                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                YOST V. VILLAGE OF NORTH LOUP


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                            DAVID AND KRISTINE YOST, APPELLANTS,
                                                V.

                        VILLAGE OF NORTH LOUP, NEBRASKA, APPELLEE.


                           Filed November 29, 2016.     No. A-15-861.


       Appeal from the District Court for Valley County: KARIN L. NOAKES, Judge. Affirmed.
       Christopher P. Wickham, of Sennett, Duncan, Jenkins & Wickham, P.C., L.L.O., for
appellants.
       Heather L. Sikyta, of Sikyta Law Office, for appellee.


       Moore, Chief Judge, and RIEDMANN and BISHOP, Judges.
       Moore, Chief Judge.
                                      I. INTRODUCTION
        David and Kristine Yost appeal from orders of the district court for Valley County in favor
of the Village of North Loup, Nebraska. The matter arose from flooding in the Yosts’ basement.
The court found the Yosts failed to prove the backup was sewage or that the Village was
responsible; denied the Yosts’ claims of negligence, res ipsa loquitur, and inverse condemnation;
and overruled the Yosts’ motion for new trial. Because we find no error, we affirm.
                                       II. BACKGROUND
                       1. BASEMENT FLOODING AND RESULTING DAMAGE
      On May 30, 2007, the Yosts discovered water in the basement of their residence in North
Loup. Upon inspection, David found a layer of ankle-deep water covering the basement floor.



                                               -1-
David described the backup as “sewer water” which “stunk” and was “dark,” “brown,” “murky,”
and “discolored,” stating further that “it looked like sewer water and it smelled like sewer water.”
David confirmed the presence of debris on the floor after the water receded, having the appearance
of “leftover from toilet run over.”
        David contacted James Goodrich, Village Board Chairman, shortly following his
discovery, informing him that sewer water was infiltrating his basement. Goodrich confirmed
receiving this message regarding the flooding, but did not visit the Yosts’ property, feeling that
there was nothing he could accomplish by doing so. David also contacted Tom Essman, a Village
board member, to report the issue. Essman also did not visit the basement following the incident.
Carrie Hansen, Clerk of the Village of North Loup, did not recall anyone from the Village visiting
the residence, but believed they were not asked to do so. David clarified at trial that he did not
specifically request that anyone affiliated with the Village visit the residence, but he “just figured
somebody probably would” visit the residence based on his report.
        David rented and set up a gas-operated transfer pump in the basement during the morning
of May 30, with the assistance of Bud Carlson, a Village resident, and started pumping water out
of the house. David encountered difficulties with the gas-operated pump and consequently was
required to rent an electric-powered pump. When he reinitiated pumping using the electric pump,
David observed the water to be 10 to 12 inches deep in the basement. David identified the source
of the backup as the laundry room floor drain. David observed water boiling out of this drain at a
height of two feet. Once this was plugged, the water began boiling out of the basement toilet at a
height of two feet, which was subsequently sealed. David testified that once the floor drain, toilet,
and basement sink were all plugged, it took from Wednesday to Saturday or Sunday to pump all
the water out of the residence.
        A restoration company arrived at the residence one week after the backup was discovered
and removed all the furniture out of the basement. They also cut four feet of drywall out of the
basement bedroom addition and tore down the entire wall of paneling in the older area of the
basement. The flooding also damaged personal property in the basement. At the direction of the
restoration company, the Yosts discarded most of the damaged property to avoid any
contamination from contact with the water.
                                           2. COMPLAINT
        On April 27, 2009, the Yosts filed suit against the Village of North Loup pursuant to the
Political Subdivisions Tort Claims Act. The Yosts brought the following causes of action against
the Village which are applicable to this appeal: negligence, res ipsa loquitur, and inverse
condemnation. The Yosts requested special damages in the amount of $150,000 plus reasonable
compensation for general damages incurred. The Village filed an answer containing a general
denial of the allegations.
                                              3. TRIAL
        On June 22 and 23, 2015, trial was held before the district court. In addition to the testimony
of the Yosts describing the backup and the resulting damage as set forth above, they also offered
into evidence photographs of the damage to their basement, an estimate of their personal property




