Buck's, Inc. v. City of Omaha

Decisions of the Nebraska Court of Appeals
BUCK’S, INC. v. CITY OF OMAHA 541
Cite as 22 Neb. Ct. App. 541
Buck’s, Inc., appellant, v.
City of Omaha, appellee.
___ N.W.2d ___
Filed November 25, 2014. Nos. A-13-980, A-13-981.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine
the relevancy and admissibility of evidence, and such determinations will not be
disturbed on appeal unless they constitute an abuse of that discretion.
3. Rules of Evidence: Expert Witnesses. If scientific, technical, or other special-
ized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion
or otherwise.
4. Trial: Witnesses. If a witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or inferences which
are (1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of his testimony or the determination of a fact in issue.
5. Affidavits. Statements in affidavits as to opinion, belief, or conclusions of law
are of no effect.
6. Trial: Witnesses: Proof. The party offering testimony has the burden to lay foun-
dation by showing that the witness has personal knowledge of the subject matter
of the testimony.
7. Evidence: Words and Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would be without
the evidence.
8. Constitutional Law: Highways: Easements. The right of an owner of property
which abuts on a street or highway to have ingress to and egress from his prem-
ises by way of the street is a property right in the nature of an easement in the
street, and the owner cannot be deprived of such right without due process of law
and compensation for loss.
9. Property: Highways. The right of access of an abutting property owner to a
public road is not an unlimited one.
10. Property. A property owner is entitled to reasonable access to abutting private
property if reasonable access remains.
11. Property: Highways: Damages. As a general rule, an abutting landowner has no
vested interest in the flow of traffic past his premises and any damages sustained
because of a diversion of traffic are not compensable. This rule applies to the
control of turns by double lines, islands, and median strips.
12. Property: Highways. Mere circuity of travel to and from real property, result-
ing from a lawful exercise of the police power in controlling traffic, does not
of itself constitute an impairment of the right of ingress and egress to and from
Decisions of the Nebraska Court of Appeals
542 22 NEBRASKA APPELLATE REPORTS
such property where the resulting interference is but an inconvenience shared in
common with the general public and is necessarily in the public interest in mak-
ing highway travel safer and more efficient.
13. Property: Highways: Damages. If a property owner has the same access to the
general highway system as before a diversion of traffic, this injury is the same in
kind as that suffered by the general public and is not compensable.
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Affirmed.
Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno
& Vogt, L.L.C., for appellant.
Bernard J. in den Bosch, Deputy Omaha City Attorney, and
William Acosta-Trejo for appellee.
Inbody, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Buck’s, Inc., appeals from the order of the district court for
Douglas County denying a motion for summary judgment filed
by Buck’s and granting summary judgment in favor of the City
of Omaha (the City). On appeal, Buck’s also challenges cer-
tain evidentiary rulings. Finding no merit to the arguments on
appeal, we affirm the district court’s decision.
BACKGROUND
Buck’s is a Nebraska corporation that owned and operated a
gas station on the northwest corner of 144th Street and Stony
Brook Boulevard in Omaha, Douglas County, Nebraska. In
August 2009, the City eliminated a cut in the median on Stony
Brook Boulevard, which then prevented eastbound traffic from
turning left in order to directly access Buck’s property. Before
the City closed the median cut, Buck’s had two access points to
Stony Brook Boulevard and one access point via an easement
across a neighboring property. After the median cut was elimi-
nated, Buck’s continued to have the same three access points,
but direct access to the property by eastbound traffic on Stony
Brook Boulevard was eliminated.
Buck’s instituted an inverse condemnation action against
the City in August 2010. A board of appraisers was appointed,
Decisions of the Nebraska Court of Appeals
BUCK’S, INC. v. CITY OF OMAHA 543
Cite as 22 Neb. Ct. App. 541
and Buck’s was awarded $30,000 in damages. Buck’s and the
City both appealed to the district court, and the parties filed
cross-motions for summary judgment. At the summary judg-
ment hearing, the City offered into evidence the affidavits of
Todd Pfitzer and Tim Phelan.
Pfitzer has been the City’s engineer since October 2010, and
he previously served as the City’s traffic engineer, beginning
in 2006. In his affidavit, Pfitzer stated that he was involved
in reviewing plans for the project concerning the elimination
of the median cut and made recommendations for the best and
safest method for handling the traffic movement. He claimed
that the decision to eliminate the median cut was made to
address the anticipated increased traffic accessing the area due
to the development of a grocery store site. He said that in order
to minimize traffic conflict and allow for smoother and safer
traffic flow, the median cut was eliminated. Pfitzer indicated
that prior to this project, Buck’s had two access points to Stony
Brook Boulevard and a third access point onto neighboring
property, and that the same three access points existed after
construction on the median. Pfitzer opined that from his point
of view as a traffic engineer, Buck’s suffered no decrease of
ingress or egress.
