. They suspected the damage was caused by the her-
bicide mixture used by Kriss.
On June 29, 2020, the Clarks’ attorney submitted a writ-
ten claim to the SID pursuant to the Political Subdivisions
Tort Claims Act (PSTCA). 2 The claim alleged that on July 3,
2019, Kriss prepared a herbicide mixture using “one quart of
2-4-D, one cup of crop oil, and 25 gallons of water.” Kriss
then added this mixture to a tank which had not been prop-
erly rinsed out from a prior use and contained “approximately
three gallons” of Roundup herbicide. The claim described
this as an “improper mixture of herbicides,” and it alleged
that Kriss then overapplied the mixture to the trees along the
canal. When the Clarks noticed damage to their corn, they
obtained opinions from two agronomists that the crop damage
was caused by “the off-label application and overapplication
of a herbicide” mixture by the SID, which drifted onto the
Clarks’ property causing damage to 9,673 bushels of corn.
Attached to the claim was a written statement signed by Kriss
and the SID’s general manager. The statement admitted that
the sprayer Kriss used to apply the herbicide mixture had not
1
Neb. Rev. Stat. §§ 2-2622 to 2-2659 (Reissue 2012 & Cum. Supp. 2020).
2
Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012 & Cum. Supp. 2020).
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CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
been properly rinsed out before use and that as a result, the
herbicide mixture applied to the trees contained 3 gallons of
Roundup. The statement also acknowledged that Kriss may
have overapplied the mixture.
On July 7, 2020, the SID’s board of directors held a regu-
lar monthly meeting. The minutes from the SID board meet-
ing state:
[The SID’s general manager] presented a letter from the
[SID’s attorney] with a legal recommendation at this
time not to settle with [the] Clark[s] on the claim and
not to overrule the opinion of the insurance adjuster.
[It was] moved and seconded . . . to follow the [SID’s]
attorney’s recommendation on the Clark claim. . . . The
motion carried.
On September 1, 2020, the Clarks filed this negligence
action against the SID and Kriss in the district court for Custer
County. The complaint alleged that Kriss, acting in his capac-
ity as an employee of the SID, was negligent in (1) using an
off-label mixture of “2-4-D” and Roundup which was “not in
accordance with the herbicides’ label instructions,” (2) over
applying the off-label mixture, and (3) failing to apply the mix-
ture in a reasonable and prudent manner. It alleged the SID was
vicariously liable for Kriss’ negligence and was independently
negligent for failing to properly train and supervise Kriss. The
complaint alleged that before filing suit, the Clarks submitted
a written claim to the SID on June 29, 2020, and that the SID
made a final disposition denying the claim on July 7.
The SID and Kriss moved to dismiss the complaint, cit-
ing two grounds: (1) The Clarks “fail[ed] to comply with the
requirements of the [PSTCA],” and (2) the Clarks’ claims
“fall within the discretionary function or duty exception to
the [PSTCA].” The motion to dismiss was later converted to a
motion for summary judgment.
At the hearing on the motion, three exhibits were offered
and received without objection. The defense offered the
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
affidavit of the SID’s manager, which had as an attachment a
copy of the minutes from the July 7, 2020, SID board meet-
ing. The Clarks offered two exhibits: (1) a certified copy of
their complaint with attachments and (2) an affidavit from the
Clarks’ attorney attaching a copy of Kriss’ license as a non-
commercial pesticide applicator.
After receiving the evidence, the court heard arguments from
the parties. Defense counsel’s primary argument was that the
Clarks’ claim was barred by the PSTCA’s discretionary function
exemption. 3 In response, the Clarks argued that the discretion-
ary function exemption was inapplicable because Nebraska’s
Pesticide Act did not give the SID or Kriss discretion to mix,
use, or apply herbicides in a manner inconsistent with its label-
ing. The court took the matter under advisement.
In an order entered March 8, 2021, the court denied the
motion for summary judgment. It limited its analysis to the
applicability of the discretionary function exemption, finding
that the SID and Kriss had abandoned any other theory. The
court concluded that the SID and Kriss were not entitled to
summary judgment based on the discretionary function exemp-
tion, citing to § 2-2643.01 of Nebraska’s Pesticide Act, which
provides in relevant part:
A license holder shall not:
(1) Make a pesticide recommendation or use a pesticide
in a manner inconsistent with the pesticide’s labeling or
with the restrictions on the use of the pesticide imposed
by the state, the federal agency, or the federal act;
(2) Operate in a faulty, careless, or negligent manner.
