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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

Tom Ecker et al., appellants, v. 

E & A Consulting Group, Inc., 

et al., appellees.

___ N.W.2d ___

Filed March 22, 2019. No. S-17-1190.

1. Summary Judgment: Appeal and Error. In reviewing the grant of a 

motion for summary judgment, an appellate court views the evidence 

in the light most favorable to the party against whom the judgment was 

granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

2. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

3. Trial: Waiver: Appeal and Error. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

4. Appeal and Error. When an issue is raised for the first time in an 

appellate court, it will be disregarded inasmuch as a lower court cannot 

commit error in resolving an issue never presented and submitted to it 

for disposition.

5. Trial: Waiver: Appeal and Error. One may not waive an error, gamble 

on a favorable result, and, upon obtaining an unfavorable result, assert 

the previously waived error.

6. Trial: Appeal and Error. An issue not presented to or decided on by 

the trial court is not an appropriate issue for consideration on appeal.

7. Negligence: Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect 

the plaintiff from injury, a failure to discharge that duty, and damages 

proximately caused by the failure to discharge that duty.

8. Negligence: Proximate Cause: Words and Phrases. 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.

Nebraska Supreme Court Online Library

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

06/07/2019 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

Appeal from the District Court for Sarpy County: William

B. Zastera and Stefanie A. Martinez, Judges. Affirmed.

Michael L. Storey and John M. Walker, of Lamson, Dugan 

& Murray, L.L.P., for appellants.

Gregory C. Scaglione and John V. Matson, of Koley Jessen, 

P.C., L.L.O., for appellee E & A Consulting Group, Inc.

Gerald L. Friedrichsen and William M. Bradshaw, of 

Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for 

appellee City of La Vista.

John A. Svoboda, of Gross & Welch, P.C., L.L.O., for appellee Sanitary Improvement District No. 237.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and

Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

Tom Ecker, Ruth Ecker, Jim Sledge, and Rosemary Sledge 

own homes in La Vista, Nebraska. After those homes were 

flooded, they brought suit against E & A Consulting Group, 

Inc. (E&A), Sanitary Improvement District No. 237 (SID 

No. 237), the City of La Vista (City), and two other parties who have since been dismissed with prejudice from this 

litigation, alleging that the parties were negligent in various 

ways, which led to the flood damages suffered. The district 

court granted summary judgment in favor of E&A, SID No. 

237, and the City. The Eckers and Sledges (collectively the 

homeowners) appeal. We moved this case to our docket, 

because it presents an issue of first impression regarding 

revisions to the statute allowing motions for summary judgment as set forth in Neb. Rev. Stat. § 25-1332 (Supp. 2017). 

We affirm.
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

II. BACKGROUND

1. Factual Background

The homeowners are neighbors residing in the Cimarron 

Woods area of La Vista. Their homes are adjacent to each 

other, feature walkout basements, and have backyards abutting 

Applewood Creek. The Ecker home has a basement elevation 

of 1,079.009 feet above sea level, and the Sledge home has a 

basement elevation of 1,079.808 feet above sea level.

A 2010 drainage study completed by E&A found that several 

Cimarron Woods homes would flood during a less-than-100-

year flood event. As such, E&A recommended that SID No. 

237 construct a berm at 100-year flood levels. The parties all 

concede that the 100-year flood level was 1,081.9 feet above 

sea level. Plans called for a berm built up to 1,082.5 feet above 

sea level. A berm intended to meet that recommendation was 

built in 2011. As relevant to this appeal, the record indicates 

that the berm had low spots: Adjacent to the Eckers’ backyard, 

the berm was built at 1,081.6 feet above sea level, while adjacent to the Sledges’ backyard, the berm was at 1,081.4 feet 

above sea level.

