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25 Nebraska Appellate Repor

ESSINK v. CITY OF GRETNA

Cite as 25 Neb. App. 53

Rene Essink et al., appellees,

City of Gretna, a munici

corporation, appella

___ N.W.2d ___

Filed September 19, 2017. No. A-16-682.

1. Constitutional Law: Appeal and Error. Constitutional interpretation is 

a question of law on which the Nebraska Supreme Court is obligated to 

reach a conclusion independent of the decision by the trial court.

2. Directed Verdict: Evidence. A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.

3. Political Subdivisions Tort Claims Act: Jurisdiction. While not a 

jurisdictional prerequisite, the filing or presentment of a claim to the 

appropriate political subdivision is a condition precedent to commencement of a suit under the Political Subdivisions Tort Claims Act.

4. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the 

motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed is entitled 

to have every controverted fact resolved in its favor and to have the 

benefit of every inference which can reasonably be deduced from 

the evidence.

5. Directed Verdict: Evidence. A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.

6. Eminent Domain: Words and Phrases. Inverse condemnation is a 

shorthand description for a landowner suit to recover just compensation 

for a governmental taking of the landowner’s property without the benefit of condemnation proceedings.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/26/2017 09:10 AM CDT
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ESSINK v. CITY OF GRETNA

Cite as 25 Neb. App. 53

7. Eminent Domain: Property: Intent. Inverse condemnation has been 

characterized as an action or eminent domain proceeding initiated by 

the property owner rather than the public entity and has been deemed to 

be available where private property has actually been taken for public 

use without formal condemnation proceedings and where it appears 

that there is no intention or willingness of the taker to bring such 

proceedings.

8. Constitutional Law: Eminent Domain: Damages. Because the governmental entity has the power of eminent domain, the property owner 

cannot compel the return of property taken; however, as a substitute, the 

property owner has a constitutional right to just compensation for what 

was taken.

9. Constitutional Law: Eminent Domain: Words and Phrases. Under 

the Nebraska Constitution, the requirement that property was taken or 

damaged “for public use” means that the taking or damage must be 

the result of the governmental entity’s exercise of the right of eminent domain.

10. Eminent Domain: Damages. Not all damage to property by a governmental entity in the performance of its duties occurs as a result of the 

exercise of eminent domain.

11. Eminent Domain: Damages: Proximate Cause: Proof. The initial 

question in an inverse condemnation case is not whether the actions of 

the governmental entity were the proximate cause of the plaintiff’s damages. Instead, the initial question is whether the governmental entity’s 

actions constituted 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. Only after it has been established that a compensable 

taking or damage has occurred should consideration be given to what 

damages were proximately caused by the taking or damaging for public use.

12. Eminent Domain: Property: Proof. 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.

13. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

14. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort 

Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.

15. Political Subdivisions Tort Claims Act: Notice. With regard to a 

claim’s content, substantial compliance with the statutory provisions 
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Cite as 25 Neb. App. 53

supplies the requisite and sufficient notice to a political subdivision 

under the Political Subdivisions Tort Claims Act.

16. ____: ____. The written claim required by the Political Subdivisions 

Tort Claims Act notifies a political subdivision concerning possible 

liability for its relatively recent act or omission, provides an opportunity 

for the political subdivision to investigate and obtain information about 

its allegedly tortious conduct, and enables the political subdivision to 

decide whether to pay the claimant’s demand or defend the litigation 

predicated on the claim made.

Appeal from the District Court for Sarpy County: Ma

Kelch, Judge, and Paul D. Merritt, Jr., Judge, Reti

Vacated in part, and in part reversed and remanded with 

directions.

Thomas J. Culhane and Patrick R. Guinan, of Erickson & 

Sederstrom, P.C., for appellant.

Melanie J. Whittamore-Mantzios, of Wolfe, Snowden, Hurd, 

Luers & Ahl, L.L.P., for appellees.

Moore, Chief Judge, and Pirtle and Bishop, Judg

Pirtle, Judge

INTRODUCTION

Rene Essink, Brandon Henry and Amanda Henry, and 

Michael Foged and Catherine Howard, now known as 

Catherine Foged (collectively appellees), brought an inverse 

condemnation action and a negligence action under the 

Political Subdivisions Tort Claims Act (the Tort Claims Act) 

against the City of Gretna (City) as a result of two sanitary 

sewer backups into their homes. A jury found in favor of 

appellees on the inverse condemnation claims and awarded 

damages. The trial court dismissed the negligence action 

under the Tort Claims Act as to Essink and the Henrys. 

