Essink v. City of Gretna

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/26/2017 12:11 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
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ESSINK v. CITY OF GRETNA
Cite as 25 Neb. Ct. App. 53
R ene Essink et al., appellees, v.
City of Gretna, a municipal
corporation, appellant.
___ N.W.2d ___
Filed September 19, 2017. No. A-16-682.
1. Constitutional Law: Appeal and Error. Constitutional interpretation is
a question of law on which the Nebraska Supreme Court is obligated to
reach a conclusion independent of the decision by the trial court.
2. Directed Verdict: Evidence. A directed verdict is proper at the close of
all the evidence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue should be
decided as a matter of law.
3. Political Subdivisions Tort Claims Act: Jurisdiction. While not a
jurisdictional prerequisite, the filing or presentment of a claim to the
appropriate political subdivision is a condition precedent to commence-
ment of a suit under the Political Subdivisions Tort Claims Act.
4. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
5. Directed Verdict: Evidence. A directed verdict is proper at the close of
all the evidence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue should be
decided as a matter of law.
6. Eminent Domain: Words and Phrases. Inverse condemnation is a
shorthand description for a landowner suit to recover just compensation
for a governmental taking of the landowner’s property without the ben-
efit of condemnation proceedings.
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ESSINK v. CITY OF GRETNA
Cite as 25 Neb. Ct. App. 53
7. Eminent Domain: Property: Intent. Inverse condemnation has been
characterized as an action or eminent domain proceeding initiated by
the property owner rather than the public entity and has been deemed to
be available where private property has actually been taken for public
use without formal condemnation proceedings and where it appears
that there is no intention or willingness of the taker to bring such
proceedings.
8. Constitutional Law: Eminent Domain: Damages. Because the gov-
ernmental entity has the power of eminent domain, the property owner
cannot compel the return of property taken; however, as a substitute, the
property owner has a constitutional right to just compensation for what
was taken.
9. Constitutional Law: Eminent Domain: Words and Phrases. Under
the Nebraska Constitution, the requirement that property was taken or
damaged “for public use” means that the taking or damage must be
the result of the governmental entity’s exercise of the right of emi-
nent domain.
10. Eminent Domain: Damages. Not all damage to property by a govern-
mental entity in the performance of its duties occurs as a result of the
exercise of eminent domain.
11. Eminent Domain: Damages: Proximate Cause: Proof. The initial
question in an inverse condemnation case is not whether the actions of
the governmental entity were the proximate cause of the plaintiff’s dam-
ages. Instead, the initial question is whether the governmental entity’s
actions constituted the taking or damaging of property for public use.
That is, it must first be determined whether the taking or damaging
was occasioned by the governmental entity’s exercise of its power of
eminent domain. Only after it has been established that a compensable
taking or damage has occurred should consideration be given to what
damages were proximately caused by the taking or damaging for pub-
lic use.
12. Eminent Domain: Property: Proof. In order to meet the initial thresh-
old that the property has been taken or damaged for public use, it must
be shown that there was an invasion of property rights that was intended
or was the foreseeable result of authorized governmental action.
13. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
14. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort
Claims Act is the exclusive means by which a tort claim may be main-
tained against a political subdivision or its employees.
15. Political Subdivisions Tort Claims Act: Notice. With regard to a
claim’s content, substantial compliance with the statutory provisions
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supplies the requisite and sufficient notice to a political subdivision
under the Political Subdivisions Tort Claims Act.
16. ____: ____. The written claim required by the Political Subdivisions
Tort Claims Act notifies a political subdivision concerning possible
liability for its relatively recent act or omission, provides an opportunity
for the political subdivision to investigate and obtain information about
its allegedly tortious conduct, and enables the political subdivision to
decide whether to pay the claimant’s demand or defend the litigation
predicated on the claim made.
Appeal from the District Court for Sarpy County: M ax
K elch, Judge, and Paul D. Merritt, Jr., Judge, Retired.
Vacated in part, and in part reversed and remanded with
directions.
Thomas J. Culhane and Patrick R. Guinan, of Erickson &
Sederstrom, P.C., for appellant.
Melanie J. Whittamore-Mantzios, of Wolfe, Snowden, Hurd,
Luers & Ahl, L.L.P., for appellees.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Rene Essink, Brandon Henry and Amanda Henry, and
Michael Foged and Catherine Howard, now known as
Catherine Foged (collectively appellees), brought an inverse
condemnation action and a negligence action under the
Political Subdivisions Tort Claims Act (the Tort Claims Act)
against the City of Gretna (City) as a result of two sanitary
sewer backups into their homes. A jury found in favor of
appellees on the inverse condemnation claims and awarded
damages. The trial court dismissed the negligence action
under the Tort Claims Act as to Essink and the Henrys.