On June 20 and 21, 2014, a rainstorm in the area generated 

sufficient water to overcome the berm. The record includes 

evidence that the total rainfall measured at the Millard Airport, 

located 3 miles away, was 6.6 inches during an 8-hour period, 

while the total rainfall measured at the City’s public works 

facility, located 1 mile away, was 7.4 inches during an 8-hour 

period. The Ecker and Sledge basements both flooded as a 

result of this storm. The Sledges had 3.5 feet of water in their 

basement, while the Eckers had 5 feet of water in theirs.

Apparently, other homeowners experienced flooding, but 

this litigation involves only the Eckers and the Sledges, who 

filed suit against E&A, BNSF Railway Company (BNSF), 

and Pedcor Management Corporation. Approximately 1 year 

later, their suit was amended to join SID No. 237 and the City. 

Subsequently, E&A, BNSF, SID No. 237, and the City filed 
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302 Nebraska Reports

ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

motions for summary judgment. BNSF’s motion was denied; 

the other motions were granted. The homeowners’ motion 

to reconsider was denied. The action against BNSF was dismissed with prejudice; the action against Pedcor Management 

Corporation was dismissed with prejudice prior to the disposition of the summary judgment motions.

The homeowners appeal.

2. Expert Testimony

George Bryan, an expert for the homeowners, testified that 

E&A, SID No. 237, and the City failed to meet the standard of 

care to protect against flooding. Bryan further testified that the 

City should not have allowed construction of the homes and 

that the drainage did not comply with the “Omaha Regional 

Stormwater Design Manual,” because it was not built for a 

100-year storm event. Bryan specifically testified that the 

maximum flow capacity of the channel running behind the 

Ecker and Sledge homes was less than the peak flow of a 

100-year storm event. Bryan noted that the studies undertaken 

in preparation for building the drainage channel did not take 

into account stormwater flow, but only stormwater storage. 

However, Bryan did agree that the berm was a proper design 

device to prevent flooding and agreed that the storm in question was in excess of a 100-year storm.

BNSF was still a defendant at the time of the summary judgment hearing and introduced the deposition and reports of its 

own expert. According to allegations set forth in the motion for 

summary judgment, the evidence was additionally relied upon 

by other defendants. BNSF’s expert testified that both the size 

of the storm and the design of the area caused the flooding 

in question, specifically noting that the City should not have 

allowed the construction of homes in that area, that the berm 

was not a prudent protective remedy, that the design studies 

underestimated the size of a 100-year flood event, and that SID 

No. 237 did not build the berm to the standards recommended 

by E&A.
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302 Nebraska Reports

ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

E&A’s first expert, Mark Westergard, testified that the flooding was caused by the size of the storm and, perhaps, blockage 

of the nearby BNSF culvert. Westergard noted that there was 

no neighborhood data on the storm and that the closest official totals (of 6.6 inches of rain) were gathered at the Millard 

Airport, located 3 miles away. Westergard observed that the 

Millard Airport rain total exceeded the Omaha Regional 

Stormwater Design Manual but not the “Soil Conservation 

Service” manual, which listed a 100-year storm event at 6.7 

inches of rainfall. Finally, Westergard agreed that SID No. 237 

did not build the berm to the specifications recommended by 

E&A. E&A’s second expert testified that the storm event could 

have been anticipated and that the flooding was caused by the 

magnitude of the storm and culvert blockage.

The City’s engineer testified via deposition that he found 

that the drainage studies complied with the Omaha Regional 

Stormwater Design Manual and the application subdivision 

regulations for the City. In a later affidavit, the engineer indicated that contrary to the homeowners’ contention, their homes 

were not built in a designated floodway and thus those regulations did not apply, and that the drainage provided exceeded 

that required by other regulations.

III. ASSIGNMENTS OF ERROR

The homeowners assign, restated and consolidated, that the 

district court erred in granting summary judgment in favor of 

E&A, SID No. 237, and the City.

