Ecker v. E & A Consulting Group , 302 Neb. 578 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/07/2019 01:07 AM CDT
- 578 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
Tom Ecker et al., appellants, v.
E & A Consulting Group, Inc.,
et al., appellees.
___ N.W.2d ___
Filed March 22, 2019. No. S-17-1190.
1. Summary Judgment: Appeal and Error. In reviewing the grant of a
motion for summary judgment, an appellate court views the evidence
in the light most favorable to the party against whom the judgment was
granted, giving that party the benefit of all reasonable inferences deduc-
ible from the evidence.
2. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, for which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the court below.
3. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
4. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
5. Trial: Waiver: Appeal and Error. One may not waive an error, gamble
on a favorable result, and, upon obtaining an unfavorable result, assert
the previously waived error.
6. Trial: Appeal and Error. An issue not presented to or decided on by
the trial court is not an appropriate issue for consideration on appeal.
7. Negligence: Damages: Proximate Cause. In order to prevail in a neg-
ligence action, a plaintiff must establish the defendant’s duty to protect
the plaintiff from injury, a failure to discharge that duty, and damages
proximately caused by the failure to discharge that duty.
8. Negligence: Proximate Cause: Words and Phrases. The proximate
cause of an injury is that which, in a natural and continuous sequence,
without any efficient intervening cause, produces the injury, and without
which the injury would not have occurred.
- 579 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
Appeal from the District Court for Sarpy County: William
B. Zastera and Stefanie A. M artinez, Judges. Affirmed.
Michael L. Storey and John M. Walker, of Lamson, Dugan
& Murray, L.L.P., for appellants.
Gregory C. Scaglione and John V. Matson, of Koley Jessen,
P.C., L.L.O., for appellee E & A Consulting Group, Inc.
Gerald L. Friedrichsen and William M. Bradshaw, of
Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for
appellee City of La Vista.
John A. Svoboda, of Gross & Welch, P.C., L.L.O., for appel-
lee Sanitary Improvement District No. 237.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
Tom Ecker, Ruth Ecker, Jim Sledge, and Rosemary Sledge
own homes in La Vista, Nebraska. After those homes were
flooded, they brought suit against E & A Consulting Group,
Inc. (E&A), Sanitary Improvement District No. 237 (SID
No. 237), the City of La Vista (City), and two other par-
ties who have since been dismissed with prejudice from this
litigation, alleging that the parties were negligent in various
ways, which led to the flood damages suffered. The district
court granted summary judgment in favor of E&A, SID No.
237, and the City. The Eckers and Sledges (collectively the
homeowners) appeal. We moved this case to our docket,
because it presents an issue of first impression regarding
revisions to the statute allowing motions for summary judg-
ment as set forth in Neb. Rev. Stat. § 25-1332 (Supp. 2017).
We affirm.
- 580 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
II. BACKGROUND
1. Factual Background
The homeowners are neighbors residing in the Cimarron
Woods area of La Vista. Their homes are adjacent to each
other, feature walkout basements, and have backyards abutting
Applewood Creek. The Ecker home has a basement elevation
of 1,079.009 feet above sea level, and the Sledge home has a
basement elevation of 1,079.808 feet above sea level.
A 2010 drainage study completed by E&A found that several
Cimarron Woods homes would flood during a less-than-100-
year flood event. As such, E&A recommended that SID No.
237 construct a berm at 100-year flood levels. The parties all
concede that the 100-year flood level was 1,081.9 feet above
sea level. Plans called for a berm built up to 1,082.5 feet above
sea level. A berm intended to meet that recommendation was
built in 2011. As relevant to this appeal, the record indicates
that the berm had low spots: Adjacent to the Eckers’ backyard,
the berm was built at 1,081.6 feet above sea level, while adja-
cent to the Sledges’ backyard, the berm was at 1,081.4 feet
above sea level.
