Garcia v. City of Omaha , 316 Neb. 817 ( 2024 )

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www.nebraska.gov/apps-courts-epub/
07/10/2024 06:08 PM CDT
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817Salvador Garcia, appellee, v. City of Omaha,
a political subdivision, appellant.
___ N.W.3d ___
Filed June 7, 2024. No. S-23-391.
1. Political Subdivisions Tort Claims Act: Appeal and Error. Whether
a plaintiff’s negligence claims are precluded by an exemption to the
Political Subdivisions Tort Claims Act is a question of law for which
an appellate court has a duty to reach its conclusions independent of the
conclusions reached by the district court.
2. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s ruling on a motion for summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party
and drawing all reasonable inferences in that party’s favor.
3. Immunity: Jurisdiction. The presence of sovereign immunity is a juris-
dictional matter.
4. Summary Judgment: Proof. The burden of proof in summary judg-
ment is guided by the reasoning of Celotex Corp. v. Catrett, 477 U.S.
317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
5. Summary Judgment: Final Orders. The general rule is that an order
that denies summary judgment is not final.
6. Summary Judgment: Final Orders: Appeal and Error. Under Neb.
Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2022), a final order for purposes
of appeal includes “[a]n order denying a motion for summary judgment
when such motion is based on the assertion of sovereign immunity or
the immunity of a government official.”
7. Summary Judgment: Final Orders: Immunity. For an order to be
final under Neb. Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2022), two
requirements must be met: (1) The order must deny a motion for sum-
mary judgment, and (2) the summary judgment motion must be based on
either the assertion of sovereign immunity or the immunity of a govern-
ment official.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 8178. Immunity: Constitutional Law: Political Subdivisions: Legislature.
The sovereign immunity of the State and its political subdivisions is
preserved in Neb. Const. art. V, § 22. This constitutional provision is
not self-executing, and no suit may be maintained against a political
subdivision unless the Legislature, by law, has provided otherwise.
9. Torts: Immunity: Waiver: Legislature. The Legislature has allowed a
limited waiver of sovereign immunity with respect to some, but not all,
types of tort claims.
10. Political Subdivisions Tort Claims Act: Immunity: Waiver. The
Political Subdivisions Tort Claims Act’s waiver of immunity is subject
to exemptions as set forth in Neb. Rev. Stat. § 13-910 (Reissue 2022).
11. Statutes: Immunity: Waiver. Statutes purporting to waive the protec-
tion of sovereign immunity are to be strictly construed in favor of the
sovereign and against waiver.
12. Immunity: Jurisdiction. Sovereign immunity is a jurisdictional matter
that can be raised at any time by a party or the court.
13. Political Subdivisions Tort Claims Act: Immunity: Highways:
Notice. Neb. Rev. Stat. § 13-910(12) (Reissue 2022) immunizes politi-
cal subdivisions from liability claims relating to spot or localized
defects in highways, bridges, or other public thoroughfares unless and
until they have notice of the defect and a reasonable time to repair it.
14. Pleadings: Proof. Traditional pleading rules normally assign the burden
of proof to the party who pled an issue.
15. Jurisdiction: Proof. It is the general rule that the plaintiff must estab-
lish jurisdictional facts.
16. Negligence: Liability: Invitor-Invitee: Notice. In order for a defendant
to have constructive notice of a condition, the condition must be visible
and apparent and it must exist for a sufficient length of time prior to an
accident to permit a defendant or the defendant’s employees to discover
and remedy it.
17. Negligence. To have actual knowledge, one must in fact be aware of it.
18. Summary Judgment: Proof. If the burden of proof at trial would be
on the nonmoving party, then the party moving for summary judgment
may satisfy its prima facie burden either by citing to materials in the
record that affirmatively negate an essential element of the nonmoving
party’s claim or by citing to materials in the record demonstrating that
the nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim.
19. ____: ____. Once the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the existence
of a material issue of fact that prevents judgment as a matter of law.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Affirmed.
Jeffrey A. Bloom, Assistant Omaha City Attorney, for
appellant.
