- Associated Press - Friday, July 7, 2017

LINCOLN, Neb. (AP) - Washington County can’t be sued for the death of a quarry worker who drowned on the job during the 2011 Missouri River flood, the Nebraska Supreme Court ruled Friday.

The high court ruling upheld a Washington County District Court’s finding that the county is protected by sovereign immunity.

James McGauley was killed on June 9, 2011, when the dump truck loaded with rock he was driving pulled onto a soft shoulder on a county road being built up to hold back floodwater. The shoulder collapsed, causing the truck to flip upside down into the floodwaters below. McGauley, who was part of a crew working for Martin Marietta Materials to raise the county-owned road that led to the quarry, drowned in the accident.

Washington County officials testified that they had given the company oral permission to do the work, under the condition that the company accept responsibility for problems with it. Company officials disputed that claim.

McGauley’s wife sued the county and the company on behalf of her husband’s estate. She appealed when the lower court dismissed Washington County from the lawsuit.

The high court noted that Marietta drivers were advised during daily safety meetings that the softness of the shoulders increased the probability of collapse and that drivers were told to stay off the shoulders. It also noted McGauley was among those warned about the danger at a safety meeting the day of his death.

The county, Justice Max Kelch wrote, was not involved in the effort to build up the road.

“We find that the county’s decision to allow Marietta to build up the road was a discretionary function, not subject to the Political Subdivision Tort Claims Act,” Kelch wrote for the court.

Neither attorneys for McGauley’s estate nor Washington County immediately returned messages Friday seeking comment.

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