Hutmacher v. City of Mead

• Decision Date: 07 October 1988
• Docket Number: No. 87-065,87-065
• Parties: Douglas HUTMACHER and Barbara Hutmacher, Appellants, v. CITY OF MEAD, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 276

430 N.W.2d 276

230 Neb. 78

Douglas HUTMACHER and Barbara Hutmacher, Appellants, v. CITY OF MEAD, Nebraska, Appellee.

No. 87-065.

Supreme Court of Nebraska.

Oct. 7, 1988.

Syllabus by the Court

1. Trial: Pleadings: Pretrial Procedure. On a motion for judgment on the pleadings, the court may consider all the pleadings and give judgment for the party entitled thereto.

2. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the pleadings admits the truth of all well-pleaded facts in the opposing party's pleadings, together with all reasonable inferences to be drawn therefrom, and the moving party admits, for the purpose of the motion, the untruth of the movant's allegations insofar as they have been controverted.

3. Pleadings: Actions. A petition should not leave uncertainty as to the theory on which the pleader wishes to proceed.

4. Pleadings: Actions. In actions not involving extraordinary remedies, general pleadings are to be liberally construed in favor of the pleader.

5. Limitations of Actions. The point at which a statute of limitations commences to run must be determined from the facts of each case and the language of the governing statute.

6. Political Subdivisions Tort Claims Act: Limitations of Actions. For the purposes of Neb.Rev.Stat. § 23-2416(1) (Reissue 1983), a cause of action accrues, and the period of limitations begins to run, when a potential plaintiff discovers, or in the exercise of reasonable diligence should discover, the political subdivision's negligent act or omission.

7. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from material facts, and when the moving party is entitled to judgment as a matter of law.

Jeffrey W. Meyers of Frost, Meyers, Guilfoyle & Westover, and Richard K. Lydick, Omaha, for appellants.

James L. Rold of Rold, Peppard & Piccolo, P.C., Omaha, for appellee.

HASTINGS, C.J., CAPORALE, and GRANT, JJ., and MORAN and BROWER, District Judges.

CAPORALE, Justice.

In this action brought pursuant to the provisions of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983 & Cum.Supp.1986), now Neb.Rev.Stat. §§ 13-901 et seq. (Reissue 1987), the plaintiffs-appellants, Douglas Hutmacher and his wife, Barbara Hutmacher, claim to have suffered damages caused by defendant-appellee, City of Mead. The city moved for summary judgment on the grounds (1) that the Hutmachers allege the damages resulted from a misrepresentation for which the city is exempted from liability and (2) that, in any event, the cause is time-barred. The district court sustained the city's motion, and this appeal followed. The Hutmachers claim the district court erred in accepting either of the city's asserted bases for the dismissal of their action. We reverse and remand for further proceedings.

The first ground for seeking dismissal of the action rests on the provision of § 23-2409(5) (Reissue 1983) which exempts a political subdivision such as the city from liability arising out of claims based on misrepresentation. Thus, in this connection, the city in effect claims that it is entitled to judgment because the Hutmachers' petition fails to state a cause of action. Therefore, for the limited purpose of this issue, the city's motion is in reality one for judgment on the pleadings rather than one for summary judgment, as erroneously denominated. White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988); Wood v. Tesch, 222 Neb. 654, 386 N.W.2d 436 (1986).

On such a motion the court may consider all the pleadings and give judgment for the party entitled thereto. Moreover, a motion for judgment on the pleadings admits the truth of all well-pleaded facts in the opposing party's pleadings, together with all reasonable inferences to be drawn therefrom, and the moving party admits, for the purpose of the motion, the untruth of the movant's allegations insofar as they have been controverted. White v. Ardan, Inc., supra; Wood v. Tesch, supra; Mueller v. Union Pacific Railroad, 220 Neb. 742, 371 N.W.2d 732 (1985). Consequently, we turn our attention to the allegations contained in the relevant pleadings, which consist of the Hutmachers' petition and the city's answer; the Hutmachers' reply in effect denies the allegations made in the city's answer.