Relying on this statute, and noting there was no factual dispute
that Kriss was a license holder under Nebraska’s Pesticide Act
or that he had overapplied an off-label herbicide mixture, the
court reasoned:
The discretionary function exemption does not apply
when a statute, regulation or policy specifically describes
3
See § 13-910(2).
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CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
a course of action. [Section 2-2643.01] prescribes a spe-
cific course of action. It requires license holders to use
a pesticide only according to its labeling. The law does
not allow a choice for Kriss and the challenged conduct
does not involve an element of judgment. Kriss was not
allowed to violate the statute.
The court therefore concluded that Kriss’ conduct in improp-
erly mixing and overapplying the herbicide mixture did not fall
within the discretionary function exemption, and it denied the
summary judgment motion. The SID and Kriss filed this timely
appeal, which we moved to our docket on our own motion. For
ease of reference, the remainder of our opinion will refer to the
appellants collectively as “the SID.”
ASSIGNMENTS OF ERROR
The SID assigns, consolidated and restated, that the dis-
trict court erred in denying its motion for summary judgment,
because (1) the discretionary function exemption applies to bar
the Clarks’ claims and (2) the Clarks did not comply with the
“final disposition” requirements of the PSTCA.
STANDARD OF REVIEW
[1] Whether a plaintiff’s negligence claims are precluded by
an exemption to the PSTCA is a question of law for which an
appellate court has a duty to reach its conclusions independent
of the conclusions reached by the district court. 4
[2] An appellate court reviews the district court’s ruling on a
motion for summary judgment de novo, viewing the record in
the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor. 5
4
Mercer v. North Central Serv., 308 Neb. 224, 953 N.W.2d 551 (2021).
5
See Waldron v. Roark, 298 Neb. 26, 902 N.W.2d 204 (2017). Accord
Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016) (appellate court
reviews de novo whether party is entitled to dismissal of claim based on
immunity, drawing all reasonable inferences for nonmoving party).
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CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
ANALYSIS
Appellate Jurisdiction
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. 6
[4] The SID seeks interlocutory appellate review of an order
denying a motion for summary judgment. The general rule is
that an order denying summary judgment is not a final, appeal-
able order. 7 But in 2019, in response to our opinion in E.D. v.
Bellevue Pub. Sch. Dist., 8 the Legislature carved out a limited
exception to this general rule and amended § 25-1902 to cre-
ate a new category of final orders for purposes of appeal. 9
Under § 25-1902(1)(d), a final order now includes “[a]n order
denying a motion for summary judgment when such motion is
based on the assertion of sovereign immunity or the immunity
of a government official.”
We have issued three opinions relying on § 25-1902(1)(d)
as the basis for our appellate jurisdiction: Great Northern Ins.
Co. v. Transit Auth. of Omaha (Great Northern II ), 10 Mercer v.
North Central Serv., 11 and Great Northern Ins. Co. v. Transit
Auth. of Omaha (Great Northern I ). 12 In each case, the parties
characterized the summary judgment motion at issue as being
6
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906
(2016).
7
See, e.g., Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).
8
E.D. v. Bellevue Pub. Sch. Dist., 299 Neb. 621, 909 N.W.2d 652 (2018)
(overruling prior cases which relied on collateral order doctrine to autho
rize interlocutory appeals from orders denying sovereign immunity).
9
See 2019 Neb. Laws, L.B. 179, § 1.
10
Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958
N.W.2d 378 (2021).
11
Mercer, supra note 4.
12
Great Northern Ins. Co. v. Transit Auth. of Omaha, 305 Neb. 609, 941
N.W.2d 497 (2020).
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CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
based on the assertion of sovereign immunity, and no one
challenged that characterization. Consequently, we have not
yet analyzed the circumstances under which a summary judg-
ment motion will satisfy the requirements of § 25-1902(1)(d).
We consider that question now as it regards “the assertion
of sovereign immunity,” and we ultimately conclude that
§ 25-1902(1)(d) applies more narrowly than our prior opinions
might suggest.