Jon Rehm, of Rehm, Moore & Rehm, P.C., L.L.O., for
appellee.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Lincoln J. Korell for amicus curiae State of Nebraska
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Salvador Garcia was driving a garbage truck in southeast
Omaha, Nebraska, when a sinkhole opened in the road under
his truck, leading to damage and injuries. He filed a negli-
gence action against the City of Omaha (City) in the district
court for Douglas County under the Political Subdivisions
Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq.
(Reissue 2022). The City asserted sovereign immunity under
§ 13-910(12), which generally immunizes political subdivi-
sions from liability claims relating to spot or localized defects
in highways, bridges, or other public thoroughfares unless
and until they have actual or constructive notice of the defect
and a reasonable time to repair it. The City contended it did
not have notice. The City filed a motion for summary judg-
ment. The district court denied the City’s motion, and the City
appealed pursuant to Neb. Rev. Stat. § 25-1902(1)(d) (Cum.
Supp. 2022). We affirm.
STATEMENT OF FACTS
On May 28, 2019, Garcia was driving a garbage truck in
the course and scope of his employment for a waste manage-
ment company. While he was driving on a public street, South
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Nebraska Supreme Court Advance Sheets
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 81719th Street between M and N Streets in Omaha, the road col-
lapsed beneath Garcia’s truck, the truck fell into a sinkhole,
and Garcia was injured. Garcia filed a workers’ compensation
claim under Neb. Rev. Stat. § 48-118 (Reissue 2021), and
he also sued the City under the PSTCA. Gallagher Bassett
Services, Inc., and Deffenbaugh Industries, Inc., were named
as parties for workers’ compensation subrogation purposes
only, as provided under § 48-118, and have not participated in
this appeal. We make no comment regarding Garcia’s workers’
compensation claim submitted to any forum. Garcia’s PSTCA
claim gives rise to this appeal. Garcia claimed that the City
had actual or constructive notice of the defect in the road, yet
failed to repair it in a reasonable timeframe. In its answer, the
City alleged various affirmative defenses, including an asser-
tion of sovereign immunity.
The City filed a motion for summary judgment in which
it asserted sovereign immunity. At the hearing on the motion
for summary judgment, the City argued that it had not waived
immunity because it was not on notice of a spot or localized
defect that caused Garcia’s injuries. The City adduced evidence
on the process by which it receives and logs complaints from
the public regarding street maintenance. The evidence gener-
ally showed that if persons have complaints regarding street
maintenance, there are several ways to notify the City, includ-
ing the general public works/street maintenance telephone line
or the “Mayor’s Hotline.” Access to the Mayor’s Hotline is
available by phone, email, and an online portal. Complaints
regarding street maintenance are logged in a system called
Cityworks, which maintains a history of street maintenance
requests and work orders dating back to 2007. Service requests
or work orders entered in Cityworks are never deleted. The
City contended that it did not have a record of any complaint
by Tonya Ward, a resident who lives on the street where the
incident occurred. The City further noted that Garcia had
driven the same route on Mondays for more than a year and
had not noticed any problems on South 19th Street.
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817Garcia relied, in part, on an affidavit from Ward. Ward
had lived on South 19th Street for approximately 14 years.
She stated that she had called the Mayor’s Hotline in 2017,
2018, and 2019 to “complain about the general condition of
[the street], but more specifically holes in the street, erosion
that could be observed below the street, cracks in the street,
etc.” She believed that she “took pictures of some of the street
issues around the time [she] called.” According to Ward, the
street is still in “bad condition having only been patched where
this incident happened.” After Garcia’s truck fell into the sink-
hole outside her home, Ward stated that she observed Garcia
in pain and that she “observed the hole that opened up under
[Garcia’s] vehicle shortly after it occurred.” The City argued
that Ward’s affidavit was too vague and imprecise to satisfy
Garcia’s burden. The City contended that even if Ward had
complained of the general condition of the road, this would
be insufficient notice of a spot or localized defect, because the
sinkhole conditions were latent and not apparent.
In his deposition, Garcia testified that Ward assisted him
after the incident and gave him water. He stated that at that
time, she told him that she had sent emails to the City about
the street.
The City submitted evidence showing no record of Ward’s
complaints. However, the records included an earlier work
order on the same block that showed that a plumbing truck
operator had “noticed undermining” and a “[v]oid under 3’x5’
hole” where the plumber had been working and that a backfill
inspection was ordered.