Following a bench trial, the court found that the Fogeds had 

complied with the filing requirements of the Tort Claims Act 

and that the City negligently caused the backups and awarded 

damages. The City appeals from the judgment on the jury 
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ESSINK v. CITY OF GRETNA

Cite as 25 Neb. App. 53

verdict and the trial court’s order from the bench trial. On the 

inverse condemnation action, we conclude that the trial court 

should have granted a directed verdict in favor of the City, 

and therefore, we vacate the jury’s verdict, and reverse the 

judgment of the trial court and remand the matter with directions to enter judgment in favor of the City. On the Fogeds’ 

negligence action under the Tort Claims Act, we determine 

that the Fogeds did not comply with the filing requirements of 

the Tort Claims Act, and therefore, we reverse the trial court’s 

order and remand the matter to the trial court with directions 

to dismiss.

BACKGROUND

The City has a wastewater collection system that collects 

sewage from residences and businesses and uses gravity to 

direct the collected sewage to a pumping station or treatment facility. Residents connect to the City’s collection system 

through private service connections that run from their properties to the City’s line.

In July and August 2010, appellees all lived on Meadow 

Lane in Gretna, Nebraska. Their homes were located near 

the top of the gravitational line of the City’s sewage collection system.

On July 23, 2010, sewage from the City’s collection system 

backed up into Essink’s and the Fogeds’ residences. Richard 

Andrews, the City’s utility superintendent, responded and 

investigated by lifting the covers to the two manholes closest 

to the residences and checking the flow of water. He discovered that there was a blockage between the two manholes. 

Andrews used the City’s sewer “jet” to clear the blockage. 

He then checked manholes down the gravitational line and 

observed that the collection system was clear and flowing. 

Andrews was unable to determine what caused the blockage. 

Andrews checked the manholes on Meadow Lane for several 

days after the July 23 backup to make sure the system was 

flowing, and he did not observe any further blockages or issues 

with the flow.
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Cite as 25 Neb. App. 53

On August 16, 2010, sewage from the City’s collection system backed up into appellees’ residences. Andrews responded 

again and investigated to determine where the blockage was 

located. He started by checking the manholes closest to the 

residences, which was where he had discovered the blockage 

on July 23. Andrews did not find a blockage between those 

manholes or any manholes on Meadow Lane. Andrews continued checking manholes down the gravitational line until he 

found the blockage several blocks away on Cherokee Drive. 

The City hired Utility Services Group (USG) to jet the line and 

clear the blockage. When the blockage was cleared, Andrews 

checked manholes down the gravitational line and observed 

that the collection system was clear and flowing. After the 

August 16 backup, the City also had USG conduct a “televised” video inspection on an area of the City’s sewerlines, 

which included Meadow Lane.

Sometime after the July 23 and August 16, 2010, backups, 

Michael Foged’s father hand delivered two envelopes to an 

employee of the City clerk’s office on his son’s behalf. The 

envelopes contained bills the Fogeds received from the business they hired to clean up their home after the backups.

In June 2011, appellees filed a written tort claim addressed 

and delivered to the City’s clerk, pursuant to the Tort Claims 

Act. In October 2011, before the 6-month claim period expired, 

appellees filed a complaint in the district court for Sarpy County 

containing an inverse condemnation claim. In December 2014, 

appellees filed an amended complaint adding a negligence 

claim under the Tort Claims Act.

The City moved for summary judgment with respect to 

appellees’ tort claim. The district court determined that the 

amended complaint related back to the original complaint 

and that the tort claim was therefore not time barred by the 

2-year statute of limitations. The district court then concluded that because the original complaint was filed before 

the 6-month claim period under the Tort Claims Act expired, 

appellees failed to comply with all conditions of the Tort 
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Cite as 25 Neb. App. 53

Claims Act before filing their complaint. However, the district 

court found that questions of fact existed as to whether the 

cleaning bills Michael Foged’s father delivered to the City 

clerk’s office constituted a “claim” properly filed under the 

Tort Claims Act. Accordingly, the district court granted the 

City’s summary judgment motion with respect to Essink’s and 

the Henrys’ tort claims, but overruled the motion as to the 

Fogeds’ tort claim.

A jury trial was held on appellees’ inverse condemnation 

claim. Andrews, the City’s utility superintendent, testified that 

prior to July 2010, there were no reported sewer backups into 

any homes on Meadow Lane or reports of any other issues with 

the City’s collection system on Meadow Lane. Stephen Sherry, 

a City employee with over 35 years of experience working 

with the City’s sewer system, testified that the July 23 and 

August 16 backups were the only sewer backups on Meadow 

Lane that he was aware of.