On June 20 and 21, 2014, a rainstorm in the area generated
sufficient water to overcome the berm. The record includes
evidence that the total rainfall measured at the Millard Airport,
located 3 miles away, was 6.6 inches during an 8-hour period,
while the total rainfall measured at the City’s public works
facility, located 1 mile away, was 7.4 inches during an 8-hour
period. The Ecker and Sledge basements both flooded as a
result of this storm. The Sledges had 3.5 feet of water in their
basement, while the Eckers had 5 feet of water in theirs.
Apparently, other homeowners experienced flooding, but
this litigation involves only the Eckers and the Sledges, who
filed suit against E&A, BNSF Railway Company (BNSF),
and Pedcor Management Corporation. Approximately 1 year
later, their suit was amended to join SID No. 237 and the City.
Subsequently, E&A, BNSF, SID No. 237, and the City filed
- 581 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
motions for summary judgment. BNSF’s motion was denied;
the other motions were granted. The homeowners’ motion
to reconsider was denied. The action against BNSF was dis-
missed with prejudice; the action against Pedcor Management
Corporation was dismissed with prejudice prior to the disposi-
tion of the summary judgment motions.
The homeowners appeal.
2. Expert Testimony
George Bryan, an expert for the homeowners, testified that
E&A, SID No. 237, and the City failed to meet the standard of
care to protect against flooding. Bryan further testified that the
City should not have allowed construction of the homes and
that the drainage did not comply with the “Omaha Regional
Stormwater Design Manual,” because it was not built for a
100-year storm event. Bryan specifically testified that the
maximum flow capacity of the channel running behind the
Ecker and Sledge homes was less than the peak flow of a
100-year storm event. Bryan noted that the studies undertaken
in preparation for building the drainage channel did not take
into account stormwater flow, but only stormwater storage.
However, Bryan did agree that the berm was a proper design
device to prevent flooding and agreed that the storm in ques-
tion was in excess of a 100-year storm.
BNSF was still a defendant at the time of the summary judg-
ment hearing and introduced the deposition and reports of its
own expert. According to allegations set forth in the motion for
summary judgment, the evidence was additionally relied upon
by other defendants. BNSF’s expert testified that both the size
of the storm and the design of the area caused the flooding
in question, specifically noting that the City should not have
allowed the construction of homes in that area, that the berm
was not a prudent protective remedy, that the design studies
underestimated the size of a 100-year flood event, and that SID
No. 237 did not build the berm to the standards recommended
by E&A.
- 582 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
E&A’s first expert, Mark Westergard, testified that the flood-
ing was caused by the size of the storm and, perhaps, blockage
of the nearby BNSF culvert. Westergard noted that there was
no neighborhood data on the storm and that the closest offi-
cial totals (of 6.6 inches of rain) were gathered at the Millard
Airport, located 3 miles away. Westergard observed that the
Millard Airport rain total exceeded the Omaha Regional
Stormwater Design Manual but not the “Soil Conservation
Service” manual, which listed a 100-year storm event at 6.7
inches of rainfall. Finally, Westergard agreed that SID No. 237
did not build the berm to the specifications recommended by
E&A. E&A’s second expert testified that the storm event could
have been anticipated and that the flooding was caused by the
magnitude of the storm and culvert blockage.
The City’s engineer testified via deposition that he found
that the drainage studies complied with the Omaha Regional
Stormwater Design Manual and the application subdivision
regulations for the City. In a later affidavit, the engineer indi-
cated that contrary to the homeowners’ contention, their homes
were not built in a designated floodway and thus those regula-
tions did not apply, and that the drainage provided exceeded
that required by other regulations.
III. ASSIGNMENTS OF ERROR
The homeowners assign, restated and consolidated, that the
district court erred in granting summary judgment in favor of
E&A, SID No. 237, and the City.
IV. STANDARD OF REVIEW
[1,2] In reviewing the grant of a motion for summary
judgment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment was
granted, giving that party the benefit of all reasonable infer-
ences deducible from the evidence.1 Statutory interpretation
1
See Ewers v. Saunders County, 298 Neb. 944, 906 N.W.2d 653 (2018).