Following a bench trial, the court found that the Fogeds had
complied with the filing requirements of the Tort Claims Act
and that the City negligently caused the backups and awarded
damages. The City appeals from the judgment on the jury
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verdict and the trial court’s order from the bench trial. On the
inverse condemnation action, we conclude that the trial court
should have granted a directed verdict in favor of the City,
and therefore, we vacate the jury’s verdict, and reverse the
judgment of the trial court and remand the matter with direc-
tions to enter judgment in favor of the City. On the Fogeds’
negligence action under the Tort Claims Act, we determine
that the Fogeds did not comply with the filing requirements of
the Tort Claims Act, and therefore, we reverse the trial court’s
order and remand the matter to the trial court with directions
to dismiss.
BACKGROUND
The City has a wastewater collection system that collects
sewage from residences and businesses and uses gravity to
direct the collected sewage to a pumping station or treat-
ment facility. Residents connect to the City’s collection system
through private service connections that run from their proper-
ties to the City’s line.
In July and August 2010, appellees all lived on Meadow
Lane in Gretna, Nebraska. Their homes were located near
the top of the gravitational line of the City’s sewage collec-
tion system.
On July 23, 2010, sewage from the City’s collection system
backed up into Essink’s and the Fogeds’ residences. Richard
Andrews, the City’s utility superintendent, responded and
investigated by lifting the covers to the two manholes closest
to the residences and checking the flow of water. He discov-
ered that there was a blockage between the two manholes.
Andrews used the City’s sewer “jet” to clear the blockage.
He then checked manholes down the gravitational line and
observed that the collection system was clear and flowing.
Andrews was unable to determine what caused the blockage.
Andrews checked the manholes on Meadow Lane for several
days after the July 23 backup to make sure the system was
flowing, and he did not observe any further blockages or issues
with the flow.
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On August 16, 2010, sewage from the City’s collection sys-
tem backed up into appellees’ residences. Andrews responded
again and investigated to determine where the blockage was
located. He started by checking the manholes closest to the
residences, which was where he had discovered the blockage
on July 23. Andrews did not find a blockage between those
manholes or any manholes on Meadow Lane. Andrews con-
tinued checking manholes down the gravitational line until he
found the blockage several blocks away on Cherokee Drive.
The City hired Utility Services Group (USG) to jet the line and
clear the blockage. When the blockage was cleared, Andrews
checked manholes down the gravitational line and observed
that the collection system was clear and flowing. After the
August 16 backup, the City also had USG conduct a “tele-
vised” video inspection on an area of the City’s sewerlines,
which included Meadow Lane.
Sometime after the July 23 and August 16, 2010, backups,
Michael Foged’s father hand delivered two envelopes to an
employee of the City clerk’s office on his son’s behalf. The
envelopes contained bills the Fogeds received from the busi-
ness they hired to clean up their home after the backups.
In June 2011, appellees filed a written tort claim addressed
and delivered to the City’s clerk, pursuant to the Tort Claims
Act. In October 2011, before the 6-month claim period expired,
appellees filed a complaint in the district court for Sarpy County
containing an inverse condemnation claim. In December 2014,
appellees filed an amended complaint adding a negligence
claim under the Tort Claims Act.
The City moved for summary judgment with respect to
appellees’ tort claim. The district court determined that the
amended complaint related back to the original complaint
and that the tort claim was therefore not time barred by the
2-year statute of limitations. The district court then con-
cluded that because the original complaint was filed before
the 6-month claim period under the Tort Claims Act expired,
appellees failed to comply with all conditions of the Tort
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Claims Act before filing their complaint. However, the district
court found that questions of fact existed as to whether the
cleaning bills Michael Foged’s father delivered to the City
clerk’s office constituted a “claim” properly filed under the
Tort Claims Act. Accordingly, the district court granted the
City’s summary judgment motion with respect to Essink’s and
the Henrys’ tort claims, but overruled the motion as to the
Fogeds’ tort claim.
A jury trial was held on appellees’ inverse condemnation
claim. Andrews, the City’s utility superintendent, testified that
prior to July 2010, there were no reported sewer backups into
any homes on Meadow Lane or reports of any other issues with
the City’s collection system on Meadow Lane. Stephen Sherry,
a City employee with over 35 years of experience working
with the City’s sewer system, testified that the July 23 and
August 16 backups were the only sewer backups on Meadow
Lane that he was aware of.
