Essink v. City of Gretna
25 Neb. Ct. App. 53
| Neb. Ct. App. | 2017Background
- Homeowners on Meadow Lane (Essink, the Henrys, and the Fogeds) experienced two sanitary sewer backups into their homes on July 23 and August 16, 2010; City crews located and cleared separate blockages each time (one near the homes, one several blocks away).
- The City’s routine: certain manholes were inspected daily (Meadow Lane manholes were not on that list before August); City performed jetting and later video inspection after the backups.
- Appellees filed a written Tort Claims Act submission in June 2011 and sued (inverse condemnation in Oct 2011; amended complaint adding Tort Claims Act negligence in Dec 2014).
- District court: summary judgment granted for City as to Essink and the Henrys’ Tort Claims Act claims; question remained whether the Fogeds’ hand-delivered cleaning bills to the city clerk constituted a timely statutory claim.
- Jury found for appellees on inverse condemnation; bench trial found Fogeds had filed a proper Tort Claims Act claim and that the City was negligent. City appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sewer backups constituted a compensable taking/damage for public use (inverse condemnation) | Appellees: two backups (close in time), evidence of sewer-condition problems (broken/offset pipe, roots) and City maintenance practices made backups foreseeable and thus a taking | City: backups were isolated (two events), caused by separate blockages at different locations; no evidence of frequent/recurring events or knowledge that damage at plaintiffs’ properties was foreseeable | Court held City entitled to directed verdict; backups did not meet threshold of taking for public use (no intention/foreseeability or recurring pattern) |
| Whether the court should have submitted takings question to jury (question of law vs. fact) | Appellees: factual dispute for jury whether taking occurred | City: ultimate takings determination is a question of law for the court | Court avoided deciding because it reversed on directed-verdict grounds; noted earlier authority finding taking is question of law but did not reach the issue further |
| Whether the Fogeds’ hand-delivered cleaning bills satisfied Tort Claims Act written-claim content requirements (demand requirement) | Fogeds: cleaning bills submitted to city clerk gave notice and constituted a claim | City: bills merely invoice the homeowners; they do not demand satisfaction or state relief sought, so they fail §13-905 content requirements | Court held the bills did not make a demand or state relief; not a compliant written claim — Fogeds’ Tort Claims Act claim must be dismissed |
| Whether the Fogeds delivered the bills to the proper city official (presentment requirement) | Fogeds: bills were delivered to city clerk’s office employee; thus presented | City: bills were not delivered to the official responsible for maintaining claims/records | Court did not decide this question because it found the bills failed on content/demand; remanded with directions to dismiss Fogeds’ Tort Claims Act claim |
Key Cases Cited
- Henderson v. City of Columbus, 285 Neb. 482 (Neb. 2013) (inverse-condemnation threshold requires showing invasion was intended or foreseeable result of authorized government action)
- Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (U.S. 2012) (recurrent or temporary government-induced flooding can be compensable; foreseeability/intention is relevant)
- Jessen v. Malhotra, 266 Neb. 393 (Neb. 2003) (Tort Claims Act written-claim must demand satisfaction of an obligation; mere notice can be inadequate)
- Peterson v. Gering Irr. Dist., 219 Neb. 281 (Neb. 1984) (claim insufficient where it merely warned of possible damages and made no demand)
- West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785 (Neb. 1988) (claim sufficient where letter expressly made a claim and demanded relief)
- 6224 Fontenelle Blvd. v. Metropolitan Util. Dist., 22 Neb. App. 872 (Neb. Ct. App. 2015) (addresses whether takings determination is for the court; cited for procedural posture though issued after trial)