Essink v. City of Gretna
901 N.W.2d 466
Neb. Ct. App.2017Background
- Homeowners on Meadow Lane experienced two sewer backups (July 23 and August 16, 2010) that flooded basements; City crews cleared blockages at different locations in the system after each event.
- Appellees (Essink, the Henrys, and the Fogeds) sued the City for inverse condemnation; later an amended complaint added negligence claims under the Political Subdivisions Tort Claims Act (Tort Claims Act).
- A jury found for appellees on inverse condemnation; the trial court dismissed some Tort Claims Act claims but held a bench trial on the Fogeds’ tort claim, finding they had filed a proper claim and awarding damages.
- The City appealed, arguing (inter alia) the inverse-condemnation claim should have been decided as a matter of law (directed verdict) and that the Fogeds failed to comply with the Tort Claims Act’s filing requirements.
- The Court of Appeals held the backups were not shown to be intended or foreseeably caused by the City’s exercise of eminent-domain power (no frequent/recurring events or knowledge of specific harm) and found the Fogeds’ hand-delivered cleaning bills did not constitute a written claim under the Tort Claims Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sewer backups constituted a taking/damage "for public use" (inverse condemnation) | Appellees: two backups caused by City sewer conditions amounted to a compensable taking/damage. | City: evidence shows only two isolated backups; no intent or foreseeable, recurring harm—directed verdict warranted. | Held for City: appellees failed threshold showing (intended or foreseeable public-use taking); directed verdict should have been granted; jury verdict vacated. |
| Whether the takings question was for the jury or the court | Appellees: fact question suitable for jury resolution. | City: ultimate takings determination is a question of law for the court. | Court did not decide because it disposed of case on directed-verdict grounds, but noted precedent that ultimate takings determination may be legal. |
| Whether the Fogeds’ hand-delivered cleaning bills satisfied Tort Claims Act content requirement (demand) | Fogeds: bills notified City and were sufficient to constitute a claim. | City: bills merely sought payment from Fogeds and did not demand relief or allege City liability; not a claim. | Held for City: bills lacked a demand for satisfaction or an allegation of City responsibility; not a claim under §13‑905; Tort Claims Act condition precedent unmet; dismissal required. |
| Whether the cleaning bills were delivered to the proper city official | Fogeds: delivery to a clerk’s office employee constituted presentment. | City: not presented to the official charged with claims, so not properly filed. | Court did not reach this issue after finding the bills did not constitute a claim. |
Key Cases Cited
- Henderson v. City of Columbus, 285 Neb. 482 (Neb. 2013) (inverse-condemnation threshold requires invasion intended or foreseeable from exercise of eminent-domain power)
- Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (U.S. 2012) (recurrent government-induced flooding can be compensable; intent/foreseeability relevant)
- Jessen v. Malhotra, 266 Neb. 393 (Neb. 2003) (Tort Claims Act written-claim requirement: claim must demand satisfaction of an obligation; substantial compliance standard explained)
- 6224 Fontenelle Blvd. v. Metropolitan Util. Dist., 22 Neb. App. 872 (Neb. Ct. App. 2015) (addresses whether takings question is one of law)
- Peterson v. Gering Irr. Dist., 219 Neb. 281 (Neb. 1985) (claim that merely alerts to a possible future claim, without demand, fails §13‑905 requirement)