Andrews and Sherry also testified to the City’s regular
inspection, maintenance, and repair procedures for the sewage
collection system. The City maintains a list of manholes that
are checked daily to make sure water is flowing in the system.
The manholes on the list are where there are large collection
points, low spots, or problem areas where blockages have
occurred. The manholes on Meadow Lane and Cherokee Drive
were not on this list prior to the July and August 2010 backups.
Andrews testified that the manholes on Meadow Lane were
added to the list after the August 16 backup and that they are
checked daily.
In addition to checking the manholes on the list on a daily
basis, the City also conducts random inspections of manholes
throughout the City. The City also tries to jet out all the sew-
erlines throughout the City on an annual basis, depending on
budget constraints.
Greg MacLean, a civil engineer who testified for appel-
lees, stated that in his opinion, the City’s practice of checking
certain manholes on a daily basis indicated that it knew it had
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a problem with the sewer system. He testified that knowing
there was a problem and not doing anything to address the
problem makes it certain that there will eventually be a backup
of some kind.
MacLean testified that in the video taken by USG of the
sewerlines, he observed broken and disjointed or offset pipes,
as well as tree roots in the line. He testified that in his opin-
ion, the blockages at issue were caused by the condition of the
lines. He testified that broken and disjointed pipes reduce the
flow and reduce the carrying capacity of the pipes. MacLean
further explained that during times when the flow increases
from increased usage or during wet weather, the capacity
of the pipes can be exceeded, resulting in a sewer backup
upstream.
MacLean also testified that backups can also be caused by
foreign objects users put into the collection system and that the
City has no control over nor can it predict what will be put into
the system. He also admitted that blockages in a sewage collec-
tion system can occur despite the best practices. He acknowl-
edged that when he was the Lincoln, Nebraska, sewer system
supervisor, Lincoln experienced an average of 20 backups per
year despite his best maintenance efforts.
Steven Perry, the City’s civil engineering consultant for
over 30 years, testified that he did not see anything in the USG
video that would have caused the sewer backups on Meadow
Lane. He testified that offset pipes and broken or cracked pipes
would not cause a blockage in the line. He acknowledged that
a leaky joint or an infiltration into the system, such as roots,
allows water into the system which reduces the carrying capac-
ity of the pipes. Perry testified, however, that there was noth-
ing in the system itself that would have caused a backup.
Perry testified that there is no way to predict when or where
a blockage is going to occur. He further testified that in over
30 years as an engineer dealing with sewer systems in various
communities, he was not aware of any sewer system that never
has any blockages.
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The City made a motion for directed verdict at the close
of appellees’ evidence, which the court denied. Following the
presentation of evidence by both parties, the City renewed its
motion for directed verdict, which was again denied. The jury
returned a verdict in favor of appellees on the inverse condem-
nation claim, and the district court entered judgment on the
verdict. The City made a motion for judgment notwithstanding
the verdict, which the district court denied.
Following the jury trial on the inverse condemnation claim,
a bench trial was held on the Fogeds’ tort claim. The district
court determined that the cleaning bills that were presented
to the City clerk’s office constituted a “claim” under the Tort
Claims Act, that the Fogeds substantially complied with the
Tort Claims Act, and that the City negligently caused the sewer
backups. The court awarded damages.
ASSIGNMENTS OF ERROR
The City assigns that the trial court erred in (1) failing
to direct a verdict in the City’s favor on appellees’ inverse
condemnation claims; (2) failing to grant the City judgment
notwithstanding the verdict on appellees’ inverse condemna-
tion claims; (3) submitting the takings question to the jury; (4)
improperly instructing the jury on appellees’ inverse condem-
nation claims; (5) accepting the jury’s verdict, which included
a finding that the July 23 and August 10, 2010, backups consti-
tuted a taking; (6) finding that the Fogeds filed a “claim” with
the proper city official; (7) finding that the Fogeds complied
with the Tort Claims Act’s filing requirements by delivering
cleaning bills to an employee of the City clerk’s office but who
was not the person whose duty it was to maintain the City’s
records; (8) finding that the cleaning bills the Fogeds delivered
to the City constituted a “claim” under the Tort Claims Act; (9)
finding that the City was negligent in causing the backups that
occurred at the Fogeds’ residence on July 23 and August 16;
and (10) finding that the backups were proximately caused by
the City’s negligence.