Andrews and Sherry also testified to the City’s regular 

inspection, maintenance, and repair procedures for the sewage 

collection system. The City maintains a list of manholes that 

are checked daily to make sure water is flowing in the system. 

The manholes on the list are where there are large collection 

points, low spots, or problem areas where blockages have 

occurred. The manholes on Meadow Lane and Cherokee Drive 

were not on this list prior to the July and August 2010 backups. 

Andrews testified that the manholes on Meadow Lane were 

added to the list after the August 16 backup and that they are 

checked daily.

In addition to checking the manholes on the list on a daily 

basis, the City also conducts random inspections of manholes 

throughout the City. The City also tries to jet out all the sewerlines throughout the City on an annual basis, depending on 

budget constraints.

Greg MacLean, a civil engineer who testified for appellees, stated that in his opinion, the City’s practice of checking 

certain manholes on a daily basis indicated that it knew it had 
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Cite as 25 Neb. App. 53

a problem with the sewer system. He testified that knowing 

there was a problem and not doing anything to address the 

problem makes it certain that there will eventually be a backup 

of some kind.

MacLean testified that in the video taken by USG of the 

sewerlines, he observed broken and disjointed or offset pipes, 

as well as tree roots in the line. He testified that in his opinion, the blockages at issue were caused by the condition of the 

lines. He testified that broken and disjointed pipes reduce the 

flow and reduce the carrying capacity of the pipes. MacLean 

further explained that during times when the flow increases 

from increased usage or during wet weather, the capacity 

of the pipes can be exceeded, resulting in a sewer backup 

upstream.

MacLean also testified that backups can also be caused by 

foreign objects users put into the collection system and that the 

City has no control over nor can it predict what will be put into 

the system. He also admitted that blockages in a sewage collection system can occur despite the best practices. He acknowledged that when he was the Lincoln, Nebraska, sewer system 

supervisor, Lincoln experienced an average of 20 backups per 

year despite his best maintenance efforts.

Steven Perry, the City’s civil engineering consultant for 

over 30 years, testified that he did not see anything in the USG 

video that would have caused the sewer backups on Meadow 

Lane. He testified that offset pipes and broken or cracked pipes 

would not cause a blockage in the line. He acknowledged that 

a leaky joint or an infiltration into the system, such as roots, 

allows water into the system which reduces the carrying capacity of the pipes. Perry testified, however, that there was nothing in the system itself that would have caused a backup.

Perry testified that there is no way to predict when or where 

a blockage is going to occur. He further testified that in over 

30 years as an engineer dealing with sewer systems in various 

communities, he was not aware of any sewer system that never 

has any blockages.
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Cite as 25 Neb. App. 53

The City made a motion for directed verdict at the close 

of appellees’ evidence, which the court denied. Following the 

presentation of evidence by both parties, the City renewed its 

motion for directed verdict, which was again denied. The jury 

returned a verdict in favor of appellees on the inverse condemnation claim, and the district court entered judgment on the 

verdict. The City made a motion for judgment notwithstanding 

the verdict, which the district court denied.

Following the jury trial on the inverse condemnation claim, 

a bench trial was held on the Fogeds’ tort claim. The district 

court determined that the cleaning bills that were presented 

to the City clerk’s office constituted a “claim” under the Tort 

Claims Act, that the Fogeds substantially complied with the 

Tort Claims Act, and that the City negligently caused the sewer 

backups. The court awarded damages.

ASSIGNMENTS OF ERROR

The City assigns that the trial court erred in (1) failing 

to direct a verdict in the City’s favor on appellees’ inverse 

condemnation claims; (2) failing to grant the City judgment 

notwithstanding the verdict on appellees’ inverse condemnation claims; (3) submitting the takings question to the jury; (4) 

improperly instructing the jury on appellees’ inverse condemnation claims; (5) accepting the jury’s verdict, which included 

a finding that the July 23 and August 10, 2010, backups constituted a taking; (6) finding that the Fogeds filed a “claim” with 

the proper city official; (7) finding that the Fogeds complied 

with the Tort Claims Act’s filing requirements by delivering 

cleaning bills to an employee of the City clerk’s office but who 

was not the person whose duty it was to maintain the City’s 

records; (8) finding that the cleaning bills the Fogeds delivered 

to the City constituted a “claim” under the Tort Claims Act; (9) 

finding that the City was negligent in causing the backups that 

occurred at the Fogeds’ residence on July 23 and August 16; 

and (10) finding that the backups were proximately caused by 

the City’s negligence.
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ESSINK v. CITY OF GRETNA

Cite as 25 Neb. App. 53

STANDARD OF REVIEW

[1] Constitutional interpretation is a question of law on 

which the Nebraska Supreme Court is obligated to reach a 

conclusion independent of the decision by the trial court. 

Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 

486 (2013).

[2] A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue 

should be decided as a matter of law. Winder v. Union Pacific 

RR. Co., 296 Neb. 557, 894 N.W.2d 343 (2017).

[3] While not a jurisdictional prerequisite, the filing or presentment of a claim to the appropriate political subdivision is a 

condition precedent to commencement of a suit under the Tort 

Claims Act. Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 

586 (2003).

ANALYSIS

Inverse Condemnation Claim.

The City’s first five assignments of error relate to the jury 

trial on appellees’ inverse condemnation action. Included in 

these assignments of error is the City’s allegation that the trial 

court erred in failing to direct a verdict in its favor. We address 

this assignment of error first.

[4,5] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as an 

admission of the truth of all competent evidence submitted on 

behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed 

is entitled to have every controverted fact resolved in its favor 

and to have the benefit of every inference which can reasonably be deduced from the evidence. Winder v. Union Pacific 

RR. Co., supra. A directed verdict is proper at the close of all 

the evidence only when reasonable minds cannot differ and can 

draw but one conclusion from the evidence, that is, when an 

issue should be decided as a matter of law. Id.
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[6] The City argues that based on the evidence presented at 

trial, there was only one conclusion that could be drawn and 

a directed verdict should have been granted in its favor on 

the inverse condemnation claim. The right to bring an inverse 

condemnation action derives from Neb. Const. art. I, § 21, 

which provides: “The property of no person shall be taken or 

damaged for public use without just compensation therefor.” 

The 5th Amendment to the U.S. Constitution, made applicable 

to the states through the 14th Amendment, provides: “[N]or 

shall private property be taken for public use, without just 

compensation.” Inverse condemnation is a shorthand description for a landowner suit to recover just compensation for a 

governmental taking of the landowner’s property without the 

benefit of condemnation proceedings. 6224 Fontenelle Blvd. 

v. Metropolitan Util. Dist., 22 Neb. App. 872, 863 N.W.2d 

823 (2015).

[7,8] Inverse condemnation has been characterized as an 

action or eminent domain proceeding initiated by the property 

owner rather than the public entity and has been deemed to 

be available where private property has actually been taken 

for public use without formal condemnation proceedings and 

where it appears that there is no intention or willingness of the 

taker to bring such proceedings. Id. Because the governmental 

entity has the power of eminent domain, the property owner 

cannot compel the return of property taken; however, as a 

substitute, the property owner has a constitutional right to just 

compensation for what was taken. Id.

[9,10] Under the Nebraska Constitution, the requirement 

that property was taken or damaged “for public use” means 

that the taking or damage must be the result of the governmental entity’s exercise of the right of eminent domain. Henderson 

v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013).

Not all damage to property by a governmental entity in the 

performance of its duties occurs as a result of the exercise of 

eminent domain. Id.
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In Henderson v. City of Columbus, supra, the plaintiffs 

sued the defendant after raw sewage flooded into their home 

after a heavy rainstorm. The plaintiffs claimed that the flooding damaged their home and was the result of a malfunction 

of the city-run sanitary sewage system. The complaint alleged 

several theories of recovery, including inverse condemnation. 

After a bench trial, the court found in favor of the defendant 

and dismissed the plaintiffs’ complaint, determining that the 

plaintiffs failed to prove that the defendant’s actions or inactions were the proximate cause of their damages. On appeal, 

this court concluded that the defendant’s actions proximately 

caused the backups and reversed the portion of the trial 

court’s order which dismissed the inverse condemnation claim 

and remanded the cause for a determination of damages. 

Although for reasons different from those of the trial court, 

the Nebraska Supreme Court on further review held that the 

plaintiffs failed to establish an inverse condemnation claim 

and affirmed the trial court’s judgment in favor of the defendant. Id.

[11,12] In its opinion, the Nebraska Supreme Court stated 

that the focus on proximate cause was premature and set 

forth that

[t]he initial question in an inverse condemnation case 

is not whether the actions of the governmental entity were 

the proximate cause of the plaintiff’s damages. Instead, 

the initial question is whether the governmental entity’s 

actions constituted 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. 