Phelan is the City’s right-of-way manager. His affidavit
indicated that in the course of performing his job duties, he
is involved in the acquisition of rights-of-way for various
public projects. Phelan indicated that he is familiar with the
project regarding the median on Stony Brook Boulevard and
that the City, in conjunction with this project, did not acquire
any property interests because the median improvements were
made solely in the City’s right-of-way. Specifically, Phelan
averred that the City did not acquire any property or property
interest from Buck’s for this project. Phelan stated that prior
to the project’s completion, Buck’s had three entrances to its
property, and that after construction on the median, Buck’s
continued to have the same three entrances.
The affidavits were received into evidence over objections
by Buck’s. Ultimately, the district court denied the motion for
summary judgment filed by Buck’s and entered summary judg-
ment in favor of the City. Buck’s now appeals.
Decisions of the Nebraska Court of Appeals
544 22 NEBRASKA APPELLATE REPORTS
ASSIGNMENTS OF ERROR
Buck’s assigns, renumbered and restated, that the district
court erred in (1) receiving the affidavits into evidence, (2)
failing to grant its motion for summary judgment, and (3)
granting the City’s motion for summary judgment.
STANDARD OF REVIEW
Summary judgment is proper if the pleadings and admissible
evidence offered at the hearing show that there is no genuine
issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. Latzel v. Bartek, 288
Neb. 1, 846 N.W.2d 153 (2014). In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted,
and gives that party the benefit of all reasonable inferences
deducible from the evidence. Id.
ANALYSIS
Evidentiary Rulings.
[1,2] Buck’s argues that the district court erred in receiv-
ing the affidavits of Pfitzer and Phelan into evidence because
the City failed to disclose them as experts by the discovery
deadline and because the affidavits lacked foundation and
were irrelevant. In proceedings where the Nebraska Evidence
Rules apply, the admissibility of evidence is controlled by
the Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. In re Invol. Dissolution of Wiles Bros., 285 Neb.
920, 830 N.W.2d 474 (2013). A trial court has the discretion
to determine the relevancy and admissibility of evidence, and
such determinations will not be disturbed on appeal unless they
constitute an abuse of that discretion. Id.
[3,4] Neb. Rev. Stat. § 27-702 (Reissue 2008) governs the
admissibility of expert testimony and provides that the witness
must be qualified as an expert: “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness quali-
fied as an expert by knowledge, skill, experience, training, or
Decisions of the Nebraska Court of Appeals
BUCK’S, INC. v. CITY OF OMAHA 545
Cite as 22 Neb. Ct. App. 541
education, may testify thereto in the form of an opinion or
otherwise.” If a witness is not testifying as an expert, his testi-
mony in the form of opinions or inferences is limited to those
opinions or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understand-
ing of his testimony or the determination of a fact in issue.
Neb. Rev. Stat. § 27-701 (Reissue 2008).
[5] We have reviewed the affidavits and find that the district
court did not err in overruling the objections and receiving the
affidavits into evidence. Pfitzer’s and Phelan’s affidavits con-
tained statements based on their own experiences and personal
knowledge from their involvement in the median project. This
is proper lay testimony under § 27-701. Although Pfitzer’s
affidavit included his opinion that Buck’s suffered no decrease
of ingress or egress, the court was required to give no effect
to that opinion. See Whalen v. U S West Communications, 253
Neb. 334, 570 N.W.2d 531 (1997) (statements in affidavits as
to opinion, belief, or conclusions of law are of no effect), dis-
approved on other grounds, Gaytan v. Wal-Mart, 289 Neb. 49,
853 N.W.2d 181 (2014).
[6,7] Buck’s also contends that the affidavits lacked foun-
dation and were irrelevant based on the mistaken belief that
Pfitzer and Phelan were expert witnesses. The party offering
testimony has the burden to lay foundation by showing that
the witness has personal knowledge of the subject matter of
the testimony. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109
(1993). Relevant evidence means evidence having any tend­
ency to make the existence of any fact that is of consequence
to the determination of the action more probable or less prob-
able than it would be without the evidence. Neb. Rev. Stat.
§ 27-401 (Reissue 2008).
We find no abuse of discretion in the district court’s conclu-
sion that the affidavits were supported by sufficient founda-
tion and contained relevant evidence. Pfitzer and Phelan both
stated that they were involved in the construction project on
the median. Thus, their personal knowledge formed the basis
of their factual statements. In addition, both affidavits indi-
cated the witnesses’ observations regarding the three access
points to Buck’s. Because ingress to and egress from Buck’s
Decisions of the Nebraska Court of Appeals
546 22 NEBRASKA APPELLATE REPORTS
was at issue in this case, the affidavits contained relevant
information. Consequently, the district court did not abuse its
discretion in overruling the foundational and relevancy objec-
tions and in receiving the affidavits into evidence.