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STANDARD OF REVIEW
[1] Constitutional interpretation is a question of law on
which the Nebraska Supreme Court is obligated to reach a
conclusion independent of the decision by the trial court.
Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d
486 (2013).
[2] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law. Winder v. Union Pacific
RR. Co., 296 Neb. 557, 894 N.W.2d 343 (2017).
[3] While not a jurisdictional prerequisite, the filing or pre-
sentment of a claim to the appropriate political subdivision is a
condition precedent to commencement of a suit under the Tort
Claims Act. Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d
586 (2003).
ANALYSIS
Inverse Condemnation Claim.
The City’s first five assignments of error relate to the jury
trial on appellees’ inverse condemnation action. Included in
these assignments of error is the City’s allegation that the trial
court erred in failing to direct a verdict in its favor. We address
this assignment of error first.
[4,5] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Winder v. Union Pacific
RR. Co., supra. A directed verdict is proper at the close of all
the evidence only when reasonable minds cannot differ and can
draw but one conclusion from the evidence, that is, when an
issue should be decided as a matter of law. Id.
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[6] The City argues that based on the evidence presented at
trial, there was only one conclusion that could be drawn and
a directed verdict should have been granted in its favor on
the inverse condemnation claim. The right to bring an inverse
condemnation action derives from Neb. Const. art. I, § 21,
which provides: “The property of no person shall be taken or
damaged for public use without just compensation therefor.”
The 5th Amendment to the U.S. Constitution, made applicable
to the states through the 14th Amendment, provides: “[N]or
shall private property be taken for public use, without just
compensation.” Inverse condemnation is a shorthand descrip-
tion for a landowner suit to recover just compensation for a
governmental taking of the landowner’s property without the
benefit of condemnation proceedings. 6224 Fontenelle Blvd.
v. Metropolitan Util. Dist., 22 Neb. Ct. App. 872, 863 N.W.2d
823 (2015).
[7,8] Inverse condemnation has been characterized as an
action or eminent domain proceeding initiated by the property
owner rather than the public entity and has been deemed to
be available where private property has actually been taken
for public use without formal condemnation proceedings and
where it appears that there is no intention or willingness of the
taker to bring such proceedings. Id. Because the governmental
entity has the power of eminent domain, the property owner
cannot compel the return of property taken; however, as a
substitute, the property owner has a constitutional right to just
compensation for what was taken. Id.
[9,10] Under the Nebraska Constitution, the requirement
that property was taken or damaged “for public use” means
that the taking or damage must be the result of the governmen-
tal entity’s exercise of the right of eminent domain. Henderson
v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013).
Not all damage to property by a governmental entity in the
per­formance of its duties occurs as a result of the exercise of
eminent domain. Id.
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In Henderson v. City of Columbus, supra, the plaintiffs
sued the defendant after raw sewage flooded into their home
after a heavy rainstorm. The plaintiffs claimed that the flood-
ing damaged their home and was the result of a malfunction
of the city-run sanitary sewage system. The complaint alleged
several theories of recovery, including inverse condemnation.
After a bench trial, the court found in favor of the defendant
and dismissed the plaintiffs’ complaint, determining that the
plaintiffs failed to prove that the defendant’s actions or inac-
tions were the proximate cause of their damages. On appeal,
this court concluded that the defendant’s actions proximately
caused the backups and reversed the portion of the trial
court’s order which dismissed the inverse condemnation claim
and remanded the cause for a determination of damages.
Although for reasons different from those of the trial court,
the Nebraska Supreme Court on further review held that the
plaintiffs failed to establish an inverse condemnation claim
and affirmed the trial court’s judgment in favor of the defend­
ant. Id.
[11,12] In its opinion, the Nebraska Supreme Court stated
that the focus on proximate cause was premature and set
forth that
[t]he initial question in an inverse condemnation case
is not whether the actions of the governmental entity were
the proximate cause of the plaintiff’s damages. Instead,
the initial question is whether the governmental entity’s
actions constituted the taking or damaging of property for
public use. That is, it must first be determined whether
the taking or damaging was occasioned by the govern-
mental entity’s exercise of its power of eminent domain.
Only after it has been established that a compensable tak-
ing or damage has occurred should consideration be given
to what damages were proximately caused by the taking
or damaging for public use.
Id. at 489, 827 N.W.2d at 492. In order to meet the initial
threshold that the property has been taken or damaged for
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public use, it must be shown that there was an invasion of
property rights that was intended or was the foreseeable result
of authorized governmental action. See id.
