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Hedglin v. Esch

Court of Appeals of Nebraska

November 21, 2017

Casandra A. Hedglin, appellant,
v.
Jerry A. Esch, individually and in his representative capacity. And the City of Hastings, Nebraska, a political corporation and a nebraska political subdivision, appellees.

         1. Political Subdivisions Tort Claims Act: Judgments: Appeal and Error. In actions brought pursuant to the Political Subdivisions Tort Claims Act, the factual findings of the trial court will not be disturbed on appeal unless clearly wrong; however, questions of law are reviewed independently of the decision reached by the court below.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court.

         3. Motions to Dismiss: Rules of the Supreme Court: Summary Judgment: Pleadings. When matters outside the pleading are presented by the parties and accepted by the trial court with respect to a motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), the motion shall be treated as a motion for summary judgment and the parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by statute.

         4. Motions to Dismiss: Summary Judgment: Notice. The purpose of providing notice that a motion to dismiss has been converted to a motion for summary judgment is to give the party sufficient opportunity to discover and bring forward factual matters which may become relevant in the summary judgment context, as distinct from the dismissal context.

         5. Political Subdivisions Tort Claims Act: Waiver: Immunity. The Political Subdivisions Tort Claims Act reflects a limited waiver of governmental immunity and prescribes the procedure for maintenance of a suit against a political subdivision.

         [25 Neb.App. 307] 6. 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.

         7. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and against the waiver.

         8. Political Subdivisions Tort Claims Act: Words and Phrases. Personal injury, as used in the Political Subdivisions Tort Claims Act, is defined broadly to include every variety of injury to a person's body, feelings, or reputation.

         9. Political Subdivisions Tort Claims Act: Municipal Corporations: Notice. The primary purpose of Neb. Rev. Stat. § 13-905 (Reissue 2012) is to afford municipal authorities prompt notice of the accident and injury in order that an investigation may be made while the occurrence is still fresh and the municipal authorities are in a position to intelligently consider the claim and to allow it if deemed just or, in the alternative, to adequately protect and defend the public interest.

         10. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         11. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

         12. Actions: Political Subdivisions Tort Claims Act. The Political Subdivisions Tort Claims Act specifies various nonjudicial procedures which have been characterized as conditions precedent to the filing of a lawsuit, and a claimant's failure to follow these procedures may be asserted as an affirmative defense in an action brought under the act.

         13. Political Subdivisions Tort Claims Act. Under Neb. Rev. Stat. § 13-906 (Reissue 2012) of the Political Subdivisions Tort Claims Act, a claimant must file a tort claim with the governing body of the political subdivision before filing suit.

         14. Political Subdivisions Tort Claims Act: Time. If the governing body of a political subdivision has not made final disposition of the claim within 6 months after it is filed, the claimant may withdraw the claim and file suit.

         15. Political Subdivisions Tort Claims Act: Notice: Time. If a notice of a claim under the Political Subdivisions Tort Claims Act is withdrawn before expiration of the 6-month time period specified in Neb. Rev. Stat. § 13-906 (Reissue 2012), the result is the failure of a condition precedent to the filing of a lawsuit under the act.

         [25 Neb.App. 308] 16. Political Subdivisions Tort Claims Act: Time. Because compliance with the statutory time limits set forth in Neb. Rev. Stat. § 13-906 (Reissue 2012) can be determined with precision, the doctrine of substantial compliance has no application.

         17. ___: ___: The language of Neb. Rev. Stat. § 13-906 (Reissue 2012) explicitly provides that no suit can be brought in district court unless 6 months have passed without a ...


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