Summary Judgment.
Buck’s asserts that the district court erred in denying its
motion for summary judgment and granting summary judgment
in favor of the City. Buck’s argues that the City substantially
impaired ingress to and egress from its property, resulting in a
compensable taking. We disagree.
[8-10] The right of an owner of property which abuts on a
street or highway to have ingress to and egress from his prem-
ises by way of the street is a property right in the nature of
an easement in the street, and the owner cannot be deprived
of such right without due process of law and compensation
for loss. Maloley v. City of Lexington, 3 Neb. Ct. App. 976, 536
N.W.2d 916 (1995). The right of access of an abutting prop-
erty owner to a public road is not an unlimited one, however.
Painter v. State, 177 Neb. 905, 131 N.W.2d 587 (1964). He
is entitled to reasonable access to abutting private property if
reasonable access remains. Id.
The district court in the present case relied on Painter to
hold that because Buck’s has the same access it did before the
City closed the median cut, the injury to Buck’s was the same
in kind as that suffered by the general public and is not com-
pensable. We agree and likewise find that Painter controls the
outcome of this case.
[11-13] In Painter, the plaintiff contended that the construc-
tion of islands in the street which prevented left turns onto the
plaintiff’s property from the west constituted a compensable
damage. On appeal, the Supreme Court reiterated the general
rule that an abutting landowner has no vested interest in the
flow of traffic past his premises and that any damages sus-
tained because of a diversion of traffic are not compensable.
Id. This rule applies to the control of turns by double lines,
islands, and median strips. Id. Mere circuity of travel to and
from real property, resulting from a lawful exercise of the
police power in controlling traffic, does not of itself constitute
Decisions of the Nebraska Court of Appeals
BUCK’S, INC. v. CITY OF OMAHA 547
Cite as 22 Neb. Ct. App. 541
an impairment of the right of ingress and egress to and from
such property where the resulting interference is but an incon-
venience shared in common with the general public and is nec-
essarily in the public interest in making highway travel safer
and more efficient. Id. If the owner has the same access to the
general highway system as before, this injury is the same in
kind as that suffered by the general public and is not compen-
sable. Id.
In other words, the Supreme Court in Painter summarized
the situation as follows:
Property owners abutting upon a public thoroughfare have
a right to reasonable access thereto. This right of ingress
and egress attaches to the land. It is a property right as
complete as ownership of the land itself. But as to dam-
ages claimed by reason of a change in the flow of traffic
by placing medians in the center of a street, they result
from the exercise of the police power by the state and
are noncompensable as being incidental to the doing of a
lawful act. As such, they are wholly unrelated to the tak-
ing of the land for the purpose of widening the street and
constitute no element of damage to the land remaining
after the taking.
177 Neb. at 911, 131 N.W.2d at 591.
The argument made by Buck’s in the present case is iden-
tical to that asserted by the plaintiff in Painter, which the
Supreme Court rejected. Elimination of the median cut consti-
tutes a change in the flow of traffic and affects Buck’s in the
same manner as the general public. After the median cut was
closed, Buck’s still had access to Stony Brook Boulevard. The
fact that left-hand turns are now restricted is but an inconve-
nience shared with the general public.
In addition, according to Pfitzer’s affidavit, if the median
cut had not been closed, traffic queuing could not be contained
within “channelized left turn pockets” and safety would be
compromised. Thus, the City determined that closing the cut
in the median was necessary for traffic safety. After the change
to the median, Buck’s retains the same three access points
that it previously had and retains the ability to access Stony
Brook Boulevard. As a result, Buck’s is not entitled to any
Decisions of the Nebraska Court of Appeals
548 22 NEBRASKA APPELLATE REPORTS
compensation. We therefore find that the district court did not
err in denying Buck’s motion for summary judgment and grant-
ing summary judgment in favor of the City.
Buck’s directs our attention to Maloley v. City of Lexington,
3 Neb. Ct. App. 976, 536 N.W.2d 916 (1995), to support its posi-
tion, but we find this reliance misplaced. In Maloley, the
evidence established that the City of Lexington temporarily
closed the street directly in front of the plaintiff’s property.
Here, there is no allegation that the City closed Stony Brook
Boulevard, prohibiting access to Buck’s. Rather, the City
modified the median in the middle of Stony Brook Boulevard,
which, according to Painter v. State, 177 Neb. 905, 131
N.W.2d 587 (1964), is the lawful exercise of the police power
and is noncompensable.
CONCLUSION
We conclude that the district court properly overruled the
objections to the affidavits and received them into evidence.
In addition, we find no error with respect to the district
court’s rulings on the parties’ motions for summary judgment.
Accordingly, we affirm.
Affirmed.