Decisions of the Nebraska Court of Appe

BUCK’S, INC. v. CITY OF OMAHA 541

Cite as 22 Neb. App. 541

Buck’s, Inc., appellant, v

City of Omaha, appelle

___ N.W.2d ___

Filed November 25, 2014. Nos. A-13-980, A-13-981.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the 

admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial 

discretion is involved only when the rules make discretion a factor in determining admissibility.

2. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine 

the relevancy and admissibility of evidence, and such determinations will not be 

disturbed on appeal unless they constitute an abuse of that discretion.

3. Rules of Evidence: Expert Witnesses. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify thereto in the form of an opinion 

or otherwise.

4. Trial: Witnesses. If a witness is not testifying as an expert, his testimony in the 

form of opinions or inferences is limited to those opinions or inferences which 

are (1) rationally based on the perception of the witness and (2) helpful to a clear 

understanding of his testimony or the determination of a fact in issue.

5. Affidavits. Statements in affidavits as to opinion, belief, or conclusions of law 

are of no effect.

6. Trial: Witnesses: Proof. The party offering testimony has the burden to lay foundation by showing that the witness has personal knowledge of the subject matter 

of the testimony.

7. Evidence: Words and Phrases. Relevant evidence means evidence having any 

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without 

the evidence.

8. Constitutional Law: Highways: Easements. The right of an owner of property 

which abuts on a street or highway to have ingress to and egress from his premises by way of the street is a property right in the nature of an easement in the 

street, and the owner cannot be deprived of such right without due process of law 

and compensation for loss.

9. Property: Highways. The right of access of an abutting property owner to a 

public road is not an unlimited one.

10. Property. A property owner is entitled to reasonable access to abutting private 

property if reasonable access remains.

11. Property: Highways: Damages. As a general rule, an abutting landowner has no 

vested interest in the flow of traffic past his premises and any damages sustained 

because of a diversion of traffic are not compensable. This rule applies to the 

control of turns by double lines, islands, and median strips.

12. Property: Highways. Mere circuity of travel to and from real property, resulting from a lawful exercise of the police power in controlling traffic, does not 

of itself constitute an impairment of the right of ingress and egress to and from 
Decisions of the Nebraska Court of Appe

542 22 NEBRASKA APPELLATE REPORTS

such property where the resulting interference is but an inconvenience shared in 

common with the general public and is necessarily in the public interest in making highway travel safer and more efficient.

13. Property: Highways: Damages. If a property owner has the same access to the 

general highway system as before a diversion of traffic, this injury is the same in 

kind as that suffered by the general public and is not compensable.

Appeal from the District Court for Douglas County: W. 

Mark Ashford, Judge. Affirm

Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno 

& Vogt, L.L.C., for appellant.

Bernard J. in den Bosch, Deputy Omaha City Attorney, and 

William Acosta-Trejo for appellee.

Inbody, Chief Judge, and Riedmann and Bishop, Ju

Riedmann, Judg

INTRODUCTION

Buck’s, Inc., appeals from the order of the district court for 

Douglas County denying a motion for summary judgment filed 

by Buck’s and granting summary judgment in favor of the City 

of Omaha (the City). On appeal, Buck’s also challenges certain evidentiary rulings. Finding no merit to the arguments on 

appeal, we affirm the district court’s decision.

BACKGROUND

Buck’s is a Nebraska corporation that owned and operated a 

gas station on the northwest corner of 144th Street and Stony 

Brook Boulevard in Omaha, Douglas County, Nebraska. In 

August 2009, the City eliminated a cut in the median on Stony 

Brook Boulevard, which then prevented eastbound traffic from 

turning left in order to directly access Buck’s property. Before 

the City closed the median cut, Buck’s had two access points to 

Stony Brook Boulevard and one access point via an easement 

across a neighboring property. After the median cut was eliminated, Buck’s continued to have the same three access points, 

but direct access to the property by eastbound traffic on Stony 

Brook Boulevard was eliminated.

Buck’s instituted an inverse condemnation action against 

the City in August 2010. A board of appraisers was appointed, 
Decisions of the Nebraska Court of Appe

BUCK’S, INC. v. CITY OF OMAHA 543

Cite as 22 Neb. App. 541

and Buck’s was awarded $30,000 in damages. Buck’s and the 

City both appealed to the district court, and the parties filed 

cross-motions for summary judgment. At the summary judgment hearing, the City offered into evidence the affidavits of 

Todd Pfitzer and Tim Phelan.

Pfitzer has been the City’s engineer since October 2010, and 

he previously served as the City’s traffic engineer, beginning 

in 2006. In his affidavit, Pfitzer stated that he was involved 

in reviewing plans for the project concerning the elimination 

of the median cut and made recommendations for the best and 

safest method for handling the traffic movement. He claimed 

that the decision to eliminate the median cut was made to 

address the anticipated increased traffic accessing the area due 

to the development of a grocery store site. He said that in order 

to minimize traffic conflict and allow for smoother and safer 

traffic flow, the median cut was eliminated. Pfitzer indicated 

that prior to this project, Buck’s had two access points to Stony 

Brook Boulevard and a third access point onto neighboring 

property, and that the same three access points existed after 

construction on the median. Pfitzer opined that from his point 

of view as a traffic engineer, Buck’s suffered no decrease of 

ingress or egress.