In analyzing whether the flooding in Henderson v. City of
Columbus, supra, was an invasion of property rights that was
intended or foreseeable, the court considered the U.S. Supreme
Court case of Arkansas Game and Fish Com’n v. United
States, 568 U.S. 23, 133 S. Ct. 511, 184 L. Ed. 2d 417 (2012).
Specifically, it noted:
At issue in Arkansas Game and Fish Com’n was
“whether government actions that cause repeated flood-
ings must be permanent or inevitably recurring to consti-
tute a taking of property.” 133 S. Ct. at 518. The Court
concluded that government-induced “recurrent floodings,
even if of a finite duration, are not categorically exempt
from Takings Clause liability.” 133 S. Ct. at 515. The
temporary nature of the flooding at issue in Arkansas
Game and Fish Com’n did not automatically exclude
it from being a compensable event under the Takings
Clause and the order of dismissal therein was reversed
and the cause remanded. While time or duration was the
relevant factor in determining the existence of a com-
pensable taking at issue in Arkansas Game and Fish
Com’n, the Court further stated that “[a]lso relevant to
the takings inquiry is the degree to which the invasion is
intended or is the foreseeable result of authorized govern-
ment action.” 133 S. Ct. at 522. This additional factor of
intention or foreseeability is of particular importance in
the case before us.
Henderson v. City of Columbus, 285 Neb. 482, 492, 827
N.W.2d 486, 494 (2013) (emphasis supplied).
The Henderson court also recognized that the Arkansas
Game and Fish Com’n Court stated, in regard to the intentional
or foreseeable results of the acts of the governmental entity,
that “‘a property loss compensable as a taking only results
when the government intends to invade a protected property
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interest or the asserted invasion is the “direct, natural, or prob-
able result of an authorized activity and not the incidental or
consequential injury inflicted by the action.”’” 285 Neb. at
493, 827 N.W.2d at 495.
The Henderson court further noted that Nebraska case law
and that of other states indicate flooding may be a compensable
taking when it is frequent or recurring. The Henderson court
stated that this is consistent with the statement in Arkansas
Game and Fish Com’n v. United States, supra, that intention or
foreseeability is a factor in determining whether there has been
a taking, because the frequency of flooding could indicate that
the taking or damaging of property is a known or foreseeable
result of government action for public use.
The Henderson court concluded that the plaintiffs failed to
establish the threshold element that their property was taken
or damaged for public use by the defendant in the exercise of
its power of eminent domain. The court relied on the district
court’s finding that no evidence existed to show that the plain-
tiffs had suffered property damage as a result of recurring,
permanent, or chronic sewer backups, or that the damage was
intentionally caused by the defendant. The court concluded
that the district court’s findings supported a conclusion that
this was not a case where the defendant exercised its right of
eminent domain, because when the defendant took action, there
had not been recurring sewer backup, nor was it known or
foreseeable that the defendant’s action would take or damage
private property. Id. It further stated that the plaintiffs did not
present evidence that the defendant knew damage would occur
or could have foreseen that its actions could cause damage to
private property.
We conclude that Henderson v. City of Columbus, 285 Neb.
482, 827 N.W.2d 486 (2013), is instructive in the present case
and that therefore, the dispositive issue is whether the backups
constituted a taking or damaging of property for public use.
As stated in Henderson, in order to meet this initial threshold,
appellees had to show that the invasion of property rights was
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intended or was the foreseeable result of authorized govern-
mental action. Henderson also indicated that a flooding case
may be a compensable taking when it is frequent or recurring,
because the frequency is indicative that the taking or damaging
of property was known or foreseeable.
In the present case, the sewer backups were not frequent or
recurring. The evidence showed that there were two backups
which occurred several weeks apart as a result of two block-
ages at different areas of the sewer system. The first backup
for which appellees claim damages occurred on July 23, 2010.
After the backup was reported to the City, Andrews located
a blockage in between the two manholes closest to appel-
lees’ homes. He jetted the sewerline and cleared the blockage.
Andrews then checked manholes down the gravitational line
and observed that the collection system was clear and flowing.
He checked the manholes on Meadow Lane for several days
after the July 23 backup to make sure the system was flowing,
and he did not observe any further blockages or issues with
the flow.
