Henderson v. City of Columbus

• Decision Date: 03 April 2012
• Docket Number: No. A–11–060.,A–11–060.
• Citation: 811 N.W.2d 699,19 Neb.App. 668
• Parties: James HENDERSON and Jamie Henderson, husband and wife, appellants, v. CITY OF COLUMBUS, a municipal corporation, appellee.
• Court: Nebraska Court of Appeals

19 Neb.App. 668

811 N.W.2d 699

James HENDERSON and Jamie Henderson, husband and wife, appellants,

v.CITY OF COLUMBUS, a municipal corporation, appellee.

No. A–11–060.

Court of Appeals of Nebraska.

Filed April 3, 2012.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought pursuant to the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed on appeal unless they are clearly wrong, and when determining the sufficiency of the evidence to sustain the verdict, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

2. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

3. Negligence: Words and Phrases. Ordinary negligence is defined as doing something that a reasonably careful person would not do under similar circumstances, or failing to do something that a reasonably careful person would do under similar circumstances.

4. Political Subdivisions Tort Claims Act: Negligence. A negligence action brought under the Political Subdivisions Tort Claims Act has the same elements as a negligence action against an individual.

5. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately caused by the failure to discharge that duty.

6. Negligence. In a negligence case, a defendant's conduct should be examined not in terms of whether there is a duty to perform a specific act, but, rather, whether the conduct satisfied the duty placed upon individuals to exercise such degree of care as would be exercised by a reasonable person under the circumstances.

7. Negligence. Foreseeable risk is an element in the determination of negligence, not legal duty.

8. Negligence. In order to determine whether appropriate care was exercised, the fact finder must assess the foreseeable risk at the time of the defendant's alleged negligence.

9. Governmental Subdivisions: Property: Words and Phrases. Inverse condemnation is shorthand for a governmental taking of or damage to a landowner's property without the benefit of condemnation proceedings.

10. Constitutional Law: Actions: Governmental Subdivisions: Property: Damages. The right of a landowner to seek damages from the government in the form of an inverse condemnation claim derives from article I, § 21, of the Nebraska Constitution, which provides: “The property of no person shall be taken or damaged for public use without just compensation therefor.”

11. Constitutional Law: Eminent Domain. Nebraska's constitutional right to just compensation includes compensation for damages occasioned in the exercise of eminent domain and, therefore, is broader than the federal right, which is limited only to compensation for a taking.

12. Constitutional Law: Eminent Domain: Damages: Words and Phrases. The words “or damaged” in Neb. Const. art. I, § 21, include all actual damages resulting from the exercise of the right of eminent domain which diminish the market value of private property.

13. Governmental Subdivisions: Property: Proximate Cause: Words and Phrases. In an inverse condemnation action, 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.

14. Proximate Cause: Proof. When multiple causes act to produce a single injury, any one of those acts can still qualify as a proximate cause of that harm so long as it was a substantial factor in bringing about the injury.

15. Constitutional Law: Actions: Governmental Subdivisions: Property: Proof. In an action based on the constitutional provision that no person's property shall be taken or damaged for public use without just compensation, proof of negligence or commission of a wrongful act is not necessary to recovery by a plaintiff.

16. Governmental Subdivisions: Property: Negligence. Negligence is not part of the analytical calculus in an inverse condemnation claim.

17. Appeal and Error. A case is not authority for any point not necessary to be passed on to decide it or not specifically raised as an issue addressed by the court.

18. Governmental Subdivisions: Property: Proximate Cause: Proof. The element of proximate causation for inverse condemnation is established if the plaintiff can prove a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.

19. Governmental Subdivisions: Property: Proximate Cause. In an inverse condemnation case, even where an independent force contributes to the injury, a public improvement remains a substantial concurrent cause if the injury occurred in substantial part because the improvement failed to function as it was intended.

20. Constitutional Law: Governmental Subdivisions: Property. The aim of the Takings Clause of the Fifth Amendment to the U.S. Constitution is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

George H. Moyer, of Moyer & Moyer, Madison, for appellants.