The district court denied the City’s motion for summary
judgment. The Court found that the City had met its burden
to demonstrate a prima facie case that it lacked actual notice
and constructive notice of the defect. However, it found that
viewing the evidence in the light most favorable to Garcia
and giving him the benefit of all reasonable inferences from
the evidence, Garcia had met his burden to demonstrate
a genuine issue of material fact that precluded summary
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817judgment. The court set forth excerpts from Ward’s affidavit
and noted her assertions that she had previously contacted the
City specifically about holes in the street and erosion below
the street in the area of the incident. It found Garcia had car-
ried his burden to show a genuine issue of material fact as to
whether the City had actual or constructive notice of a spot
or localized defect.
Because its motion for summary judgment was denied and
the motion was based on an assertion of sovereign immunity,
the City appeals the order under § 25-1902(1)(d).
ASSIGNMENT OF ERROR
The City claims, summarized and restated, that the district
court erred when it found a genuine issue of material fact
as to whether the City had actual or constructive notice of a
spot or localized defect in a public thoroughfare, which issue
prevented the conclusion that the City was immunized, thus
precluding summary judgment.
STANDARDS OF REVIEW
[1] Whether a plaintiff’s negligence claims are precluded
by an exemption to the PSTCA is a question of law for which
an appellate court has a duty to reach its conclusions indepen-
dent of the conclusions reached by the district court. Clark v.
Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
[2] An appellate court reviews the district court’s ruling on
a motion for summary judgment de novo, viewing the record
in the light most favorable to the nonmoving party and draw-
ing all reasonable inferences in that party’s favor. Simpson v.
Lincoln Public Schools, ante p. 246, 4 N.W.3d 172 (2024).
ANALYSIS
[3,4] In this case, we are asked to apply recent developments
in our jurisprudence regarding both sovereign immunity and
summary judgment. In particular, we apply the principles that
the presence of sovereign immunity is a jurisdictional matter,
see Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017), and
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817that the burden of proof in summary judgment is guided by the
reasoning of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986), as adopted in Clark v. Scheels
All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023).
Applying the foregoing principles to the record in this case,
and given the factual dispute regarding the notice issue, we
reject the City’s contention that the district court erred when
it denied the City’s motion for summary judgment asserting
sovereign immunity. We affirm the order of the district court.
Appellate Jurisdiction.
[5,6] The City seeks interlocutory appellate review of an
order that denied a motion for summary judgment. The gen-
eral rule is that an order that denies summary judgment is
not final. See, e.g., Carney v. Miller, 287 Neb. 400, 842
N.W.2d 782 (2014). However, the Legislature recently enacted
§ 25-1902(1)(d). Under § 25-1902(1)(d), a final order for
purposes of appeal includes “[a]n order denying a motion
for summary judgment when such motion is based on the
assertion of sovereign immunity or the immunity of a gov-
ernment official.” We note that an appeal of an order under
§ 25-1902(1)(d) remains available under Neb. Rev. Stat.
§ 25-1912 (Cum. Supp. 2022) within 30 days after the entry
of judgment. See § 25-1902(2).
[7] In this case, the City asserted in its answer and motion
for summary judgment that it was immune because Garcia’s
claim fell within the statutory exemption found in § 13-910(12)
to the waiver of sovereign immunity. Further, the order on
appeal denied the motion for summary judgment. For an order
to be final under § 25-1902(1)(d), two requirements must be
met: (1) The order must deny a motion for summary judg-
ment, and (2) the summary judgment motion must be based on
either the assertion of sovereign immunity or the immunity of
a government official. See Clark v. Sargent Irr. Dist., supra.Both requirements have been met, and we have appellate
jurisdiction of the City’s appeal.
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817Notwithstanding our appellate jurisdiction, we take this
opportunity to observe that, as illustrated in our analysis below,
a factual dispute regarding sovereign immunity is not likely
to be resolved at the interlocutory appeal level. Thus, rather
than taking an appeal, finality is ordinarily better served by
proceeding with the judge who serves as fact finder in the
court below. And, as noted above, an appeal of an order under
§ 25-1902(1)(d) remains available under § 25-1912 within 30
days after the entry of judgment. See § 25-1902(2).
