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Essink v. City of Gretna

Court of Appeals of Nebraska

September 19, 2017

Rene Essink et al., appellees,
v.
City of Gretna, a municipal corporation, appellant.

         1. Constitutional Law: Appeal and Error. Constitutional interpretation is a question of law on which the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision by the trial court.

         2. Directed Verdict: Evidence. A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law.

         3. Political Subdivisions Tort Claims Act: Jurisdiction. While not a jurisdictional prerequisite, the filing or presentment of a claim to the appropriate political subdivision is a condition precedent to commencement of a suit under the Political Subdivisions Tort Claims Act.

         4. Directed Verdict: Appeal and Error. In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

         5. Directed Verdict: Evidence. A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law.

         6. Eminent Domain: Words and Phrases. Inverse condemnation is a shorthand description for a landowner suit to recover just compensation for a governmental taking of the landowner's property without the benefit of condemnation proceedings.

         [25 Neb.App. 54] 7. Eminent Domain: Property: Intent. Inverse condemnation has been characterized as an action or eminent domain proceeding initiated by the property owner rather than the public entity and has been deemed to be available where private property has actually been taken for public use without formal condemnation proceedings and where it appears that there is no intention or willingness of the taker to bring such proceedings.

         8. Constitutional Law: Eminent Domain: Damages. Because the governmental entity has the power of eminent domain, the property owner cannot compel the return of property taken; however, as a substitute, the property owner has a constitutional right to just compensation for what was taken.

         9. Constitutional Law: Eminent Domain: Words and Phrases. Under the Nebraska Constitution, the requirement that property was taken or damaged "for public use" means that the taking or damage must be the result of the governmental entity's exercise of the right of eminent domain.

         10. Eminent Domain: Damages. Not all damage to property by a governmental entity in the performance of its duties occurs as a result of the exercise of eminent domain.

         11. Eminent Domain: Damages: Proximate Cause: Proof. The initial question in an inverse condemnation case is not whether the actions of the governmental entity were the proximate cause of the plaintiff's damages. Instead, the initial question is whether the governmental entity's actions constituted the taking or damaging of property for public use. That is, it must first be determined whether the taking or damaging was occasioned by the governmental entity's exercise of its power of eminent domain. Only after it has been established that a compensable taking or damage has occurred should consideration be given to what damages were proximately caused by the taking or damaging for public use.

         12. Eminent Domain: Property: Proof. In order to meet the initial threshold that the property has been taken or damaged for public use, it must be shown that there was an invasion of property rights that was intended or was the foreseeable result of authorized governmental action.

         13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         14. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.

         15. Political Subdivisions Tort Claims Act: Notice. With regard to a claim's content, substantial compliance with the statutory provisions [25 Neb.App. 55] supplies the requisite and sufficient notice to a political subdivision under the Political Subdivisions Tort Claims Act.

         16. ___: ___ . The written claim required by the Political Subdivisions Tort Claims Act notifies a political subdivision concerning possible liability for its relatively recent act or omission, provides an opportunity for the political subdivision to investigate and obtain information about its allegedly tortious conduct, and enables the political subdivision to decide whether to pay the claimant's demand or defend the litigation predicated on the claim made.

         Appeal from the District Court for Sarpy County: Max Kelch, Judge, and Paul D. Merritt, Jr., Judge, Retired. Vacated in part, and in part reversed and remanded with directions.

          Thomas J. Culhane and Patrick R. Guinan, of Erickson & Sederstrom, PC, for appellant.

          Melanie J. Whittamore-Mantzios, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P, for appellees. Moore, Chief Judge, and Pirtle and Bishop, Judges.

          Pirtle, Judge.

         INTRODUCTION

         Rene Essink, Brandon Henry and Amanda Henry, and Michael Foged and Catherine Howard, now known as Catherine Foged (collectively appellees), brought an inverse condemnation action and a negligence action under the Political Subdivisions Tort Claims Act (the Tort Claims Act) against the City of Gretna (City) as a result of two sanitary sewer backups into their homes. A jury found in favor of appellees on the inverse condemnation claims and awarded damages. The trial court dismissed the negligence action under the Tort Claims Act as to Essink and the Henrys. Following a bench trial, the court found that the Fogeds had complied with the filing requirements of the Tort Claims Act and that the City negligently caused the backups and awarded damages. The City appeals from the judgment on the jury [25 Neb.App. 56] verdict and the trial court's order from the bench trial. On the inverse condemnation action, we conclude that the trial court should have granted a directed verdict in favor of the City, and therefore, we vacate the jury's verdict, and reverse the judgment of the trial court and remand the matter with directions to enter judgment in favor of the City. On the Fogeds' negligence action under the Tort Claims Act, we determine that the Fogeds did not comply with the filing requirements of the Tort Claims Act, and therefore, we reverse the trial court's order and remand the matter to the trial court with directions to dismiss.

         BACKGROUND

         The City has a wastewater collection system that collects sewage from residences and businesses and uses gravity to direct the collected sewage to a pumping station or treatment facility. Residents connect to the City's collection system through private service connections that run from their properties to the City's line.

         In July and August 2010, appellees all lived on Meadow Lane in Gretna, Nebraska. Their homes were located near the top of the gravitational line of the City's sewage collection system.

         On July 23, 2010, sewage from the City's collection system backed up into Essink's and the Fogeds' residences. Richard Andrews, the City's utility superintendent, responded and investigated by lifting the covers to the two manholes closest to the residences and checking the flow of water. He discovered that there was a blockage between the two manholes. Andrews used the City's sewer "jet" to clear the blockage. He then checked manholes down the gravitational line and observed that the collection system was clear and flowing. Andrews was unable to determine what caused the blockage. Andrews checked the manholes on Meadow Lane for several days after the July 23 backup to make sure the system was flowing, and he did not observe any further blockages or issues with the flow.

         [25 Neb.App. 57] On August 16, 2010, sewage from the City's collection system backed up into appellees' residences. Andrews responded again and investigated to determine where the blockage was located. He started by checking the manholes closest to the residences, which was where he had discovered the blockage on July 23. Andrews did not find a blockage between those manholes or any manholes on Meadow Lane. Andrews continued checking manholes down the gravitational line until he found the blockage several blocks away on Cherokee Drive. The City hired Utility Services Group (USG) to jet the line and clear the blockage. When the blockage was cleared, Andrews checked manholes down the gravitational line and observed that the ...


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