IV. STANDARD OF REVIEW

[1,2] In reviewing the grant of a motion for summary 

judgment, an appellate court views the evidence in the light 

most favorable to the party against whom the judgment was 

granted, giving that party the benefit of all reasonable inferences deducible from the evidence.1

 Statutory interpretation 

1 See Ewers v. Saunders County, 298 Neb. 944, 906 N.W.2d 653 (2018).
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ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

presents a question of law, for which an appellate court has an 

obligation to reach an independent conclusion irrespective of 

the decision made by the court below.2

V. ANALYSIS

The homeowners assign that the district court erred in granting summary judgment to E&A, SID No. 237, and the City. 

Specifically, they argue that (1) there were genuine issues of 

material fact preventing summary judgment in favor of E&A, 

SID No. 237, and the City; (2) E&A and SID No. 237 failed 

to file statements of undisputed fact cited to in the record as 

required by § 25-1332(2) and Rules of Dist. Ct. of Second Jud. 

Dist. 2-7 (rev. 2018); and (3) E&A and SID No. 237 failed to 

submit a brief in support of their motion for summary judgment as required by rule 2-7.

1. Failure to File Statements

of Fact and Briefs

The homeowners argue on appeal that E&A and SID No. 

237 failed to meet their prima facie burden for summary judgment, because both failed to comply with the requirements set 

forth in § 25-1332(2). That subsection requires a party to provide citations to the record to support its assertion that a fact 

cannot be or is genuinely disputed. As an initial matter, E&A 

and SID No. 237 argue that the homeowners did not object 

to the failure to cite to the record and thus have waived this 

argument on appeal. We agree.

[3-6] We have often said that failure to make a timely objection waives the right to assert prejudicial error on appeal.3

When an issue is raised for the first time in an appellate court, 

it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted 

2 Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900 

N.W.2d 909 (2017).

3 State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
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ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

to it for disposition.4 One may not waive an error, gamble on 

a favorable result, and, upon obtaining an unfavorable result, 

assert the previously waived error.5 For that reason, an issue 

not presented to or decided on by the trial court is not an 

appropriate issue for consideration on appeal.6

The homeowners noted at the hearing on the motions for 

summary judgment that E&A and SID No. 237 did not file 

briefs with their motion. But they did not make any objection 

to this failure, or to the failure of E&A and SID No. 237 to cite 

to the record. As such, we agree that the homeowners waived 

consideration of this issue on appeal and decline to address this 

issue on appeal.

While we conclude that the issue was waived, we do observe 

that district courts generally retain considerable discretion with 

respect to the procedures used in their courtrooms. And indeed, 

§ 25-1332(3) also provides considerable discretion to the district court in the event that § 25-1332(2) is not complied with. 

Moreover, we have held that “‘[i]n appropriate circumstances 

where no injustice would result, the district court may exercise 

its inherent power to waive its own rules.’”7

2. Summary Judgment

[7] We turn next to a review of the district court’s grant of 

summary judgment. In order to prevail in a negligence action, 

a plaintiff must establish the defendant’s duty to protect the 

plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.8

The legal duty owed in this case was to design and build a 

drainage solution for a 100-year storm or rain event.

4 Id.

5 Id.

6 Id.

7 Kibler v. Kibler, 287 Neb. 1027, 1031-32, 845 N.W.2d 585, 589 (2014).

8 Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

(a) Negligence of E&A 

and SID No. 237

In their petition, the homeowners alleged that E&A and SID 

No. 237 owed them a duty to design, engineer, and maintain 

an effective stormwater management plan and that this duty 

was breached. On appeal, the homeowners argue that E&A 

failed to design the berm to an adequate height, that SID No. 

237 failed to construct the berm as designed, and that these 

breaches were the proximate cause of the homeowners’ damages. The homeowners also contend that the decision of E&A 

and SID No. 237 in choosing a berm and constructing a berm, 

rather than adopting other flood control measures, caused 

the flooding.

E&A’s goal in its various drainage studies was to protect 

the homes in this subdivision from a 100-year storm event. 

