Thus, a state actor's performance or nonperformance of a discretionary function cannot be a basis of liability under the Act. 

A court engages in a two-step analysis to determine whether the discretionary function exception of the Act applies.  First, the court must consider whether the action is a matter of choice for the acting employee.  If the court concludes that the challenged conduct involves an element of judgment, it must then determine whether that judgment is of the kind that the discretionary function exception was designed to shield.

The parties rely on different statutes of the Nebraska Mental Health Commitment Act (MHCA) in support of their arguments concerning whether the decision to seek a mental health commitment of another is a matter of choice for the employee.  The court examined both statutes.

Ultimately, the court concluded that the decision whether to report to the county attorney that another person is thought to be mentally ill and dangerous falls under the discretionary function exception; thus, an exception to the State's waiver of sovereign immunity applied. It further concluded that the plaintiff failed to plead facts to state a claim against a State Contractor.  Accordingly, the district court did not err in dismissing the plaintiff's complaint, nor did it abuse its discretion in finding her motion to compel discovery to be moot.  It affirmed.

Citations omitted throughout article.  To read more about the facts and the analysis of the case; click here.