Phelan is the City’s right-of-way manager. His affidavit 

indicated that in the course of performing his job duties, he 

is involved in the acquisition of rights-of-way for various 

public projects. Phelan indicated that he is familiar with the 

project regarding the median on Stony Brook Boulevard and 

that the City, in conjunction with this project, did not acquire 

any property interests because the median improvements were 

made solely in the City’s right-of-way. Specifically, Phelan 

averred that the City did not acquire any property or property 

interest from Buck’s for this project. Phelan stated that prior 

to the project’s completion, Buck’s had three entrances to its 

property, and that after construction on the median, Buck’s 

continued to have the same three entrances.

The affidavits were received into evidence over objections 

by Buck’s. Ultimately, the district court denied the motion for 

summary judgment filed by Buck’s and entered summary judgment in favor of the City. Buck’s now appeals.
Decisions of the Nebraska Court of Appe

544 22 NEBRASKA APPELLATE REPORTS

ASSIGNMENTS OF ERROR

Buck’s assigns, renumbered and restated, that the district 

court erred in (1) receiving the affidavits into evidence, (2) 

failing to grant its motion for summary judgment, and (3) 

granting the City’s motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is proper if the pleadings and admissible 

evidence offered at the hearing show that there is no genuine 

issue as to any material facts or as to the ultimate inferences 

that may be drawn from those facts and that the moving party 

is entitled to judgment as a matter of law. Latzel v. Bartek, 288 

Neb. 1, 846 N.W.2d 153 (2014). In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted, 

and gives that party the benefit of all reasonable inferences 

deducible from the evidence. Id.

ANALYSIS

Evidentiary Rulings.

[1,2] Buck’s argues that the district court erred in receiving the affidavits of Pfitzer and Phelan into evidence because 

the City failed to disclose them as experts by the discovery 

deadline and because the affidavits lacked foundation and 

were irrelevant. In proceedings where the Nebraska Evidence 

Rules apply, the admissibility of evidence is controlled by 

the Nebraska Evidence Rules; judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility. In re Invol. Dissolution of Wiles Bros., 285 Neb. 

920, 830 N.W.2d 474 (2013). A trial court has the discretion 

to determine the relevancy and admissibility of evidence, and 

such determinations will not be disturbed on appeal unless they 

constitute an abuse of that discretion. Id.

[3,4] Neb. Rev. Stat. § 27-702 (Reissue 2008) governs the 

admissibility of expert testimony and provides that the witness 

must be qualified as an expert: “If scientific, technical, or other 

specialized knowledge will assist the trier of fact to understand 

the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or 
Decisions of the Nebraska Court of Appe

BUCK’S, INC. v. CITY OF OMAHA 545

Cite as 22 Neb. App. 541

education, may testify thereto in the form of an opinion or 

otherwise.” If a witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those 

opinions or inferences which are (1) rationally based on the 

perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. 

Neb. Rev. Stat. § 27-701 (Reissue 2008).

[5] We have reviewed the affidavits and find that the district 

court did not err in overruling the objections and receiving the 

affidavits into evidence. Pfitzer’s and Phelan’s affidavits contained statements based on their own experiences and personal 

knowledge from their involvement in the median project. This 

is proper lay testimony under § 27-701. Although Pfitzer’s 

affidavit included his opinion that Buck’s suffered no decrease 

of ingress or egress, the court was required to give no effect 

to that opinion. See Whalen v. U S West Communications, 253 

Neb. 334, 570 N.W.2d 531 (1997) (statements in affidavits as 

to opinion, belief, or conclusions of law are of no effect), disapproved on other grounds, Gaytan v. Wal-Mart, 289 Neb. 49, 

853 N.W.2d 181 (2014).

[6,7] Buck’s also contends that the affidavits lacked foundation and were irrelevant based on the mistaken belief that 

Pfitzer and Phelan were expert witnesses. The party offering 

testimony has the burden to lay foundation by showing that 

the witness has personal knowledge of the subject matter of 

the testimony. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 

(1993). Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence 

to the determination of the action more probable or less probable than it would be without the evidence. Neb. Rev. Stat. 

§ 27-401 (Reissue 2008).

We find no abuse of discretion in the district court’s conclusion that the affidavits were supported by sufficient foundation and contained relevant evidence. Pfitzer and Phelan both 

stated that they were involved in the construction project on 

the median. Thus, their personal knowledge formed the basis 

of their factual statements. In addition, both affidavits indicated the witnesses’ observations regarding the three access 

points to Buck’s. Because ingress to and egress from Buck’s 
Decisions of the Nebraska Court of Appe

546 22 NEBRASKA APPELLATE REPORTS

was at issue in this case, the affidavits contained relevant 

information. Consequently, the district court did not abuse its 

discretion in overruling the foundational and relevancy objections and in receiving the affidavits into evidence.