[5,6] Before turning to the language of the statute, we
review familiar principles of statutory construction. To discern
the meaning of a statute, courts 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, ordi-
nary, and popular sense; it is our duty to discover, if possible,
the Legislature’s intent from the statutory text itself. 13 When
the Legislature uses legal terms of art in statutes, such terms
should be construed and understood according to their accepted
legal meaning. 14
[7] The plain text of § 25-1902(1)(d) sets out two require-
ments which must be satisfied for an order to be final: (1) The
order must deny a motion for summary judgment, and (2) the
summary judgment motion must be based on either “the asser-
tion of sovereign immunity” or “the immunity of a government
official.” In this interlocutory appeal, there is no question the
district court’s order denied the SID’s motion for summary
judgment. And because no party contends the SID’s motion
was based on “the immunity of a governmental official,” our
appellate jurisdiction turns on whether the SID’s motion was
based on “the assertion of sovereign immunity.” We limit our
statutory analysis accordingly.
[8,9] “Sovereign immunity” is a legal term of art referring
to the common-law doctrine of sovereign immunity. Under
13
See State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021).
14
See, Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (2021); State ex rel.
Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924 N.W.2d 664
(2019).
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CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
that doctrine, a state’s immunity from suit is recognized as a
fundamental aspect of sovereignty. 15 The doctrine of sovereign
immunity is, by its nature, jurisdictional. 16
[10] The sovereign immunity of the State and its political
subdivisions is preserved in Neb. Const. art. V, § 22, which
provides: “The state may sue and be sued, and the Legislature
shall provide by law in what manner and in what courts suits
shall be brought.” We have long held that this constitutional
provision is not self-executing and that no suit may be main-
tained against the State or its political subdivisions unless the
Legislature, by law, has so provided. 17
[11,12] Through enactment of the PSTCA and the State
Tort Claims Act (STCA), the Legislature has allowed a lim-
ited waiver of sovereign immunity with respect to some, but
not all, types of tort claims. 18 Both the STCA and the PSTCA
expressly exempt certain claims from the limited waiver of
sovereign immunity. 19 And because the statutory exemptions
identify those tort claims for which the sovereign retains
immunity from suit, we have long held that when an exemption
under the STCA or the PSTCA applies, the proper remedy is to
dismiss the claim for lack of subject matter jurisdiction. 20
[13] As such, we hold that when a motion for summary judg-
ment asserts that the plaintiff’s claim falls within one or more
of the statutory exemptions under the STCA or the PSTCA, the
motion is based on the assertion of sovereign immunity within
the meaning of § 25-1902(1)(d).
15
See, Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019);
State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d
903 (2018).
16
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
17
E.g., Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
18
See id.
19
See, § 13-910 (setting out claims exempt from PSTCA); Neb. Rev. Stat.
§ 81-8,219 (Cum. Supp. 2020) (setting out claims exempt from STCA).
20
See Edwards, supra note 17.
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CLARK v. SARGENT IRR. DIST.
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[14,15] But the doctrine of sovereign immunity is not impli-
cated by every affirmative defense which may be available to
a State or political subdivision in response to a lawsuit. An
example of this can be found in the presuit claim presentment
requirements under both the STCA and the PSTCA. 21 A State
or political subdivision can seek dismissal of a tort action for
failing to comply with these administrative requirements, 22 but
as we explained in Saylor v. State, 23 the presuit claim proce-
dures do not implicate either sovereign immunity or subject
matter jurisdiction:
The presuit claim procedures under the PSTCA and
the STCA are not statutes in derogation of sovereign
immunity, but, rather, they are administrative in nature,
intended to give the government notice of a recent tort
claim so [that] it can investigate and, if appropriate,
resolve the claim before suit is commenced. Unlike stat-
utes in derogation of sovereign immunity, the presuit
claim procedures do not identify the particular tort claims
for which the State has conditionally waived its sover-
eign immunity and consented to suit, nor do they identify
the tort claims the State has exempted from that waiver.
Instead, the presuit claim presentment requirements are
procedural conditions precedent to commencing a tort
action against the government in district court; they are
not jurisdictional.
[16] Our recent cases illustrate that while a plaintiff’s fail-
ure to comply with the presuit claim procedures may be
asserted as an affirmative defense to avoid liability in an action
brought under the STCA or the PSTCA, 24 the administrative
21
§ 13-905 (setting out presuit claim presentment requirements under
PSTCA); Neb. Rev. Stat. § 81-8,212 (Reissue 2014) (setting out presuit
claim presentment requirements under STCA).
