Essink v. City of Gretna
25 Neb. Ct. App. 53
| Neb. Ct. App. | 2017Background
- Residents on Meadow Lane experienced two sanitary sewer backups (July 23 and August 16, 2010) that flooded several homes; City crews cleared blockages at different locations on the municipal sewer line.
- Appellees (Essink, the Henrys, and the Fogeds) filed an inverse condemnation suit and, later, negligence claims under the Political Subdivisions Tort Claims Act; a jury found for appellees on inverse condemnation and a bench trial found for the Fogeds on the Tort Claims Act negligence claim.
- The City moved for directed verdict/JNOV on the inverse condemnation claim and for summary judgment as to several tort claims; the district court granted summary judgment for the City as to Essink and the Henrys’ tort claims but allowed the Fogeds’ tort claim to proceed.
- Trial evidence showed only two backups on Meadow Lane (the contested events) with no history of frequent or recurring backups locally; experts disagreed whether line condition or unpredictable foreign obstructions caused the blockages.
- The Fogeds had hand-delivered cleanup/plumbing bills to a City clerk employee after the backups; the trial court found those constituted a claim under the Tort Claims Act and awarded damages for negligence.
- On appeal, the court considered (1) whether the backups constituted a taking/damage "for public use" (inverse condemnation) and (2) whether the Fogeds complied with Tort Claims Act filing requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether backups constituted a taking/damage "for public use" (inverse condemnation) | Appellees: City operation/maintenance made backups foreseeable and thus constituted a compensable taking/damage. | City: Two isolated backups were not intended or foreseeable government action and cannot be a taking; directed verdict should be entered. | Court: Held backups were not frequent/foreseeable takings; directed verdict for City should have been granted; jury verdict vacated. |
| Whether the question of taking should have been submitted to the jury | Appellees: Factual disputes warranted jury determination. | City: Ultimate takings determination is a question of law for the court. | Court: Because directed verdict should have been entered for City, the submission to the jury was unnecessary and error need not be decided further. |
| Whether the Fogeds’ hand-delivered cleanup bills satisfied Tort Claims Act claim-content requirement | Fogeds: Bills put City on notice and were sufficient to present a claim. | City: Bills merely documented charges and did not demand satisfaction or state relief; thus not a claim under the Act. | Court: Held bills did not make a demand for satisfaction or state relief; did not satisfy §13-905—Fogeds’ Tort Claims Act claim must be dismissed. |
| Whether the Fogeds delivered the claim to proper city official and whether City was negligent | Fogeds: Delivery to clerk’s office employee was sufficient; City negligently caused backups. | City: Even if delivered, not to proper official; also denial of negligence or proximate cause. | Court: Did not decide delivery/proper official or negligence because bills failed content requirement; remanded with directions to dismiss Fogeds’ tort claim. |
Key Cases Cited
- Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (Neb. 2013) (takings inquiry focuses first on whether invasion was intended or foreseeable result of government action)
- Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23 (U.S. 2012) (recurrent temporary floodings can constitute a taking; foreseeability/intention matters)
- 6224 Fontenelle Blvd. v. Metropolitan Util. Dist., 22 Neb. App. 872, 863 N.W.2d 823 (Neb. Ct. App. 2015) (court addressed ultimate takings determination as a question of law)
- Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (Neb. 2003) (written claim must demand satisfaction of an obligation and state relief sought under Tort Claims Act)
- Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (Neb. 1985) (claim insufficient where it merely alerted defendant to possible future damages without demand)
- West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (Neb. 1988) (claim sufficient where it expressly stated a claim was made for property loss and sought relief)