Millman v. County of Butler

• Citation: 458 N.W.2d 207,235 Neb. 915
• Decision Date: 27 July 1990
• Docket Number: No. 88-314,88-314
• Parties: J.T. MILLMAN, Personal Representative of the Estate of Christopher T. Duncan, Deceased, Appellant, v. COUNTY OF BUTLER, Nebraska, Appellee.
• Court: Supreme Court of Nebraska

Page 207

458 N.W.2d 207

235 Neb. 915

J.T. MILLMAN, Personal Representative of the Estate of Christopher T. Duncan, Deceased, Appellant, v. COUNTY OF BUTLER, Nebraska, Appellee.

No. 88-314.

Supreme Court of Nebraska.

July 27, 1990.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Negligence. As a result of the Nebraska Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 13-901 et seq. (Reissue 1987), the defense of governmental immunity is abrogated concerning a cause of action based on a political subdivision's negligence under circumstances in which a private person would be liable for injury and damages.

2. Jurisdiction: Words and Phrases. Jurisdiction is the inherent power or authority to decide a case.

3. Political Subdivisions Tort Claims Act: Jurisdiction. Compliance with the filing or presentment of claim provision in Neb.Rev.Stat. § 13-905 (Reissue 1987) of the Nebraska Political Subdivisions Tort Claims Act is not a jurisdictional prerequisite for adjudication of a tort claim against a political subdivision.

4. Political Subdivisions Tort Claims Act: Notice. As a condition precedent to commencement of a suit brought under the Political Subdivisions Tort Claims Act, one must timely file a proper claim with the appropriate political subdivision.

5. Actions: Words and Phrases. A cause of action is judicial protection of one's recognized right or interest, when another, owing a corresponding duty not to invade or violate such right or interest, has caused a breach of that duty.

6. Pleadings: Actions: Words and Phrases. In reference to a petition, a cause of action means a statement of the subject matter on which a plaintiff claims a right to a remedy.

7. 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 a private individual.

8. Political Subdivisions Tort Claims Act: Negligence: Notice. Filing or presentment of a claim under the Political Subdivisions Tort Claims Act is neither a condition precedent to a political subdivision's tort liability nor a substantive element for a claimant's recovery in a negligence action against a political subdivision 9. Political Subdivisions Tort Claims Act: Negligence: Notice. Under the Political Subdivisions Tort Claims Act, a plaintiff does not have immediate and unrestricted access to a court for redress on account of a political subdivision's negligence, but has a qualified right to commence a negligence action, a limitation on the right to commence a tort action against a political subdivision in the form of a precedent filed claim.

but is a condition precedent to commencement of a negligence action against a political subdivision.

10. Political Subdivisions Tort Claims Act: Limitations of Actions. A plaintiff's right to sue under the Political Subdivisions Tort Claims Act is, in turn, limited by the political subdivision's right to ascertain the merits and value of the plaintiff's claim.

11. Political Subdivisions Tort Claims Act: Negligence: Notice: Limitations of Actions. As a limitation on a plaintiff's right to commence a negligence action against a political subdivision, compliance with the notice requirement of Neb.Rev.Stat. § 13-905 (Reissue 1987) of the Nebraska Political Subdivisions Tort Claims Act is a procedural precedent to commencement of the negligence action; hence, noncompliance with the notice is a defense to the plaintiff's action.

12. Political Subdivisions Tort Claims Act: Pleadings: Notice. A general denial in the political subdivision's answer does not raise the issue of noncompliance, which must be raised as an affirmative defense specifically expressing the plaintiff's noncompliance with the notice requirement of Neb.Rev.Stat. § 13-905 (Reissue 1987) of the Political Subdivisions Tort Claims Act.

13. Political Subdivisions Tort Claims Act: Pleadings: Notice: Proof. If a political subdivision, by an appropriately specific allegation in a demurrer or answer, raises the issue of the plaintiff's noncompliance with the notice requirement of Neb.Rev.Stat. § 13-905 (Reissue 1987) of the Political Subdivisions Tort Claims Act, the plaintiff has the burden to show compliance with the notice requirement.

14. Limitations of Actions: Waiver. A statute of limitations does not create or extinguish a right, but only places a limitation on a remedy which may be tolled or waived.

15. Limitations of Actions: Proof. A defendant alleging the statute of limitations as an affirmative defense has the burden to prove such defense.