Sovereign Immunity and Waiver.
[8] The sovereign immunity of the State and its politi-
cal subdivisions is preserved in Neb. Const. art. V, § 22.
This constitutional provision is not self-executing, and no suit
may be maintained against a political subdivision unless the
Legislature, by law, has provided otherwise. Simpson v. Lincoln
Public Schools, ante p. 246, 4 N.W.3d 172 (2024).
[9-11] Through the enactment of the PSTCA, the Legislature
has allowed a limited waiver of sovereign immunity with
respect to some, but not all, types of tort claims. Simpson
v. Lincoln Public Schools, supra. The PSTCA’s waiver of
immunity is subject to exemptions as set forth in § 13-910.
Simpson v. Lincoln Public Schools, supra. Statutes purport-
ing to waive the protection of sovereign immunity are to be
strictly construed in favor of the sovereign and against waiver.
Id. To strictly construe the PSTCA against a waiver of sover-
eign immunity, courts apply a broad reading to any statutory
exemptions from a waiver of sovereign immunity. Simpson v.
Lincoln Public Schools, supra. The exemption at issue here is
referred to as the “spot or localized defect” exemption.
[12] In 2017, we held that sovereign immunity is a juris-
dictional matter that can be raised at any time by a party or
the court, overruling our previous case law requiring the gov-
ernment to plead and prove sovereign immunity. See Davis
v. State, 297 Neb. 955, 902 N.W.2d 165 (2017) (discussing
State Tort Claims Act). See, also, Edwards v. Douglas County,
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817308 Neb. 259, 953 N.W.2d 744 (2021) (discussing PSTCA).
As Davis v. State indicates, the issue of sovereign immunity
can be addressed on appeal. However, unlike Davis v. State,
which involved a facial issue and a motion to dismiss, as we
discuss below, the instant appeal involves a sovereign immu-
nity problem necessitating resolution of a factual issue that is
not amenable to resolution in this appeal.
Spot or Localized Defect Exemption.
As relevant in this case, § 13-910(12) of the PSTCA provides:
[Waiver of immunity shall not apply to:] Any claim aris-
ing out of the alleged insufficiency or want of repair of
any highway as defined in such section, bridge, or other
public thoroughfare. Insufficiency or want of repair shall
be construed to refer to the general or overall condi-
tion and shall not refer to a spot or localized defect.
[However a] political subdivision shall be deemed to
waive its immunity for a claim due to a spot or localized
defect only if (a) the political subdivision has had actual
or constructive notice of the defect within a reasonable
time to allow repair prior to the incident giving rise to
the claim . . . .
[13] We have stated that “[s]ection § 13-910(12) immunizes
political subdivisions from liability claims relating to spot or
localized defects in highways, bridges, or other public thor-
oughfares unless and until they have notice of the defect and
a reasonable time to repair it.” Kimminau v. City of Hastings,
291 Neb. 133, 144, 864 N.W.2d 399, 409 (2015). When the
requisite notice exists, sovereign immunity is waived. Id.The notice feature of § 13-910(12) can be characterized
colloquially as an exception to an exception to an exception
to a general rule. See CNA v. U.S., 535 F.3d 132 (3d Cir.
2008). By waiving sovereign immunity, the PSTCA creates an
exception to the general rule that a political subdivision can-
not be sued but that permission to sue comes with exceptions.
In § 13-910(12), the political subdivision cannot be sued for
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817want of repair of public thoroughfares, but it can be sued if it
had an actual or constructive notice of the condition. We treat
the § 13-910(12)(a) factors as a whole.
[14,15] Sovereign immunity is by its nature jurisdictional.
