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Ecker v. E & A Consulting Group, Inc.

Supreme Court of Nebraska

March 22, 2019

Tom Ecker et al., appellants,
v.
E & A Consulting Group, Inc., ET AL., APPELLEES.

         1. Summary Judgment: Appeal and Error. In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

         3. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

         4. Appeal and Error. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.

         5. Trial: Waiver: Appeal and Error. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error

         6. Trial: Appeal and Error. An issue not presented to or decided on by the trial court is not an appropriate issue for consideration on appeal.

         7. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant's duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.

         8. Negligence: Proximate Cause: Words and Phrases. The proximate cause of an injury is that which, in a natural and continuous sequence, without any efficient intervening cause, produces the injury, and without which the injury would not have occurred.

          [302 Neb. 579] Appeal from the District Court for Sarpy County: William B. Zastera and Stefanie A. Martinez, Judges.

          Michael L. Storey and John M. Walker, of Lamson, Dugan & Murray, L.L.P., for appellants.

          Gregory C. Scaglione and John V. Matson, of Koley Jessen, PC, L.L.O., for appellee E & A Consulting Group, Inc.

          Gerald L. Friedrichsen and William M. Bradshaw, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellee City of La Vista.

          John A. Svoboda, of Gross & Welch, P.C., L.L.O., for appellee Sanitary Improvement District No. 237.

          Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Heavican, C.J.

         I. INTRODUCTION

         Tom Ecker, Ruth Ecker, Jim Sledge, and Rosemary Sledge own homes in La Vista, Nebraska. After those homes were flooded, they brought suit against E & A Consulting Group, Inc. (E&A), Sanitary Improvement District No. 237 (SID No. 237), the City of La Vista (City), and two other parties who have since been dismissed with prejudice from this litigation, alleging that the parties were negligent in various ways, which led to the flood damages suffered. The district court granted summary judgment in favor of E&A, SID No. 237, and the City. The Eckers and Sledges (collectively the homeowners) appeal. We moved this case to our docket, because it presents an issue of first impression regarding revisions to the statute allowing motions for summary judgment as set forth in Neb. Rev. Stat. § 25-1332 (Supp. 2017). We affirm.

         [302 Neb. 580] II. BACKGROUND

         1. Factual Background

         The homeowners are neighbors residing in the Cimarron Woods area of La Vista. Their homes are adjacent to each other, feature walkout basements, and have backyards abutting Applewood Creek. The Ecker home has a basement elevation of 1, 079.009 feet above sea level, ...


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