The evidence was undisputed that no backups occurred on
Meadow Lane before July 2010. Sherry, who had over 35 years
of experience working with the City’s sewer system, testi-
fied that besides the two backups at issue in this case, he was
aware of only one other sewer backup that occurred in 2007
on a different street. Andrews, the City’s utility superintend­
ent, testified that prior to July 2010, there were no reported
sewer backups into any homes on Meadow Lane or reports of
any other issues with the City’s collection system on Meadow
Lane. Andrews also testified that there had been only one other
backup into a basement other than the ones at issue.
Michael Foged testified that he moved into his house in July
2009 and that he had no backups prior to July 2010. Brandon
Henry testified that he had been in his house since 2006 and
had no backup problems before July 2010. Similarly, Essink
moved into her house in 2001 and had no backups prior to
July 2010.
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There was evidence that a minor backup occurred at appel-
lees’ homes a few days before July 23, 2010, but there was
no evidence that this backup was caused by a blockage on
Meadow Lane or anywhere in the City’s sewer system. Michael
Foged and Brandon Henry testified that water came out of their
basement drains on July 19 and then receded. Essink testified
that her toilet overflowed on the same day. Michael Foged
called a plumber who indicated the Fogeds’ personal line was
clear. Michael Foged also called the City, and Andrews came
out and checked the closest manhole and told him there was no
blockage. Essink called a plumber who saw no problem with
her personal line.
On August 16, 2010, the second backup for which appellees
claim damages occurred. Andrews responded after the backup
was reported and investigated to determine where the block-
age was located. He started by checking the manholes clos-
est to the residences, which was where he had discovered the
blockage on July 23. Andrews did not find a blockage between
those manholes or any manholes on Meadow Lane. Andrews
continued checking manholes down the gravitational line until
he found the blockage several blocks away on Cherokee Drive.
The City hired USG to jet the line and clear the blockage.
When the blockage was cleared, Andrews checked manholes
down the gravitational line and observed that the collection
system was clear and flowing.
The backup on August 16, 2010, was the second backup
on Meadow Lane that was caused by a blockage in the City’s
sewer system. It was the first backup on Meadow Lane caused
by a blockage that was several blocks away.
There was no evidence presented of other backups into
appellees’ homes besides those in July and August 2010. There
was limited evidence of one other backup that occurred into
someone else’s home in 2007, but it did not take place on
Meadow Lane. Accordingly, appellees failed to present evi-
dence of frequent or recurring backups, and failed to prove that
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the City knew or could have foreseen that damage would occur
to appellees’ property.
Appellees argue the City had sufficient knowledge to make
it foreseeable that sewer backups would occur based upon
its allegedly inadequate method of maintenance and opera-
tion of the system and its list of manholes that were checked
daily. First, the manhole list does not prove foreseeability:
those manholes were checked daily because they were large
collection points, low spots in the sewerline, or areas where
some sort of blockage had occurred in the past. The manholes
where the blockages occurred in the instant case were not on
the list. Second, the possibility of backups occurring some-
where in Gretna due to inadequate maintenance and operation
is not sufficient to prove that the City knew or could foresee
that a backup was going to occur at appellees’ properties. In
Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d
486 (2013), the court quoted with approval City of Dallas v.
Jennings, 142 S.W.3d 310 (Tex. 2004), which held that before
a governmental entity may be held liable for an intentional tak-
ing, the claimant must show that the government “‘knows that
a specific act is causing identifiable harm’” or “‘knows that
the specific property damage is substantially certain to result
from an authorized government action.’” 285 Neb. at 494, 827
N.W.2d at 495 (emphasis supplied). Appellees had to prove
that the City knew or could have foreseen that damage would
occur to appellees’ property, and it failed to do so. Further,
as previously discussed, there was no evidence of frequent or
recurring backups at appellees’ homes, on Meadow Lane, or
anywhere in Gretna.
Absent evidence of frequent or recurring sewer backups
in the past, appellees failed to prove the threshold issue of
whether the backups were intended or were the foreseeable
result of authorized governmental action. Accordingly, we con-
clude appellees failed to prove that the backups constituted a
taking or damaging of property for public use. We conclude
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that the district court erred in failing to grant the City’s motion
for directed verdict.
[13] The City also assigns that the trial court erred in sub-
mitting the question of whether a taking occurred to the jury.