See Davis v. State, supra. The complaint and evidence in this
case show a factual issue regarding sovereign immunity. See
Davis v. U.S., 196 F. Supp. 3d 106 (D.D.C. 2016) (noting it
was premature to decide jurisdictional sovereign immunity
factual question on motion to dismiss or in alternative sum-
mary judgment). Traditional pleading rules normally assign
the burden of proof to the party who pled an issue. See,
e.g., Van Burg v. Van Engen, 76 Neb. 816, 107 N.W. 1006(1906) (noting inconsistency of requiring one party to plead
issue while placing burden of disproving it on opposing
party); Ugo Colella & Adam Bain, The Burden of Proving
Jurisdiction Under the Federal Tort Claims Act: A Uniform
Approach to Allocation, 67 Fordham L. Rev. 2859 (1999)
(discussing Federal Tort Claims Act). It is the general rule
that the plaintiff must establish jurisdictional facts. See Everts
v. School Dist. No. 16, 175 Neb. 310, 121 N.W.2d 487 (1963).
We also observe that the plaintiff is also the party seeking to
benefit at trial from the waiver of sovereign immunity. See
Koehler v. City of Atlanta, 221 Ga. App. 534, 472 S.E.2d 91(1996). We conclude that this burden on the plaintiff includes
showing facts that demonstrate that the exceptions to the
State’s waiver of sovereign immunity under the PSTCA do
not deprive the court of subject matter jurisdiction. See Davis
v. State, 297 Neb. 955, 902 N.W.2d 165 (2017) (in case con-
sidering motion to dismiss, concluding that plaintiff bears this
burden). Thus, in this case, Garcia has the burden to show
that the City was not immunized because it had actual or
constructive notice.
In regard to § 13-910(12), we have construed “spot” to
mean “‘a small area visibly different . . . from the surrounding
area’”; “defect” to mean “‘[a]n imperfection or shortcoming,
esp. in a part that is essential to the operation or safety of a
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817product’”; and “localized” to mean “‘to accumulate in or be
restricted to a specific or limited area.’” Kimminau v. City of
Hastings, 291 Neb. at 141, 864 N.W.2d at 408.
[16,17] We have observed in other contexts that in order
for a defendant to have constructive notice of a condition,
the condition must be visible and apparent and it must exist
for a sufficient length of time prior to an accident to permit
a defend­ant or the defendant’s employees to discover and
remedy it. Range v. Abbott Sports Complex, 269 Neb. 281,
691 N.W.2d 525 (2005). See Brzinski v. Northeast Illinois
Regional, 384 Ill. App. 3d 202, 892 N.E.2d 1142, 323 Ill.
Dec. 150 (2008) (stating in road sinkhole case decided on
summary judgment that to establish “constructive notice,”
plaintiff was required to show defendant could or should have
known of sinkhole). To have actual knowledge, “one must
in fact be aware of it.” Intel Corp. Inv. Policy Committee v.
Sulyma, ___ U.S. ___, 140 S. Ct. 768, 776, 206 L. Ed. 2d 103(2020). The parties agree that the sinkhole that opened under
Garcia’s garbage truck was in the nature of a “spot or local-
ized defect” and that the central issue in this case is whether
the City had notice of a spot or localized defect.
Summary Judgment.
The district court determined that the City met its prima
facie burden on its motion for summary judgment but that
Ward’s affidavit in particular created a genuine issue of mate-
rial fact as to whether the City had actual or constructive
notice of the condition of the road that ultimately caused
Garcia’s injuries. We see no error in these determinations.
[18] In Clark v. Scheels All Sports, 314 Neb. 49, 68-69, 989
N.W.2d 39, 53 (2023), we recently held that
if the burden of proof at trial would be on the nonmov-
ing party, then the party moving for summary judg-
ment may satisfy its prima facie burden either by citing
to materials in the record that affirmatively negate an
essential element of the nonmoving party’s claim or by
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817citing to materials in the record demonstrating that the
nonmoving party’s evidence is insufficient to establish
an essential element of the nonmoving party’s claim.
Applying the principles in Clark v. Scheels All Sports and
keeping in mind the lessons of Davis v. State as we discussed
above, to establish that the City waived its immunity for a
claim due to a spot or localized defect, Garcia would have the
burden of proof at trial to show that the political subdivision
has had “actual or constructive notice of the defect within a
reasonable time to allow repair prior to the incident giving rise
to the claim,” thus resulting in the City’s waiver of sovereign
immunity. See § 13-910(12)(a). See, similarly, Koehler v. City
of Atlanta, 221 Ga. App. 534, 472 S.E.2d 91 (1996) (regarding
summary judgment in sovereign immunity case, stating parties
who will not bear burden of proof at trial may prevail on sum-
mary judgment by pointing out, by reference to record, there is
no evidence sufficient to create genuine jury issue on at least
one essential element of nonmovant’s case).