Erik C. Klutman and Mark Sipple, of Sipple, Hansen, Emerson, Schumacher & Klutman, Columbus, for appellee.

Renee Eveland, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., Lincoln, for amici curiae Marlin G. Delimont et al.

IRWIN, SIEVERS, and MOORE, Judges.

SIEVERS, Judge.

INTRODUCTION

This appeal stems from an action for property damage which occurred on July 9, 2004, due to raw sewage flooding the home of James Henderson and Jamie Henderson and the homes of 15 other Columbus property owners who assigned to the Hendersons their rights to sue for damages. The Hendersons sued the City of Columbus, claiming that the flooding and consequent damage were caused by the malfunction of the city-run sanitary sewage disposal system. In their complaint, the Hendersons asserted as theories of recovery negligence, inverse condemnation, nuisance, and trespass. After a bifurcated bench trial in the district court for Platte County on the sole issue of liability, the court found in favor of the City of Columbus and dismissed the Hendersons' complaint with prejudice. On appeal, the Hendersons allege that the district court's judgment is contrary to the law and the evidence.

FACTUAL BACKGROUND

Because this dispute deals with the alleged breakdown of the sanitary sewer system for the City of Columbus (hereinafter the City), a basic understanding of that system is helpful at the outset. The City's sanitary sewer system utilizes a gravity flow system whereby sewage is projected underground toward its ultimate destination, the City's wastewater treatment facility, through angled pipelines via the force of gravity. There are 19 “lift stations” positioned throughout the City which sewage flows into via the pipelines. When sewage rises to a certain predetermined level within a lift station, a switch is automatically tripped to start an electronic pump that moves the sewage to a higher elevation through a “force main,” which is essentially a pipe under pressure. The sewage is then discharged back into the gravity flow system, where the cycle is repeated as the sewage makes its way to the wastewater treatment facility. This gravity flow and lift station system is necessitated by the fact that terrain where Columbus is located is essentially flat.

The City's lift stations typically have two pumps that are automatically alternated in order to equalize wear. Normally only one pump, the “lead pump,” is activated at a time. However, in the event the volume of sewage within the lift station rises to a second predetermined point, the second, “lag,” pump is automatically activated in order to manage the greater volume of sewage. With both pumps running, a total of 250 gallons of sewage per minute are pumped downstream, compared to 175 gallons per minute with only one pump running.

By way of directional orientation, the Hendersons' residence is located just off the corner of 26th Street and 26th Avenue in Columbus. Twenty–Sixth Street runs east to west, and 26th Avenue stretches north to south. Approximately three blocks north of the Hendersons' home, via 26th Avenue, is the 26th Avenue lift station, which is approximately 20 feet deep and 8 feet in diameter. The wastewater systems of the houses in the vicinity of the 26th Avenue lift station all feed into one main, called the 26th Avenue trunkline. With the exception of the homes of assignors Harvey and Shirdelle Mueller, Allen and Christie Stubbert, and Bill and Heather Elton, the homes of all of the assignors in this case are connected to the 26th Avenue trunkline.

Sewage enters the 26th Avenue lift station from a 12–inch–diameter gravity flow pipeline from the north. Within the lift station, sewage is then pumped to a higher elevation and pushed south through a 6–inch–diameter force main. After traveling a half block, sewage is forced into manhole 7, which is located at the intersection of 30th Street and 26th Avenue. Sewage also entered manhole 7 from the west through the residential gravity flow system. Manhole 7 is about 3.75 feet deep and 3 feet in diameter. Sewage is then forced out of manhole 7 to the south through a 6–inch–diameter force main. Although the system was modified in 2005, in 2004, at the corner of 28th Street and 26th Avenue, the 6–inch force main connected to an 8–inch–diameter pipeline and continued to flow to the south through the City's gravity flow system.

We note that in addition to the sanitary sewer system,...