I. THE COURT OF APPEALS PUTS A FINER POINT ON THE FORESEEABILITY ELEMENT FOR INVERSE CONDEMNATION CLAIMS.
The case is Essink v. City of Gretna, 25 Neb. App. 53, 901 N.W.2d 466 (2017). In that case, the plaintiffs sued the City of Gretna for inverse condemnation action and negligence as a result of two sanitary sewer backups. These were the only two backups Plaintiffs experienced. The inverse condemnation claim was tried to a jury. The Court allowed the jury to consider general theories of negligence that it was foreseeable that backups were likely to occur somewhere within the City of Gretna's sewer system.
The initial question in an inverse condemnation case is not whether the actions of the governmental entity are the proximate cause of the plaintiffs' damages. Instead, the initial question is whether the governmental entity's actions constitute 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. Essink v. City of Gretna, 25 Neb. App. 53, 901 N.W.2d 466-474; citing Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013). In order to meet the initial threshold 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. Id.
On appeal, the Court of Appeals reversed the jury verdict and ordered the case remanded with directions to enter a directed verdict in the City's favor. The Court found that general theories of negligence cannot be used to support a claim for inverse condemnation. Instead, plaintiffs must prove that the backups were: 1) both frequent or recurring; and, 2) that the City knew or could have foreseen that damage would occur to plaintiffs' specific property. Because plaintiffs failed to present evidence of frequent or recurring backups and failed to prove that the City knew that damage would occur to their specific property as a result of the backup, the Court of Appeals concluded that a directed verdict should have been entered.
II. THE COURT OF APPEALS AFFIRMS THAT THE NOTICE REQUIREMENT UNDER THE POLITICAL SUBDIVISION TORT CLAIMS ACT IS NOT A MERE TECHNICALITY.
Under the Political Subdivision Tort Claims Act, 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 wrongful 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 occurred. Neb. Rev. Stat. § 13‑920(1). All claims must be in writing and 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. Neb. Rev. Stat. § 13-905. A written claim to the political subdivision must demand the satisfaction of an obligation. Jessen v. Malhotra, Essink at 478 citing Jessen v. Malhotra 266 Neb. 393, 665 N.W.2d 586 (2003).
In Essink, the plaintiffs submitted their cleaning bills to the City Clerk's office and argued these bills were sufficient to meet the notice requirements under the Act. But the bills did not demand the satisfaction of an obligation. Also, there were no documents submitted with the cleaning bills. The bills only showed the date the work was performed, the location of the work, the reason for the work and the specific amount for such work. The bills were addressed to the plaintiffs indicating they were responsible for payment of the bills. And, the bills only indicated that they were the result of water damage in the plaintiffs' home - there was no allegation that the City caused the water damage, no reference to the sewer backups and no indication as to why the City would be responsible for the bills. The only reference to the City was a statement in the bills that indicated Plaintiffs would submit them to the City for payment. The Court of Appeals concluded that the content of the bills did not satisfy the notice requirements under the Act. It therefor reversed the trial court's finding that the cleaning bills constituted a claim and overturned the judgment in plaintiffs' favor on their negligence claim.