Regarding the motion for summary judgment, we note
that Garcia was the nonmoving party and had the burden of
proof at trial as to the factors in § 13-910(12)(a). Under the
circumstances, the City may satisfy its initial prima facie
burden by citing to materials in the record that affirmatively
negate an essential element of Garcia’s claim or by citing to
materials in the record demonstrating that Garcia’s evidence
is insufficient to establish an essential element of his claim.
See Clark v. Scheels All Sports, supra. The City did so in this
case, as the district court correctly found. The City produced
evidence regarding its complaint system and reporting mecha-
nisms and, specifically, the work history on the road, which
showed that it had no record of reports by Ward. With respect
to constructive notice, the City relied on Garcia’s testimony
that during his weekly route, he had not noticed problems
with the street. The district court determined that the City
met its initial burden by showing that it did not have actual
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 817or constructive notice of the defect, thereby negating Garcia’s
allegation that the City had actual or constructive notice of
the defect.
[19] Once the moving party makes a prima facie case, the
burden shifts to the nonmovant to produce evidence showing
the existence of a material issue of fact that prevents judg-
ment as a matter of law. See id. We agree with the district
court that Garcia met his burden to demonstrate a genuine
issue of material fact as to whether the City had actual or
constructive notice of the spot or localized defect. The record
shows that Ward swore in her affidavit:
I called multiple times to the City of Omaha and Omaha
Mayor’s hotline in 2017, 2018[,] and at least once in
2019 prior to the accident to complain about the general
condition of 19th Street between M and N Streets, but
more specifically holes in the street, erosion that could
be observed below the street, cracks in the street, etc. I
believe I took pictures of some of the street issues around
the time I called.
(Emphasis supplied.) Although the City disputes the strength
of Garcia’s evidence regarding notice, it is not the role of
summary judgment to weigh the evidence. As we recently
emphasized, “‘[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.’” Palmtag v. Republican Party of Neb., 315 Neb.
679, 698, 999 N.W.2d 573, 588 (2024) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986)).
Garcia’s evidence that Ward made reports to the City
included not only complaints of potholes or the general con-
dition of the road, but information that there were holes and
cracks in the street, as well as detectable erosion that could
be observed below the street. There was evidence suggesting
that a thunderstorm with plowable hail occurred on the morn-
ing of the incident. As noted in our statement of facts, the
City had previously filled, on the same block, a “[v]oid under
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GARCIA V. CITY OF OMAHA
Cite as 316 Neb. 8173’x5’ hole” where significant “undermining” had taken place
beneath the street. Given the previous incident and Ward’s
affidavit testimony in particular, Garcia satisfied his burden
for purposes of summary judgment. See, Taylor v. City of
Cleveland, No. 107095, 2019 WL 645030 (Ohio App. Feb. 14,
2019) (stating in road sinkhole case, affirming denial of city’s
motion for summary judgment, that city’s knowledge of recent
water main break less than 200 feet from where plaintiffs
were injured created genuine issue of material fact); Abdullah
v. City of Somers Point, No. A-4255-1171, 2013 WL 3581952(N.J. Super. July 16, 2013) (unpublished opinion) (noting that
although city was unaware sinkhole had opened, it had notice
of instability of ground beneath pavement). The evidence cre-
ates a genuine issue of material fact whether the City received
actual or constructive notice of the spot or localized defect in
a public thoroughfare. If the City had received notice within
a reasonable time to allow it to make repairs prior to the inci-
dent, it is not immunized under § 13-910(12)(a).
CONCLUSION
In this appeal, Garcia sued the City under the PSTCA for
injuries he received after his truck fell in a sinkhole on a city
street. The City moved for summary judgment based on sov-
ereign immunity. Because Garcia’s evidence showed a genuine
issue of material fact whether the City had received notice of
the defect, the district court denied the City’s motion. Finding
no error by the district court, we affirm.
Affirmed.