22
See, e.g., Great Northern II, supra note 10.
23
Saylor v. State, 306 Neb. 147, 162-63, 944 N.W.2d 726, 736-37 (2020).
24
See Great Northern II, supra note 10.
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r equirements are not jurisdictional, 25 and thus do not bear
directly on the question of sovereign immunity. 26
[17] As such, we hold that when the State or a political sub-
division moves for summary judgment asserting the failure to
comply with the presuit claim procedures of the STCA or the
PSTCA, the motion is not “based on the assertion of sovereign
immunity” for purposes of § 25-1902(1)(d). We acknowledge
there is tension between this holding and our recent opinions
in Great Northern I 27 and Great Northern II. 28
In Great Northern I, the city moved for summary judgment,
asserting the plaintiff had not complied with the notice require-
ments under the PSTCA. The district court denied summary
judgment, and the city appealed from that ruling, arguing that
because the presuit notice requirements were not met, the city
“never waived sovereign immunity.” 29 The Nebraska Court
of Appeals summarily dismissed the appeal after concluding
the order denying summary judgment was interlocutory and
thus not a final order. We granted further review to consider
the city’s contention that the recent amendments to § 25-1902
rendered the order denying summary judgment a final, appeal-
able order.
In Great Northern I, no one challenged the city’s contention
that the failure to comply with the presuit notice requirements
implicated sovereign immunity, and we did not examine that
issue. We focused instead on the issue presented, which was
whether the new final order provisions in § 25-1902(1)(d) rep-
resented a substantive or a procedural change to that statute.
We concluded the statutory changes were procedural in nature,
and thus governed all appeals pending on and after the effec-
tive date of the statutory amendment. Because the city had
25
Id.; Saylor, supra note 23.
26
Id.
27
Great Northern I, supra note 12.
28
Great Northern II, supra note 10.
29
Great Northern I, supra note 12, 305 Neb. at 611, 941 N.W.2d at 499.
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filed its notice of appeal after the effective date of the statute,
we concluded the new final order provisions governed the
appeal; we therefore reversed the Court of Appeals’ dismissal
and remanded the matter for further appellate proceedings.
Once the appellate briefs were submitted, we moved the case
back to our docket, resulting in our decision on the merits in
Great Northern II. 30
But we did not examine, in either Great Northern I or
Great Northern II, whether the city had correctly character-
ized its summary judgment motion as one which was based
on the assertion of sovereign immunity. In retrospect, and
with the benefit of our analysis in Saylor, which was decided
2 months after Great Northern I, it is apparent that despite
the city’s characterization, its motion did not actually assert a
claim of sovereign immunity, but, rather, asserted the affirma-
tive defense that plaintiffs had not complied with the presuit
notice procedures. Thus, to the extent either Great Northern
I or Great Northern II can be read to suggest that a motion
for summary judgment based on the failure to comply with
the PSTCA’s presuit procedures is one “based on the assertion
of sovereign immunity” for purposes of § 25-1902(1)(d), that
reading is expressly disapproved. 31
[18] We now hold that to satisfy the final order requirement
under § 25-1902(1)(d) based on the assertion of sovereign
immunity, the motion for summary judgment must do more
than merely reference sovereign immunity; the nature and sub-
stance of the motion must actually present a claim of sovereign
immunity. To hold otherwise would permit litigants to create
appellate jurisdiction simply by casting their claim as one
implicating sovereign immunity.
Applying the foregoing jurisdictional analysis to the pres-
ent interlocutory appeal, we conclude that one of the SID’s
30
Great Northern II, supra note 10.
31
See Saylor, supra note 23.
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CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
assigned errors is reviewable under § 25-1902(1)(d), but the
other is not. We have appellate jurisdiction to review the SID’s
assignment that the court erred in denying summary judgment
based on the applicability of the discretionary function exemp-
tion, because that aspect of the SID’s motion was based on the
assertion of sovereign immunity.