- 583 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
presents a question of law, for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below.2
V. ANALYSIS
The homeowners assign that the district court erred in grant-
ing summary judgment to E&A, SID No. 237, and the City.
Specifically, they argue that (1) there were genuine issues of
material fact preventing summary judgment in favor of E&A,
SID No. 237, and the City; (2) E&A and SID No. 237 failed
to file statements of undisputed fact cited to in the record as
required by § 25-1332(2) and Rules of Dist. Ct. of Second Jud.
Dist. 2-7 (rev. 2018); and (3) E&A and SID No. 237 failed to
submit a brief in support of their motion for summary judg-
ment as required by rule 2-7.
1. Failure to File Statements
of Fact and Briefs
The homeowners argue on appeal that E&A and SID No.
237 failed to meet their prima facie burden for summary judg-
ment, because both failed to comply with the requirements set
forth in § 25-1332(2). That subsection requires a party to pro-
vide citations to the record to support its assertion that a fact
cannot be or is genuinely disputed. As an initial matter, E&A
and SID No. 237 argue that the homeowners did not object
to the failure to cite to the record and thus have waived this
argument on appeal. We agree.
[3-6] We have often said that failure to make a timely objec-
tion waives the right to assert prejudicial error on appeal.3
When an issue is raised for the first time in an appellate court,
it will be disregarded inasmuch as a lower court cannot com-
mit error in resolving an issue never presented and submitted
2
Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900
N.W.2d 909 (2017).
3
State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
- 584 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
to it for disposition.4 One may not waive an error, gamble on
a favorable result, and, upon obtaining an unfavorable result,
assert the previously waived error.5 For that reason, an issue
not presented to or decided on by the trial court is not an
appropriate issue for consideration on appeal.6
The homeowners noted at the hearing on the motions for
summary judgment that E&A and SID No. 237 did not file
briefs with their motion. But they did not make any objection
to this failure, or to the failure of E&A and SID No. 237 to cite
to the record. As such, we agree that the homeowners waived
consideration of this issue on appeal and decline to address this
issue on appeal.
While we conclude that the issue was waived, we do observe
that district courts generally retain considerable discretion with
respect to the procedures used in their courtrooms. And indeed,
§ 25-1332(3) also provides considerable discretion to the dis-
trict court in the event that § 25-1332(2) is not complied with.
Moreover, we have held that “‘[i]n appropriate circumstances
where no injustice would result, the district court may exercise
its inherent power to waive its own rules.’”7
2. Summary Judgment
[7] We turn next to a review of the district court’s grant of
summary judgment. In order to prevail in a negligence action,
a plaintiff must establish the defendant’s duty to protect the
plaintiff from injury, a failure to discharge that duty, and dam-
ages proximately caused by the failure to discharge that duty.8
The legal duty owed in this case was to design and build a
drainage solution for a 100-year storm or rain event.
4
Id.
5
Id.
6
Id.
7
Kibler v. Kibler, 287 Neb. 1027, 1031-32, 845 N.W.2d 585, 589 (2014).
8
Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
- 585 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
(a) Negligence of E&A
and SID No. 237
In their petition, the homeowners alleged that E&A and SID
No. 237 owed them a duty to design, engineer, and maintain
an effective stormwater management plan and that this duty
was breached. On appeal, the homeowners argue that E&A
failed to design the berm to an adequate height, that SID No.
237 failed to construct the berm as designed, and that these
breaches were the proximate cause of the homeowners’ dam-
ages. The homeowners also contend that the decision of E&A
and SID No. 237 in choosing a berm and constructing a berm,
rather than adopting other flood control measures, caused
the flooding.
E&A’s goal in its various drainage studies was to protect
the homes in this subdivision from a 100-year storm event.