Only after it has been established that a compensable taking or damage has occurred should consideration be given 

to what damages were proximately caused by the taking 

or damaging for public use.

Id. at 489, 827 N.W.2d at 492. In order to meet the initial 

threshold that the property has been taken or damaged for 
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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. See id.

In analyzing whether the flooding in Henderson v. City of 

Columbus, supra, was an invasion of property rights that was 

intended or foreseeable, the court considered the U.S. Supreme 

Court case of Arkansas Game and Fish Com’n v. United 

States, 568 U.S. 23, 133 S. Ct. 511, 184 L. Ed. 2d 417 (2012). 

Specifically, it noted:

At issue in Arkansas Game and Fish Com’n was 

“whether government actions that cause repeated floodings must be permanent or inevitably recurring to constitute a taking of property.” 133 S. Ct. at 518. The Court 

concluded that government-induced “recurrent floodings, 

even if of a finite duration, are not categorically exempt 

from Takings Clause liability.” 133 S. Ct. at 515. The 

temporary nature of the flooding at issue in Arkansas 

Game and Fish Com’n did not automatically exclude 

it from being a compensable event under the Takings 

Clause and the order of dismissal therein was reversed 

and the cause remanded. While time or duration was the 

relevant factor in determining the existence of a compensable taking at issue in Arkansas Game and Fish 

Com’n, the Court further stated that “[a]lso relevant to 

the takings inquiry is the degree to which the invasion is 

intended or is the foreseeable result of authorized government action.” 133 S. Ct. at 522. This additional factor of 

intention or foreseeability is of particular importance in 

the case before us.

Henderson v. City of Columbus, 285 Neb. 482, 492, 827 

N.W.2d 486, 494 (2013) (emphasis supplied).

The Henderson court also recognized that the Arkansas 

Game and Fish Com’n Court stated, in regard to the intentional 

or foreseeable results of the acts of the governmental entity, 

that “‘a property loss compensable as a taking only results 

when the government intends to invade a protected property 
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interest or the asserted invasion is the “direct, natural, or probable result of an authorized activity and not the incidental or 

consequential injury inflicted by the action.”’” 285 Neb. at 

493, 827 N.W.2d at 495.

The Henderson court further noted that Nebraska case law 

and that of other states indicate flooding may be a compensable 

taking when it is frequent or recurring. The Henderson court 

stated that this is consistent with the statement in Arkansas 

Game and Fish Com’n v. United States, supra, that intention or 

foreseeability is a factor in determining whether there has been 

a taking, because the frequency of flooding could indicate that 

the taking or damaging of property is a known or foreseeable 

result of government action for public use.

The Henderson court concluded that the plaintiffs failed to 

establish the threshold element that their property was taken 

or damaged for public use by the defendant in the exercise of 

its power of eminent domain. The court relied on the district 

court’s finding that no evidence existed to show that the plaintiffs had suffered property damage as a result of recurring, 

permanent, or chronic sewer backups, or that the damage was 

intentionally caused by the defendant. The court concluded 

that the district court’s findings supported a conclusion that 

this was not a case where the defendant exercised its right of 

eminent domain, because when the defendant took action, there 

had not been recurring sewer backup, nor was it known or 

foreseeable that the defendant’s action would take or damage 

private property. Id. It further stated that the plaintiffs did not 

present evidence that the defendant knew damage would occur 

or could have foreseen that its actions could cause damage to 

private property.

We conclude that Henderson v. City of Columbus, 285 Neb. 

482, 827 N.W.2d 486 (2013), is instructive in the present case 

and that therefore, the dispositive issue is whether the backups 

constituted a taking or damaging of property for public use. 

As stated in Henderson, in order to meet this initial threshold, 

appellees had to show that the invasion of property rights was 
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intended or was the foreseeable result of authorized governmental action. Henderson also indicated that a flooding case 

may be a compensable taking when it is frequent or recurring, 

because the frequency is indicative that the taking or damaging 

of property was known or foreseeable.

In the present case, the sewer backups were not frequent or 

recurring. The evidence showed that there were two backups 

which occurred several weeks apart as a result of two blockages at different areas of the sewer system. The first backup 

for which appellees claim damages occurred on July 23, 2010. 

After the backup was reported to the City, Andrews located 

a blockage in between the two manholes closest to appellees’ homes. He jetted the sewerline and cleared the blockage. 

Andrews then checked manholes down the gravitational line 

and observed that the collection system was clear and flowing. 

He checked the manholes on Meadow Lane for several days 

after the July 23 backup to make sure the system was flowing, 

and he did not observe any further blockages or issues with 

the flow.

