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 on July 23 and August 16, 2010 that flooded their basements.
- City crews cleared a blockage near Meadow Lane after the July backup and found a second blockage several blocks away (Cherokee Drive) after the August backup; video inspection later showed some broken/disjointed pipe and roots in the lines.
- Appellees filed an initial inverse condemnation complaint (Oct. 2011) and later amended to add negligence claims under the Political Subdivisions Tort Claims Act (Dec. 2014); separate bench trial on the Fogeds’ Tort Claims Act claim.
- A jury found for appellees on inverse condemnation; the trial court dismissed most Tort Claims Act claims but found the Fogeds had filed a proper tort claim and awarded damages after a bench trial.
- The City appealed, arguing (inter alia) that the backups were not a taking for public use (so a directed verdict was required) and that the Fogeds failed to satisfy the Tort Claims Act filing requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sewer backups constituted an inverse condemnation (taking for public use) | Appellees: two backups damaged property and were foreseeable from City sewer operations/maintenance lapses | City: backups were isolated, not frequent/recurring, and not foreseeable as an exercise of eminent domain power | Court: No taking — directed verdict for City should have been granted; jury verdict vacated |
| Whether question of taking was for jury or court | Appellees: factual dispute supports jury determination | City: legal question (ultimate takings determination) for the court | Court did not need to decide this issue after directing verdict error; declined further analysis |
| Whether Fogeds’ hand-delivered cleaning bills to City clerk constituted a statutory Tort Claims Act claim | Fogeds: bills put City on notice and constituted a claim for damages | City: bills merely invoices, no demand for satisfaction, so not a claim under §13-905 | Court: Bills did not make a demand or state relief sought; not a claim — Fogeds’ Tort Claims Act action must be dismissed |
| Whether Fogeds presented claim to proper city official (delivery question) | Fogeds: delivery to clerk’s office employee constituted presentment | City: not delivered to the official charged with maintaining claims | Court: Did not decide, because bills failed on content requirement; delivery issue unnecessary to resolve |
Key Cases Cited
- Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (Neb. 2013) (takings inquiry 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 and recurrence are relevant)
- Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (Neb. 2003) (Tort Claims Act requires written claim that substantially complies with statute and includes a demand for satisfaction)
- West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (Neb. 1988) (claim satisfied where letter expressly stated a claim for property loss and demand)
- Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (Neb. 1985) (claim insufficient where letter only alerted defendant to possible future damages and made no demand)
- 6224 Fontenelle Blvd. v. Metropolitan Util. Dist., 22 Neb. App. 872, 863 N.W.2d 823 (Neb. Ct. App. 2015) (ultimate determination whether government conduct constitutes a taking is a question of law for the court)
- Winder v. Union Pacific RR. Co., 296 Neb. 557, 894 N.W.2d 343 (Neb. 2017) (directed verdict standard; must view evidence in light most favorable to nonmoving party)