It relies on 6224 Fontenelle Blvd. v. Metropolitan Util. Dist.,
22 Neb. Ct. App. 872, 863 N.W.2d 823 (2015), wherein the court
held that the ultimate determination of whether government
conduct constitutes a taking or damaging of property is a
question of law for the court. We note that 6224 Fontenelle
Blvd. v. Metropolitan Util. Dist., supra, was released after the
jury trial in this matter. It was also the first time Nebraska
courts had addressed an inverse condemnation action where
there had been no physical intrusion or taking of property,
but only a damaging of property by virtue of a loss of value
to the property. Regardless, because we have concluded that
the trial court should have directed a verdict in favor of the
City and the case should not have gone to the jury, we need
not address whether the trial court erred in submitting the
takings question to the jury. Further, we need not address the
City’s remaining assignments of error that relate to the jury
trial on appellees’ inverse condemnation claim. An appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it.
In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d
469 (2017).
The Fogeds’ Claim Pursuant to
Tort Claims Act.
We next address the City’s assignments of error that relate
to the Tort Claims Act, specifically that the Fogeds failed to
file a proper claim. The City argues that the Fogeds did not
comply with the filing requirements of the Tort Claims Act in
two respects: (1) the cleaning bills presented to the City clerk’s
office did not demand the satisfaction of an obligation and
(2) the Fogeds did not deliver the cleaning bills to the proper
city official.
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[14] The Tort Claims Act is the exclusive means by which
a tort claim may be maintained against a political subdivi-
sion or its employees. Jessen v. Malhotra, 266 Neb. 393, 665
N.W.2d 586 (2003). While not a jurisdictional prerequisite,
the filing or presentment of a claim to the appropriate politi-
cal subdivision is a condition precedent to commencement of
a suit under the Tort Claims Act. Jessen v. Malhotra, supra.
Neb. Rev. Stat. § 13-920(1) (Reissue 2012) provides, in rel-
evant part:
No suit shall be commenced against any employee of a
political subdivision for money on account of damage to
or loss of property . . . caused by any negligent or wrong-
ful act or omission of the employee while acting in the
scope of his or her office or employment . . . . unless
a claim has been submitted in writing to the governing
body of the political subdivision within one year after
such claim accrued . . . .
[15] The requisite content of a written claim is addressed in
Neb. Rev. Stat. § 13-905 (Reissue 2012), which requires that
all claims “shall be in writing and shall set forth the time and
place of the occurrence giving rise to the claim and such other
facts pertinent to the claim as are known to the claimant.” With
regard to a claim’s content, substantial compliance with the
statutory provisions supplies the requisite and sufficient notice
to a political subdivision. Jessen v. Malhotra, supra.
[16] The written claim required by the Tort Claims Act noti-
fies a political subdivision concerning possible liability for its
relatively recent act or omission, provides an opportunity for
the political subdivision to investigate and obtain information
about its allegedly tortious conduct, and enables the political
subdivision to decide whether to pay the claimant’s demand or
defend the litigation predicated on the claim made. Jessen v.
Malhotra, supra.
We first address the City’s argument that the cleaning bills
that were delivered to the City clerk’s office did not demand
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the satisfaction of an obligation. The City relies on Jessen
v. Malhotra, supra, in support of its argument. In Jessen,
a physician employed by a county medical clinic allegedly
misdiagnosed a patient’s heart disease. Two days after seeing
the physician, the patient died from a myocardial infarction.
The patient’s widow sent a letter to the physician stating
that her husband had been examined by the physician and
implying that the physician negligently failed to diagnose
her husband’s condition, a condition which led to his death.
The letter further stated that the physician’s misdiagnosis
was “‘malpractice’” and that the patient’s family was “‘very
angry.’” Jessen v. Malhotra, 266 Neb. at 395, 665 N.W.2d at
589. The Nebraska Supreme Court concluded that the content
of the widow’s letter was insufficient to satisfy the require-
ments of a written claim under § 13-905 because it did not
make a demand for the satisfaction of any obligation, nor did
it convey what relief was sought by the plaintiff. The court
found that without a proper demand of the relief sought to
be recovered, a written claim fails to accomplish one of its
recognized objectives: to allow the political subdivision to
decide whether to settle the claimant’s demand or defend
itself in the course of litigation.
The court in Jessen v. Malhotra, 266 Neb. 393, 665
N.W.2d 586 (2003), referred to two cases where the Nebraska
Supreme Court had construed the predecessor to § 13-905 to
require that a written claim make a demand upon a political
subdivision for the satisfaction of an obligation rather than
merely alerting the political subdivision to the possibility of a
claim. The cases were Peterson v. Gering Irr. Dist., 219 Neb.
281, 363 N.W.2d 145 (1985), and West Omaha Inv. v. S.I.D.