The evidence was undisputed that no backups occurred on 

Meadow Lane before July 2010. Sherry, who had over 35 years 

of experience working with the City’s sewer system, testified that besides the two backups at issue in this case, he was 

aware of only one other sewer backup that occurred in 2007 

on a different street. Andrews, the City’s utility superintendent, testified that prior to July 2010, there were no reported 

sewer backups into any homes on Meadow Lane or reports of 

any other issues with the City’s collection system on Meadow 

Lane. Andrews also testified that there had been only one other 

backup into a basement other than the ones at issue.

Michael Foged testified that he moved into his house in July 

2009 and that he had no backups prior to July 2010. Brandon 

Henry testified that he had been in his house since 2006 and 

had no backup problems before July 2010. Similarly, Essink 

moved into her house in 2001 and had no backups prior to 

July 2010.
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There was evidence that a minor backup occurred at appellees’ homes a few days before July 23, 2010, but there was 

no evidence that this backup was caused by a blockage on 

Meadow Lane or anywhere in the City’s sewer system. Michael 

Foged and Brandon Henry testified that water came out of their 

basement drains on July 19 and then receded. Essink testified 

that her toilet overflowed on the same day. Michael Foged 

called a plumber who indicated the Fogeds’ personal line was 

clear. Michael Foged also called the City, and Andrews came 

out and checked the closest manhole and told him there was no 

blockage. Essink called a plumber who saw no problem with 

her personal line.

On August 16, 2010, the second backup for which appellees 

claim damages occurred. Andrews responded after the backup 

was reported and investigated to determine where the blockage was located. He started by checking the manholes closest to the residences, which was where he had discovered the 

blockage on July 23. Andrews did not find a blockage between 

those manholes or any manholes on Meadow Lane. Andrews 

continued checking manholes down the gravitational line until 

he found the blockage several blocks away on Cherokee Drive. 

The City hired USG to jet the line and clear the blockage. 

When the blockage was cleared, Andrews checked manholes 

down the gravitational line and observed that the collection 

system was clear and flowing.

The backup on August 16, 2010, was the second backup 

on Meadow Lane that was caused by a blockage in the City’s 

sewer system. It was the first backup on Meadow Lane caused 

by a blockage that was several blocks away.

There was no evidence presented of other backups into 

appellees’ homes besides those in July and August 2010. There 

was limited evidence of one other backup that occurred into 

someone else’s home in 2007, but it did not take place on 

Meadow Lane. Accordingly, appellees failed to present evidence of frequent or recurring backups, and failed to prove that 
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the City knew or could have foreseen that damage would occur 

to appellees’ property.

Appellees argue the City had sufficient knowledge to make 

it foreseeable that sewer backups would occur based upon 

its allegedly inadequate method of maintenance and operation of the system and its list of manholes that were checked 

daily. First, the manhole list does not prove foreseeability: 

those manholes were checked daily because they were large 

collection points, low spots in the sewerline, or areas where 

some sort of blockage had occurred in the past. The manholes 

where the blockages occurred in the instant case were not on 

the list. Second, the possibility of backups occurring somewhere in Gretna due to inadequate maintenance and operation 

is not sufficient to prove that the City knew or could foresee 

that a backup was going to occur at appellees’ properties. In 

Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 

486 (2013), the court quoted with approval City of Dallas v. 

Jennings, 142 S.W.3d 310 (Tex. 2004), which held that before 

a governmental entity may be held liable for an intentional taking, the claimant must show that the government “‘knows that 

a specific act is causing identifiable harm’” or “‘knows that 

the specific property damage is substantially certain to result 

from an authorized government action.’” 285 Neb. at 494, 827 

N.W.2d at 495 (emphasis supplied). Appellees had to prove 

that the City knew or could have foreseen that damage would 

occur to appellees’ property, and it failed to do so. Further, 

as previously discussed, there was no evidence of frequent or 

recurring backups at appellees’ homes, on Meadow Lane, or 

anywhere in Gretna.

Absent evidence of frequent or recurring sewer backups 

in the past, appellees failed to prove the threshold issue of 

whether the backups were intended or were the foreseeable 

result of authorized governmental action. Accordingly, we conclude appellees failed to prove that the backups constituted a 

taking or damaging of property for public use. We conclude 
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that the district court erred in failing to grant the City’s motion 

for directed verdict.

[13] The City also assigns that the trial court erred in submitting the question of whether a taking occurred to the jury. 