Summary Judgment.

Buck’s asserts that the district court erred in denying its 

motion for summary judgment and granting summary judgment 

in favor of the City. Buck’s argues that the City substantially 

impaired ingress to and egress from its property, resulting in a 

compensable taking. We disagree.

[8-10] The right of an owner of property which abuts on a 

street or highway to have ingress to and egress from his premises by way of the street is a property right in the nature of 

an easement in the street, and the owner cannot be deprived 

of such right without due process of law and compensation 

for loss. Maloley v. City of Lexington, 3 Neb. App. 976, 536 

N.W.2d 916 (1995). The right of access of an abutting property owner to a public road is not an unlimited one, however. 

Painter v. State, 177 Neb. 905, 131 N.W.2d 587 (1964). He 

is entitled to reasonable access to abutting private property if 

reasonable access remains. Id.

The district court in the present case relied on Painter to 

hold that because Buck’s has the same access it did before the 

City closed the median cut, the injury to Buck’s was the same 

in kind as that suffered by the general public and is not compensable. We agree and likewise find that Painter controls the 

outcome of this case.

[11-13] In Painter, the plaintiff contended that the construction of islands in the street which prevented left turns onto the 

plaintiff’s property from the west constituted a compensable 

damage. On appeal, the Supreme Court reiterated the general 

rule that an abutting landowner has no vested interest in the 

flow of traffic past his premises and that any damages sustained because of a diversion of traffic are not compensable. 

Id. This rule applies to the control of turns by double lines, 

islands, and median strips. Id. Mere circuity of travel to and 

from real property, resulting from a lawful exercise of the 

police power in controlling traffic, does not of itself constitute 
Decisions of the Nebraska Court of Appe

BUCK’S, INC. v. CITY OF OMAHA 547

Cite as 22 Neb. App. 541

an impairment of the right of ingress and egress to and from 

such property where the resulting interference is but an inconvenience shared in common with the general public and is necessarily in the public interest in making highway travel safer 

and more efficient. Id. If the owner has the same access to the 

general highway system as before, this injury is the same in 

kind as that suffered by the general public and is not compensable. Id.

In other words, the Supreme Court in Painter summarized 

the situation as follows:

Property owners abutting upon a public thoroughfare have 

a right to reasonable access thereto. This right of ingress 

and egress attaches to the land. It is a property right as 

complete as ownership of the land itself. But as to damages claimed by reason of a change in the flow of traffic 

by placing medians in the center of a street, they result 

from the exercise of the police power by the state and 

are noncompensable as being incidental to the doing of a 

lawful act. As such, they are wholly unrelated to the taking of the land for the purpose of widening the street and 

constitute no element of damage to the land remaining 

after the taking.

177 Neb. at 911, 131 N.W.2d at 591.

The argument made by Buck’s in the present case is identical to that asserted by the plaintiff in Painter, which the 

Supreme Court rejected. Elimination of the median cut constitutes a change in the flow of traffic and affects Buck’s in the 

same manner as the general public. After the median cut was 

closed, Buck’s still had access to Stony Brook Boulevard. The 

fact that left-hand turns are now restricted is but an inconvenience shared with the general public.

In addition, according to Pfitzer’s affidavit, if the median 

cut had not been closed, traffic queuing could not be contained 

within “channelized left turn pockets” and safety would be 

compromised. Thus, the City determined that closing the cut 

in the median was necessary for traffic safety. After the change 

to the median, Buck’s retains the same three access points 

that it previously had and retains the ability to access Stony 

Brook Boulevard. As a result, Buck’s is not entitled to any 
Decisions of the Nebraska Court of Appe

548 22 NEBRASKA APPELLATE REPORTS

compensation. We therefore find that the district court did not 

err in denying Buck’s motion for summary judgment and granting summary judgment in favor of the City.

Buck’s directs our attention to Maloley v. City of Lexington, 

3 Neb. App. 976, 536 N.W.2d 916 (1995), to support its position, but we find this reliance misplaced. In Maloley, the 

evidence established that the City of Lexington temporarily 

closed the street directly in front of the plaintiff’s property. 

Here, there is no allegation that the City closed Stony Brook 

Boulevard, prohibiting access to Buck’s. Rather, the City 

modified the median in the middle of Stony Brook Boulevard, 

which, according to Painter v. State, 177 Neb. 905, 131 

N.W.2d 587 (1964), is the lawful exercise of the police power 

and is noncompensable.

CONCLUSION

We conclude that the district court properly overruled the 

objections to the affidavits and received them into evidence. 

In addition, we find no error with respect to the district 

court’s rulings on the parties’ motions for summary judgment. 

Accordingly, we affirm.

Affirme