No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988). Peterson
was a case in which the claim failed to meet the “demand”
requirement. The purported claim gave notice to the politi-
cal subdivision that it “‘failed to deliver water by reason of
negligence or omission of duties and responsibilities of the
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[political subdivision]’” and that the plaintiffs would hold
it liable for “‘whatever damages may result as a result of
failure to deliver water.’” Peterson v. Gering Irr. Dist., 219
Neb. at 283, 284, 363 N.W.2d at 147. The court held that the
claim did not make a demand against the political subdivi-
sion and therefore did not satisfy the requirements of the Tort
Claims Act.
The other case referred to by the Jessen court, West Omaha
Inv. v. S.I.D. No. 48, supra, is a case where the written claim
passed statutory muster. The claimant filed a claim pursuant
to the Tort Claims Act “‘for the property loss’” caused in part
by the political subdivision’s negligence, and thus made a
proper demand to the political subdivision. West Omaha Inv. v.
S.I.D. No. 48, 227 Neb. at 788, 420 N.W.2d at 294 (emphasis
supplied). In considering whether the letter sent to the politi-
cal subdivision met the Tort Claims Act’s requirements, the
court determined that the court in Peterson v. Gering Irr. Dist.,
supra, was mostly concerned that the plaintiffs made an actual
demand upon the defendant. The Supreme Court found that
the letter in West Omaha Inv. satisfied the Tort Claims Act’s
requirements, because the letter stated that property loss had
occurred and that the defendant was responsible. The West
Omaha Inv. court stated, “The letter did not merely alert the
defendant to the future ‘possibility of a claim’ for ‘whatever
damages may result’ as in Peterson. Rather, the plaintiff stated
that ‘claim is made’ against the defendant for actual property
loss caused in part by the defendant’s negligence.” 227 Neb. at
790, 420 N.W.2d at 295.
In the present case, the Fogeds submitted two envelopes
to the City clerk’s office after the sewer backups into their
home. The first envelope had a bill addressed to Michael
Foged from a cleaning and restoration company for work
done at the Fogeds’ residence. The amount of the bill was
$20,257.37. There was also a bill from a plumbing company
for $105.93. The second envelope, delivered after the second
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backup, included a bill addressed to Michael Foged from the
cleaning and restoration company for water damage cleanup at
the Fogeds’ residence in the amount of $6,944.30.
We conclude that like in Jessen v. Malhotra, supra, the
cleaning bills here do not meet the statutory requirements of a
claim, because the bills do not make a demand on the City for
the satisfaction of an obligation or relief sought to be recov-
ered. There were no other documents submitted with the clean-
ing bills. There was no written document of any sort by the
Fogeds. Although the bills show the dates the work was per-
formed, the location of the work, the reason (water damage) for
the work, and the specific amount owed for such work, there is
no demand made that the City satisfy an obligation. The bills
are addressed to the Fogeds, indicating they are responsible for
payment of the bills. The bills indicate that they are a result of
water damage in the home, but there is no allegation that the
City caused the water damage, no reference to the sewer back-
ups, and no indication as to why the City would be responsible
for the bills. The only reference to the City is a statement in
the bills where it indicates that the Fogeds would be submitting
them to the City for payment.
The content of the bills does not satisfy the requirements
of § 13-905, and therefore, we reverse the trial court’s find-
ing that the cleaning bills delivered to the City clerk’s office
constituted a “claim” under the Tort Claims Act. Accordingly,
the Fogeds failed to comply with a condition precedent to the
commencement of a suit under the Tort Claims Act and their
claim must be dismissed.
Having concluded that the cleaning bills did not demand
the satisfaction of an obligation, we need not discuss whether
the cleaning bills were delivered to the proper city official.
We also do not need to discuss whether the trial court erred in
finding that the City was negligent in causing the backups. An
appellate court is not obligated to engage in an analysis that is
not necessary to adjudicate the case and controversy before it.
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In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d
469 (2017).
CONCLUSION
We conclude that the trial court erred in failing to grant a
directed verdict in favor of the City on appellees’ inverse con-
demnation action. Therefore, we vacate the jury’s verdict, and
reverse the judgment of the trial court and remand the matter
to the trial court with directions to enter judgment in favor of
the City. We further conclude that the trial court erred in find-
ing that the Fogeds complied with the filing requirements of
the Tort Claims Act, and therefore, we reverse the trial court’s
order in regard to the Fogeds’ tort claim and remand the matter
to the trial court with directions to dismiss.
Vacated in part, and in part reversed
and remanded with directions.