16. Limitations of Actions. If there is no evidence on the issue of a statute of limitations, the statute of limitations is not a submissible issue for the fact finder.

17. Political Subdivisions Tort Claims Act: Limitations of Actions. The filing or presentment provision in Neb.Rev.Stat. § 13-919(1) (Reissue 1987) of the Political Subdivisions Tort Claims Act bars a plaintiff's action and precludes a remedy or relief only if the claim is not filed or presented within the statutorily specified time.

Rollin R. Bailey, of Bailey, Polsky, Cada, Todd & Cope, Lincoln, for appellant.

Peter C. Bataillon and Edward F. Noethe, of Sodoro, Daly & Sodoro, Omaha, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

On December 30, 1985, J.T. Millman, personal representative of the estate of Christopher T. Duncan, deceased, filed a wrongful death action in the district court for Butler County against the County of Butler, Nebraska. Millman filed the action under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983 & Cum.Supp.1986). The district court concluded that it lacked subject matter jurisdiction and dismissed Millman's action; hence, this appeal.

In 1987, the Political Subdivisions Tort Claims Act was legislatively transferred, without change in any statutory language On March 10, 1986, Millman filed an amended petition which, with some subsequent amendment, expressed a cause of action against Butler County for the county's negligent maintenance of a county road and a bridge. See § 13-912 (political subdivision's liability for a defective bridge or highway). Millman alleged that the county's negligence caused a vehicle in which Duncan was a passenger on April 21, 1984, "to run off the bridge and land upside down in the water below the bridge," where Duncan drowned. Also, Millman alleged that Butler County

from chapter 23, article 24, of the Revised Statutes of Nebraska (Reissue 1983, Cum.Supp.1986 & Supp.1987), to chapter 13, article 9, of the Revised Statutes of Nebraska (Reissue 1987), namely, Neb.Rev.Stat. §§ 13-901 to 13-926 (Reissue 1987). Consequently, references to statutory sections of the Political Subdivisions Tort Claims Act are based on the current act, §§ 13-901 et seq. (Reissue 1987).

was given timely notice of the claims in this suit as required by the Nebraska Political Subdivisions Tort Claims Act, and after [Butler County] failed to make a final disposition of the claim within six months of it being filed, said claim was withdrawn and this lawsuit was instituted. [Millman] has fully complied with all of the provisions of the Nebraska Political Subdivisions Tort Claims Act.

In its answer, Butler County admitted its existence as a political subdivision of the State of Nebraska and generally denied Millman's allegations. Additionally, in its answer, after alleging what is apparently a defense of assumption of risk, that is, Duncan had actual knowledge of the "alleged defect of the bridge" and "there were other safe routes which were available and known" to Duncan, Butler County asserted that "plaintiff's cause of action is barred by the statute of limitations."

As early as April 1986, the parties engaged in discovery, commencing with interrogatories to the plaintiff. The answers to those interrogatories supplied the county with information regarding the names and addresses of witnesses and the existence of documentary evidence, such as photographs and diagrams pertaining to the accident site. This information was received by the county's lawyer on April 28, 1986. On April 7, 1987, the parties mutually stipulated for, and later received, a continuance for trial. Thereafter, on July 30, 1987, the county took the deposition of Dr. Edward Post, a civil engineer with expertise in "roadside safety," apparently expertise in the field of safety engineering or construction of highways. On direct examination by the county's lawyer, Dr. Post meticulously testified about the fatal accident and supplemented his testimony with documents which he had prepared or used in his consideration of the fatal accident. On September 3, 1987, in Hollywood, Florida, Butler County obtained the deposition of Joseph R. Meyer, the driver of the pickup in which Duncan was riding when the accident occurred.

A 3-day trial commenced on October 28, 1987. During that trial, neither party offered any evidence that a tort claim was filed with Butler County. Rather, evidence related to the merits of the negligence action regarding Duncan's death. Millman called several witnesses who collectively testified about the road-bridge condition at the accident site. Butler County presented witnesses who also testified about the accident site and its relation to Duncan's death. At the conclusion of evidence, the court took the case under advisement. Later, the court entered its order, reflecting its findings and disposition of the action: "The plaintiff has failed to offer any evidence of subject-matter jurisdiction as required by [§ 13-905; filing claim]. Accordingly, this Court lacks subject-matter jurisdiction, and this matter must be and is hereby dismissed...." Millman timely filed a motion for new trial regarding the dismissal. Also, Millman requested leave to withdraw his rest in the...