Essink v. City of Gretna
25 Neb. Ct. App. 53
| Neb. Ct. App. | 2017Background
- Residents on Meadow Lane (Essink, the Henrys, and the Fogeds) suffered two sewer backups on July 23 and August 16, 2010, that flooded their homes. The City of Gretna investigated and cleared blockages in different locations of the sewer line after each event.
- Appellees filed an inverse condemnation action (October 2011) and later amended to add negligence claims under Nebraska’s Political Subdivisions Tort Claims Act (December 2014).
- A jury found for appellees on inverse condemnation and awarded damages; the district court later found the Fogeds had complied with the Tort Claims Act and awarded them damages on the negligence claim.
- The City moved for directed verdict and judgment notwithstanding the verdict on the inverse condemnation claim; both motions were denied at trial. The City appealed both the inverse condemnation judgment and the Fogeds’ tort-claims judgment.
- On appeal the court concluded the inverse-condemnation claim failed as a matter of law (no showing the invasions were intended or foreseeable/public-use takings) and that the Fogeds’ hand-delivered cleaning bills did not satisfy the Tort Claims Act’s written-claim/demand requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sewer backups constituted an inverse condemnation (taking/damaging for public use) | Backups were caused by City sewer conditions and thus were a taking for public use | No frequent/recurring or foreseeable invasion tied to exercise of eminent-domain power; only two isolated backups at different locations | No taking: directed verdict for City required because appellees failed to show invasions were intended or foreseeable/public-use takings |
| Whether the trial court should have granted directed verdict/JNOV on inverse condemnation | Evidence supported submission to jury | Only one reasonable conclusion: no compensable taking under governing precedent | Directed verdict should have been granted for City; jury verdict vacated and judgment reversed |
| Whether the Fogeds’ hand-delivered cleaning bills constituted a written “claim” under the Tort Claims Act | Bills put City on notice and constituted submission of claim | Bills were invoices to the Fogeds and made no demand on the City for satisfaction; thus not a claim | Bills did not satisfy §13-905 demand/content requirements; Fogeds failed condition precedent and their tort claim must be dismissed |
| Whether substantial compliance or delivery to improper clerk employee saved the Fogeds’ claim | Substantial compliance; bills were delivered to clerk’s office employee | Content was deficient (no demand); therefore court need not reach delivery-authority issue | Court did not reach delivery issue because content failed; judgment for Fogeds reversed and claim dismissed |
Key Cases Cited
- Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (Neb. 2013) (threshold for inverse condemnation: invasion must be intended or foreseeable result of authorized government action)
- Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (U.S. 2012) (recurrent temporary invasions can be takings; foreseeability/intention is relevant)
- Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (Neb. 2003) (Tort Claims Act requires written claim that makes a demand for satisfaction of an obligation)
- West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (Neb. 1988) (example of a written claim meeting statutory demand requirement)
- Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (Neb. 1985) (claim that merely alerts defendant to possible future damages is insufficient)
- 6224 Fontenelle Blvd. v. Metropolitan Util. Dist., 22 Neb. App. 872, 863 N.W.2d 823 (Neb. Ct. App. 2015) (discusses court’s role in takings determinations)