The petition alleges that the Hutmachers had directed the city to shut off the water service to their building "at the street"; that the city represented it had done so when it "knew, or should have known," that the shutoff valve was damaged and incapable of being shut off; that they relied on the city's representation that the water had been shut off; that the water pipe within their building "ruptured causing severe ... damage"; and that the city's failure "to properly shut off the street valve or to disclose ... that said valve was not shut off as represented" constituted the "sole and proximate cause of the damage."

The city's answer denies each of the material allegations contained in the Hutmachers' petition; asserts the city violated no duty owed the Hutmachers, as the water supply could not be shut off without digging "down several feet to the actual physical location of the curbside shutoff"; alleges the Hutmachers were contributorily negligent and assumed the risk; and further asserts that any cause of action the Hutmachers may have had is time-barred because they failed to present their claim to the city until more than "one (1) year after the allegedly-negligent act."

It is true the petition in part sounds in misrepresentation, but the allegation that the city failed "to properly shut off the street valve" sounds in negligence. Although a petition should not leave uncertainty as to the theory on which the pleader wishes to proceed, see B.C. Christopher & Co. v. Danker, 196 Neb. 518, 244 N.W.2d 79 (1976), we have held that in actions not involving extraordinary remedies, general pleadings are to be liberally construed in favor of the pleader. See, Gilbert v. Vogler, 197 Neb. 454, 249 N.W.2d 729 (1977); George Rose Sodding & Grading Co., Inc. v. City of Omaha, 187 Neb. 683, 193 N.W.2d 556 (1972), appeal after remand 190 Neb. 12, 205 N.W.2d 655 (1973). Moreover, by alleging in its answer that the Hutmachers were contributorily negligent and had assumed the risk, the city made clear that it interpreted the Hutmachers' petition as claiming the city was negligent in failing to shut off the water supply. Under the circumstances, we judge the petition to plead a cause of action in negligence, and therefore must conclude that the city's first ground for dismissal of the Hutmachers' action is not well founded.

That determination does not, however, end our review, for if, as the city claims in its second ground, the action is time-barred, then the district court's judgment is nonetheless correct and must be affirmed. Resolution of this issue depends on the contents of the depositions, answers to interrogatories, and the affidavit received in evidence, as well as on the allegations in the pleadings. Thus, the city's motion in this regard is one seeking summary judgment. See, Glen Park Terr. # 1 Homeowners Assn. v. M. Timm, Inc., 230 Neb. 48, 430 N.W.2d 40 (1988); Kliewer v. Wall Constr. Co., 229 Neb. 867, 429 N.W.2d 373 (1988); Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988).

The record establishes that the Hutmachers' building contains an apartment on the second floor and commercial space on the first floor. The commercial space had been rented to and was occupied by Hoots Inc., a business enterprise owned by Douglas Hutmacher's mother, Joan Anderson, which enterprise is engaged in the manufacture of fishing buoy markers.

Because Anderson was responsible for the payment of the utility bills, she, apparently not being in need of water, contacted the city in January of 1984 and requested discontinuance of water service to the building. A shutoff valve located inside the building had previously been turned off, so the city needed only to turn the water off at the "curb" valve. Such is accomplished by inserting a "key," a metal rod with a slot at one end designed to fit into a notch on the valve, into an opening located outside the building and then turning the valve within said opening to the "off" position.

The city's maintenance superintendent testified that the manner of installation of this particular valve required that the key be "ground down" in order to shut the valve off. He claims to have done what was required and then reported to Anderson that the water had been shut off.

Anderson testified that although a portion of the raw materials for the buoys was kept in the dirt basement, she did not make frequent trips to that area because she was afraid of snakes. Her husband was in the basement in July of 1984, but saw no signs of water or moisture. No one connected with the building noticed any marked changes in the property between January and April 1985, except that the doors in the...