It relies on 6224 Fontenelle Blvd. v. Metropolitan Util. Dist., 

22 Neb. App. 872, 863 N.W.2d 823 (2015), wherein the court 

held that the ultimate determination of whether government 

conduct constitutes a taking or damaging of property is a 

question of law for the court. We note that 6224 Fontenelle 

Blvd. v. Metropolitan Util. Dist., supra, was released after the 

jury trial in this matter. It was also the first time Nebraska 

courts had addressed an inverse condemnation action where 

there had been no physical intrusion or taking of property, 

but only a damaging of property by virtue of a loss of value 

to the property. Regardless, because we have concluded that 

the trial court should have directed a verdict in favor of the 

City and the case should not have gone to the jury, we need 

not address whether the trial court erred in submitting the 

takings question to the jury. Further, we need not address the 

City’s remaining assignments of error that relate to the jury 

trial on appellees’ inverse condemnation claim. An appellate court is not obligated to engage in an analysis that is not 

necessary to adjudicate the case and controversy before it. 

In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 

469 (2017).

The Fogeds’ Claim Pursuant to 

Tort Claims Act.

We next address the City’s assignments of error that relate 

to the Tort Claims Act, specifically that the Fogeds failed to 

file a proper claim. The City argues that the Fogeds did not 

comply with the filing requirements of the Tort Claims Act in 

two respects: (1) the cleaning bills presented to the City clerk’s 

office did not demand the satisfaction of an obligation and 

(2) the Fogeds did not deliver the cleaning bills to the proper 

city official.
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[14] The Tort Claims Act is the exclusive means by which 

a tort claim may be maintained against a political subdivision or its employees. Jessen v. Malhotra, 266 Neb. 393, 665 

N.W.2d 586 (2003). While not a jurisdictional prerequisite, 

the filing or presentment of a claim to the appropriate political subdivision is a condition precedent to commencement of 

a suit under the Tort Claims Act. Jessen v. Malhotra, supra. 

Neb. Rev. Stat. § 13-920(1) (Reissue 2012) provides, in relevant part:

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 accrued . . . .

[15] The requisite content of a written claim is addressed in 

Neb. Rev. Stat. § 13-905 (Reissue 2012), which requires that 

all claims “shall be in writing and shall 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.” With 

regard to a claim’s content, substantial compliance with the 

statutory provisions supplies the requisite and sufficient notice 

to a political subdivision. Jessen v. Malhotra, supra.

[16] The written claim required by the Tort Claims Act notifies a political subdivision concerning possible liability for its 

relatively recent act or omission, provides an opportunity for 

the political subdivision to investigate and obtain information 

about its allegedly tortious conduct, and enables the political 

subdivision to decide whether to pay the claimant’s demand or 

defend the litigation predicated on the claim made. Jessen v. 

Malhotra, supra.

We first address the City’s argument that the cleaning bills 

that were delivered to the City clerk’s office did not demand 
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the satisfaction of an obligation. The City relies on Jessen 

v. Malhotra, supra, in support of its argument. In Jessen, 

a physician employed by a county medical clinic allegedly 

misdiagnosed a patient’s heart disease. Two days after seeing 

the physician, the patient died from a myocardial infarction. 

The patient’s widow sent a letter to the physician stating 

that her husband had been examined by the physician and 

implying that the physician negligently failed to diagnose 

her husband’s condition, a condition which led to his death. 

The letter further stated that the physician’s misdiagnosis 

was “‘malpractice’” and that the patient’s family was “‘very 

angry.’” Jessen v. Malhotra, 266 Neb. at 395, 665 N.W.2d at 

589. The Nebraska Supreme Court concluded that the content 

of the widow’s letter was insufficient to satisfy the requirements of a written claim under § 13-905 because it did not 

make a demand for the satisfaction of any obligation, nor did 

it convey what relief was sought by the plaintiff. The court 

found that without a proper demand of the relief sought to 

be recovered, a written claim fails to accomplish one of its 

recognized objectives: to allow the political subdivision to 

decide whether to settle the claimant’s demand or defend 

itself in the course of litigation.

The court in Jessen v. Malhotra, 266 Neb. 393, 665 

N.W.2d 586 (2003), referred to two cases where the Nebraska 

Supreme Court had construed the predecessor to § 13-905 to 

require that a written claim make a demand upon a political 

subdivision for the satisfaction of an obligation rather than 

merely alerting the political subdivision to the possibility of a 

claim. The cases were Peterson v. Gering Irr. Dist., 219 Neb. 

281, 363 N.W.2d 145 (1985), and West Omaha Inv. v. S.I.D. 