[19] But the SID also assigns error to the court’s refusal to
grant summary judgment based on a failure to comply with
the “final disposition” requirement under the PSTCA. That
procedural requirement is found in § 13-906 and is one of the
presuit claim procedures under the PSTCA. 32 In their appel-
late briefing, the parties dispute whether the SID even raised
the final disposition issue before the district court. We do not
address that issue, however, because even if the issue was
properly presented, we would lack jurisdiction to review it
under § 25-1902(1)(d). As already discussed, summary judg-
ment motions asserting the failure to comply with the presuit
claim procedures are not “based on the assertion of sovereign
immunity” for purposes of § 25-1902(1)(d). While an appel-
late court can reverse, vacate, or modify a final order under
§ 25-1902(1)(d), it cannot address issues that do not bear on
the correctness of the final order upon which its appellate juris-
diction is based. 33
We therefore dismiss the SID’s second assignment of error
for lack of appellate jurisdiction and limit our interlocutory
appellate review to a single issue: whether the district court
erred in denying the SID’s summary judgment motion based on
the discretionary function exemption.
No Error in Denying Summary Judgment Based
on Discretionary Function Exemption
In connection with its summary judgment motion, the SID
did not dispute that Kriss mixed or combined herbicides
32
See id.
33
State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
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CLARK v. SARGENT IRR. DIST.
Cite as 311 Neb. 123
in a manner inconsistent with their labels. Nor did it dispute
that he overapplied the off-label mixture when spraying the
trees. Instead, the SID argued that Kriss “ha[d] discretion with
regard to [the] use of herbicides” 34 and therefore, the discre-
tionary function exemption barred the Clarks’ claims.
[20] Under the discretionary function exemption, the
PSTCA shall not apply to “[a]ny claim based upon the exer-
cise or performance of or the failure to exercise or perform a
discretionary function or duty on the part of the political sub-
division or an employee of the political subdivision, whether
or not the discretion is abused.” 35 We have explained that
under this exemption, the performance or nonperformance of
a discretionary function cannot be the basis of liability under
the PSTCA. 36
[21] A court engages in a two-step analysis to determine
whether the discretionary function exemption to the PSTCA
applies. 37 First, the court must consider whether the action is a
matter of choice for the acting employee. 38 We have said this
inquiry is mandated by the language of the statutory exemp-
tion, because conduct cannot be discretionary unless it involves
an element of judgment or choice. 39 Second, if the court con-
cludes that the challenged conduct involved an element of
judgment, it must then determine whether that judgment is
34
Brief for appellants at 14.
35
§ 13-910(2).
36
See Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994). See,
also, Holloway, supra note 5 (state actor’s performance or nonperformance
of discretionary function cannot be basis for liability under STCA).
37
Mercer, supra note 4.
38
Id.
39
See Jasa, supra note 36. See, also, Berkovitz v. United States, 486 U.S.
531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988) (explaining that inquiring
into whether action is matter of choice for acting employee is mandated by
language of exception; conduct cannot be discretionary unless it involves
element of judgment or choice).
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CLARK v. SARGENT IRR. DIST.
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the kind the discretionary function exemption was designed
to shield. 40
The district court in this case denied the SID’s motion for
summary judgment after analyzing only the first inquiry. It
concluded the SID could not show that the challenged conduct
of improperly mixing and overapplying an off-label herbi-
cide involved a matter of choice or an element of judgment
on the part of Kriss. On our de novo review, we reach the
same conclusion.
[22] We have recognized that the discretionary function
exemption will not apply when a statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow, because in that event, the employee has no rightful
option but to adhere to the directive. 41 And if the employee’s
conduct cannot appropriately be the product of judgment or
choice, then there is no discretion in the conduct for the discre-
tionary function exemption to protect. 42
We agree with the district court’s conclusion that § 2-2643.01
prescribes the course of conduct Kriss was required to follow
when mixing and applying herbicides, and he thus had no
choice or option not to adhere to that directive. The alleg-
edly negligent conduct at issue was mixing or combining
herbicides in a manner inconsistent with their labels, and
then overapplying the off-label mixture. Section 2-2643.01 of
Nebraska’s Pesticide Act expressly prohibits license holders
like Kriss from using a pesticide “in a manner inconsistent
with the pesticide’s labeling” and from operating in a “careless,
or negligent manner.” The act defines “[p]esticide” to include
any “substance or mixture of substances intended for use as a
plant regulator, defoliant, or desiccant, including any biological
40
Mercer, supra note 4.