E&A concluded that to accomplish this, an earthen berm 

should be built to 1,082.5 feet above sea level. This height 

exceeded the 100-year storm event elevation of 1,081.9 feet 

above sea level. This recommendation was based in part on 

a conclusion on the part of E&A, later proved false, that the 

BNSF culvert was round and 52 inches in diameter, when in 

reality, the culvert was elliptically shaped and was 52 inches 

by 48 inches. In addition, the record shows that the berm had 

low spots at 1,081.4 and 1,081.6 feet above sea level.

BNSF’s expert testified that he felt that usage of the berm 

as a flood control device was “imprudent” and that he would 

have recommended the use of a detention/retention system. But 

the expert agreed in his testimony that had the berm been constructed at a height about 3 inches higher than recommended 

by E&A, it would have been sufficient. The homeowners’ 

expert testified that due to vegetation in the BNSF culvert that 

was not properly accounted for, the berm should have been 

1 to 1.5 feet higher than its lowest point, or approximately 

1,082.9 feet above sea level.

E&A and SID No. 237 had a duty to the homeowners to 

provide flood protection from a 100-year storm and chose to 
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ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

provide this protection by constructing a berm. We assume 

without deciding that E&A breached this duty when it recommended construction of a berm over other flood control measures, and then miscalculated the appropriate height of that 

berm, and further, that SID No. 237 breached its duty when the 

berm, as constructed, included several low spots.

[8] But the homeowners are unable to show that these 

breaches were the proximate cause of the flooding. “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.”9

The uncontroverted evidence in the record, including the 

testimony of all the experts, shows that the storm that occurred 

the evening and early morning hours of June 20 and 21, 2014, 

exceeded a 100-year storm event. The evidence was also 

uncontroverted that the water elevation in the drainage basin 

reached 1,083.7 feet above sea level, or nearly 1 foot above 

the highest recommended height of the berm. Even if the berm 

had been built to the specifications which the experts recommended in hindsight, the rain event was still so significant that 

the homeowners’ properties would have flooded. The fact that 

there was evidence that the flooding might have begun at a 

point earlier than a 100-year event is immaterial to this conclusion, given that the 100-year event threshold was eventually 

met. In sum, the storm event was ultimately the cause of the 

flooding, not any defect in the berm.

Because the uncontroverted evidence showed that regardless 

of any breach of duty by E&A or SID No. 237, the proximate 

cause of the homeowners’ damages was the magnitude of the 

storm. As such, the district court did not err in granting E&A 

and SID No. 237’s motions for summary judgment.

9 Strode v. City of Ashland, 295 Neb. 44, 68, 886 N.W.2d 293, 310 (2016).
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ECKER v. E & A CONSULTING GROUP

Cite as 302 Neb. 578

(b) Negligence of City

The homeowners also assert that the district court erred 

in granting summary judgment to the City. Specifically, the 

homeowners contend the City was required to ensure that the 

E&A drainage studies conformed to the City’s regulations, 

which required a stormwater management plan to handle the 

minimum of a 100-year storm.

As we concluded above with respect to E&A and SID No. 

237, even if the homeowners could show that the City breached 

its duty, the homeowners cannot show that this breach was 

the proximate cause of their damage. While the homeowners 

direct us to varying rainfall totals in the area, all of the experts, 

including the homeowners’ expert, agreed that the storm was in 

excess of a 100-year event.

We need not address the various arguments that the storm 

was an “act of God,” or could not otherwise have been anticipated, because the only relevant duty at issue was the duty to 

protect against a 100-year storm, and the storm in this case 

was undisputedly larger than a 100-year storm. Because the 

storm exceeded the size of storm for which a duty was owed, 

the proximate cause of any damage was the storm and not any 

breach of duty.

The district court did not err in granting summary judgment 

in favor of E&A, SID No. 237, or the City. There is no merit 

to the homeowners’ arguments on appeal.

VI. CONCLUSION

The decision of the district court granting summary judgment in favor of E&A, SID No. 237, and the City is affirmed.

Affirmed.

Miller-Lerman, J., not participating.