No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988). Peterson

was a case in which the claim failed to meet the “demand” 

requirement. The purported claim gave notice to the political subdivision that it “‘failed to deliver water by reason of 

negligence or omission of duties and responsibilities of the 
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[political subdivision]’” and that the plaintiffs would hold 

it liable for “‘whatever damages may result as a result of 

failure to deliver water.’” Peterson v. Gering Irr. Dist., 219 

Neb. at 283, 284, 363 N.W.2d at 147. The court held that the 

claim did not make a demand against the political subdivision and therefore did not satisfy the requirements of the Tort 

Claims Act.

The other case referred to by the Jessen court, West Omaha 

Inv. v. S.I.D. No. 48, supra, is a case where the written claim 

passed statutory muster. The claimant filed a claim pursuant 

to the Tort Claims Act “‘for the property loss’” caused in part 

by the political subdivision’s negligence, and thus made a 

proper demand to the political subdivision. West Omaha Inv. v. 

S.I.D. No. 48, 227 Neb. at 788, 420 N.W.2d at 294 (emphasis 

supplied). In considering whether the letter sent to the political subdivision met the Tort Claims Act’s requirements, the 

court determined that the court in Peterson v. Gering Irr. Dist., 

supra, was mostly concerned that the plaintiffs made an actual 

demand upon the defendant. The Supreme Court found that 

the letter in West Omaha Inv. satisfied the Tort Claims Act’s 

requirements, because the letter stated that property loss had 

occurred and that the defendant was responsible. The West 

Omaha Inv. court stated, “The letter did not merely alert the 

defendant to the future ‘possibility of a claim’ for ‘whatever 

damages may result’ as in Peterson. Rather, the plaintiff stated 

that ‘claim is made’ against the defendant for actual property 

loss caused in part by the defendant’s negligence.” 227 Neb. at 

790, 420 N.W.2d at 295.

In the present case, the Fogeds submitted two envelopes 

to the City clerk’s office after the sewer backups into their 

home. The first envelope had a bill addressed to Michael 

Foged from a cleaning and restoration company for work 

done at the Fogeds’ residence. The amount of the bill was 

$20,257.37. There was also a bill from a plumbing company 

for $105.93. The second envelope, delivered after the second 
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backup, included a bill addressed to Michael Foged from the 

cleaning and restoration company for water damage cleanup at 

the Fogeds’ residence in the amount of $6,944.30.

We conclude that like in Jessen v. Malhotra, supra, the 

cleaning bills here do not meet the statutory requirements of a 

claim, because the bills do not make a demand on the City for 

the satisfaction of an obligation or relief sought to be recovered. There were no other documents submitted with the cleaning bills. There was no written document of any sort by the 

Fogeds. Although the bills show the dates the work was performed, the location of the work, the reason (water damage) for 

the work, and the specific amount owed for such work, there is 

no demand made that the City satisfy an obligation. The bills 

are addressed to the Fogeds, indicating they are responsible for 

payment of the bills. The bills indicate that they are a result of 

water damage in the home, but there is 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 is a statement in 

the bills where it indicates that the Fogeds would be submitting 

them to the City for payment.

The content of the bills does not satisfy the requirements 

of § 13-905, and therefore, we reverse the trial court’s finding that the cleaning bills delivered to the City clerk’s office 

constituted a “claim” under the Tort Claims Act. Accordingly, 

the Fogeds failed to comply with a condition precedent to the 

commencement of a suit under the Tort Claims Act and their 

claim must be dismissed.

Having concluded that the cleaning bills did not demand 

the satisfaction of an obligation, we need not discuss whether 

the cleaning bills were delivered to the proper city official. 

We also do not need to discuss whether the trial court erred in 

finding that the City was negligent in causing the backups. An 

appellate court is not obligated to engage in an analysis that is 

not necessary to adjudicate the case and controversy before it. 
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In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 

469 (2017).

CONCLUSION

We conclude that the trial court erred in failing to grant a 

directed verdict in favor of the City on appellees’ inverse condemnation action. Therefore, we vacate the jury’s verdict, and 

reverse the judgment of the trial court and remand the matter 

to the trial court with directions to enter judgment in favor of 

the City. We further conclude that the trial court erred in finding that the Fogeds complied with the filing requirements of 

the Tort Claims Act, and therefore, we reverse the trial court’s 

order in regard to the Fogeds’ tort claim and remand the matter 

to the trial court with directions to dismiss.

 Vacated in part, and in part re

and remanded with directi