41
See, Jasa, supra note 36; Williams v. City of Lincoln, 27 Neb. App. 414,
932 N.W.2d 490 (2019). See, also, Berkovitz, supra note 39.
42
Berkovitz, supra note 39.
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CLARK v. SARGENT IRR. DIST.
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control agent.” 43 As such, the statutory definition of “pesticide”
includes herbicides. The stated purpose of the act is “to regu-
late, in the public interest, the labeling, distribution, storage,
transportation, use, application, and disposal of pesticides for
the protection of human health and the environment.” 44 The act
notes that while “pesticides are valuable to our state’s agricul-
tural production and to the protection of humans and the envi-
ronment from insects, rodents, weeds, and other forms of life
which may be pests,” it is “essential to the public health and the
welfare that pesticides be regulated to prevent adverse effects
on humans and the environment,” including “[c]rops or other
plants [that may be] injured by improper use of pesticides.” 45
Notably, the SID did not offer any regulation, policy, or ordi-
nance purporting to give the SID or its employees discretion
to mix herbicides in a manner inconsistent with the product’s
labeling. But even if it had, Nebraska’s Pesticide Act expressly
preempts any “ordinances and resolutions by political subdivi-
sions that prohibit or regulate any matter relating to the . . .
handling, use, application, or disposal of pesticides.” 46
The district court correctly concluded that § 2-2643.01
specifically prescribes the course of conduct to be followed
by license holders like Kriss when mixing and applying herbi-
cides, and as a result, Kriss had no choice but to adhere to that
course of conduct. Because Kriss had no discretion to exercise
with regard to the challenged conduct, the first inquiry of the
discretionary function test could not be satisfied and the district
court correctly denied summary judgment.
In its appellate brief, the SID generally acknowledges that
the Pesticide Act regulates the handling, use, and application
of pesticides and that it prohibits license holders like Kriss
43
§ 2-2624.
44
§ 2-2623.
45
Id.
46
§ 2-2625.
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CLARK v. SARGENT IRR. DIST.
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from using a pesticide in a manner inconsistent with its label-
ing. But the SID contends that the regulatory provisions of the
Pesticide Act “are not relevant [to the discretionary function
inquiry] unless they create private civil tort liability when they
are violated.” 47 This contention is meritless.
The principles of law governing whether a statute creates
a private right of action have no direct bearing on whether
the statute prescribes a course of conduct for purposes of the
discretionary function inquiry. Appellate courts in this state
have consistently looked to policy and procedure manuals, 48
municipal ordinances, 49 and statutes 50 when deciding whether
an actor’s conduct was a matter of choice for purposes of the
discretionary function exemption. In none of those cases did
it matter whether the ordinance or statute was also recognized
as creating a private right of action. Because the provisions
of Nebraska’s Pesticide Act governed Kriss’ conduct in mix-
ing, using, and applying the herbicide mixture, those provi-
sions are relevant to the discretionary function exemption
inquiry, regardless of whether the act creates a private right
of action.
On this record, the district court correctly concluded that
the SID did not, and cannot, satisfy the first inquiry under the
47
Brief for appellants at 16.
48
See, e.g., Mercer, supra note 4 (considering utility district’s procedures
and manuals in determining whether challenged conduct involved matter
of judgment for purposes of discretionary function exemption to PSTCA).
49
See, e.g., Williams, supra note 41 (considering municipal code and other
municipal provisions to determine whether challenged conduct involved
element of choice for purposes of discretionary function exemption
to PSTCA).
50
See, e.g., Holloway, supra note 5 (analyzing statute contained in Nebraska
Mental Health Commitment Act to determine whether challenged conduct
involved an element of choice under discretionary function exemption
to STCA); Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d
399 (2015) (considering pertinent traffic statute to determine whether
challenged conduct involved matter of discretion).
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CLARK v. SARGENT IRR. DIST.
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discretionary function exemption. The SID’s motion for sum-
mary judgment based on the discretionary function exemption
was properly denied.
CONCLUSION
For the foregoing reasons, we affirm the order of the dis-
trict court to the extent it denied summary judgment based on
the discretionary function exemption. Because that is the only
issue over which we have appellate jurisdiction, we dismiss the
remainder of this appeal.
Affirmed in part, and in part dismissed.
Miller-Lerman, J., not participating.