E&A concluded that to accomplish this, an earthen berm
should be built to 1,082.5 feet above sea level. This height
exceeded the 100-year storm event elevation of 1,081.9 feet
above sea level. This recommendation was based in part on
a conclusion on the part of E&A, later proved false, that the
BNSF culvert was round and 52 inches in diameter, when in
reality, the culvert was elliptically shaped and was 52 inches
by 48 inches. In addition, the record shows that the berm had
low spots at 1,081.4 and 1,081.6 feet above sea level.
BNSF’s expert testified that he felt that usage of the berm
as a flood control device was “imprudent” and that he would
have recommended the use of a detention/retention system. But
the expert agreed in his testimony that had the berm been con-
structed at a height about 3 inches higher than recommended
by E&A, it would have been sufficient. The homeowners’
expert testified that due to vegetation in the BNSF culvert that
was not properly accounted for, the berm should have been
1 to 1.5 feet higher than its lowest point, or approximately
1,082.9 feet above sea level.
E&A and SID No. 237 had a duty to the homeowners to
provide flood protection from a 100-year storm and chose to
- 586 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
provide this protection by constructing a berm. We assume
without deciding that E&A breached this duty when it recom-
mended construction of a berm over other flood control meas­
ures, and then miscalculated the appropriate height of that
berm, and further, that SID No. 237 breached its duty when the
berm, as constructed, included several low spots.
[8] But the homeowners are unable to show that these
breaches were the proximate cause of the flooding. “The
proximate cause of an injury is that which, in a natural and
continuous sequence, without any efficient intervening cause,
produces the injury, and without which the injury would not
have occurred.”9
The uncontroverted evidence in the record, including the
testimony of all the experts, shows that the storm that occurred
the evening and early morning hours of June 20 and 21, 2014,
exceeded a 100-year storm event. The evidence was also
uncontroverted that the water elevation in the drainage basin
reached 1,083.7 feet above sea level, or nearly 1 foot above
the highest recommended height of the berm. Even if the berm
had been built to the specifications which the experts recom-
mended in hindsight, the rain event was still so significant that
the homeowners’ properties would have flooded. The fact that
there was evidence that the flooding might have begun at a
point earlier than a 100-year event is immaterial to this conclu-
sion, given that the 100-year event threshold was eventually
met. In sum, the storm event was ultimately the cause of the
flooding, not any defect in the berm.
Because the uncontroverted evidence showed that regardless
of any breach of duty by E&A or SID No. 237, the proximate
cause of the homeowners’ damages was the magnitude of the
storm. As such, the district court did not err in granting E&A
and SID No. 237’s motions for summary judgment.
9
Strode v. City of Ashland, 295 Neb. 44, 68, 886 N.W.2d 293, 310 (2016).
- 587 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
ECKER v. E & A CONSULTING GROUP
Cite as 302 Neb. 578
(b) Negligence of City
The homeowners also assert that the district court erred
in granting summary judgment to the City. Specifically, the
homeowners contend the City was required to ensure that the
E&A drainage studies conformed to the City’s regulations,
which required a stormwater management plan to handle the
minimum of a 100-year storm.
As we concluded above with respect to E&A and SID No.
237, even if the homeowners could show that the City breached
its duty, the homeowners cannot show that this breach was
the proximate cause of their damage. While the homeowners
direct us to varying rainfall totals in the area, all of the experts,
including the homeowners’ expert, agreed that the storm was in
excess of a 100-year event.
We need not address the various arguments that the storm
was an “act of God,” or could not otherwise have been antici-
pated, because the only relevant duty at issue was the duty to
protect against a 100-year storm, and the storm in this case
was undisputedly larger than a 100-year storm. Because the
storm exceeded the size of storm for which a duty was owed,
the proximate cause of any damage was the storm and not any
breach of duty.
The district court did not err in granting summary judgment
in favor of E&A, SID No. 237, or the City. There is no merit
to the homeowners’ arguments on appeal.
VI. CONCLUSION
The decision of the district court granting summary judg-
ment in favor of E&A, SID No. 237, and the City is affirmed.
A ffirmed.
Miller-Lerman, J., not participating.