                                                 -2-
loss, summary of expenses, and numerous invoices and receipts from various service providers
and retailers.
                                  (a) Potential Causes of Incident
       Evidence was presented at trial addressing potential causes of the incident, including an
inadequate sewer system or excessive groundwater from heavy rain.
                                   (i) Adequacy of Sewer System
        Richard Snyder, a licensed civil engineer, testified as an expert witness for the Yosts.
Snyder completed an engineering report on the Village’s sewer system. Snyder testified that the
Village’s sewage retention lagoons were grossly inadequate in size. Snyder also noted that the
“overflow control box” had been abandoned. The purpose of this box was to prevent water from
flowing over the banks of the lagoon. However, Snyder observed that a pump, along with a propane
tank, tractor, and pipes leading away from the lagoon site, had been installed for the purpose of
discharging the lagoon into a nearby farm field. Snyder testified that this system, which appeared
to be permanent in nature, was put in place to counter the “grossly undersized” lagoon system.
        Snyder’s report concluded that the brunt of responsibility for the flooding of Yost’s
basement fell directly upon the Village, and that the operation of the “municipal wastewater
treatment plant” (i.e., sewage lagoon) can “most certainly be classified as negligent and
haphazard.” However, Snyder agreed on cross-examination that the Village’s lagoon would have
overflowed its banks prior to backing up into the Yosts’ basement based on their comparative
elevation. The floor of the basement was measured to be five feet higher than the top of the lagoon.
Snyder assumed the cause of the backup was tree roots clogging the sewer line near the Yosts’
residence. However, Snyder did not inspect the line to identify if roots were present.
        Reed Miller, also a licensed civil engineer, testified as an expert witness for the Village.
Reed similarly testified that the sewage lagoons needed to be at least twice as big to satisfy current
size requirements. However, Miller testified that the size of the lagoon system would only affect
treatment, not the flow of water through pipes. Specifically, Miller indicated that deficiencies at
the lagoon site would not cause a backup similar to that described by David. Miller also stated that
an operational overflow control box is not necessary for the lagoons to work properly.
        Miller testified that based on the Yosts’ basement floor’s higher elevation, a lagoon backup
could not have been the cause of flooding. Miller confirmed that the lagoon would flow over its
banks before backing up into the sewer lines. Rather, Miller opined that a blockage in the sewer
line would have to exist for a sewer backup to occur in the Yosts’ basement. Miller testified to
numerous ways such a backup could occur, including roots, pipe capacity being taken up by
citizens using sump pumps, an intermittent clog, a flushed diaper, rainwater, or some combination
of these factors. Miller was unaware of any way the Village could know that such a problem was
present until a backup occurred.
        Miller also noted that the backup could have specifically resulted from a problem with the
service line between the Village’s main sewer line and the Yosts’ residence. Although the addition
to the Yosts’ basement and plumbing was relatively new, having been installed around 2004,
Miller indicated that it is possible for new service lines to plug. Testimony received at trial




                                                -3-
reflected that the resident is responsible for issues with the service line while the municipality is
responsible for the main line, as established by ordinance.
        Miller testified that if there was a clog in the Village main sewer line to which the Yosts’
service line attached, it would be anticipated that every home on the same main line located behind
the clog, or with a basement of similar elevation, would have a backup. However, Miller testified
that of the three backups reported to the Village that same day, none were on the same main line
as the Yosts. Snyder in turn noted at least six homes reporting a backup, but the record is unclear
where these residences were located.
                                    (ii) Excessive Groundwater
         Excessive groundwater from heavy rain was also examined as a potential cause of flooding
during the period at issue. Various testimony reflected that excessive groundwater could cause
basement flooding either through overloading the sewer system and/or seeping directly into the
basement.
         The rainfall records for the Village indicate that 8.2 inches of rain fell during May 2007.
Of this amount, 6.81 inches fell between May 22 and May 30, with 3.85 inches falling on May 30
alone. In response, the Village conducted emergency discharge pumping of the lagoon to counter
the heavy rainfall, following communication between Hansen and an engineer with the Nebraska
Department of Environmental Quality. The engineer noted that Hansen reported water one foot
below the manholes in the Village, the lagoon was filling up, and she was receiving calls “about
sewage in peoples (sic) basements.”
         James Heyen, formerly employed by the Nebraska Rural Water Association, submitted a
letter to the Village addressing the rainfall issue. Heyen specified that increased wastewater flow
around the date of the incident was the result of “rising groundwater, causing seepage into the
sewer system for a long period of time” along with “one customer pumping groundwater from
their basement into the village’s sewer system.” Heyen concluded the letter by opining that “a
large amount rainfall fell (sic) in a short period of time, would cause the sewer system to be
hydraulically overloaded for several days or longer.”
         A claim pertaining to the flooding of the Yosts’ basement was denied by the Village’s
insurance company due to the amount of rainfall occurring that May. The denial letter from the
insurance company described the amount of rainfall as “excessive” and a “rare occurrence in
Nebraska.”
         Both Snyder and Miller testified that an influx of groundwater, surface water, or rainwater
could have caused the sewer main line to fill up and overload. Miller further testified that for water
to be spouting out of David’s basement toilet, the sewer main “would have to be pressurized and
totally full” as a result of a clog combined with continual water flow into the sewer. Miller testified
that if the pumping took longer than half a day with all sewer access points plugged, as was the
case with the Yost’s basement, then “[m]ore water had to be coming in.” Miller confirmed such
other source as possibly groundwater seeping in through the walls. Miller indicated that there is
no way to know exactly what caused the backup in question.
         Testimony was received regarding the flooding which occurred in several other residences
during the period at issue. Richard Myers, a Village employee, testified to assisting a neighbor



                                                 -4-
who lived across the street from the Yosts, whose basement contained 4 to 6 inches of water.
According to Myers, the water had the appearance of groundwater, and was seeping through the
basement walls and bubbling through the basement floor. Jerry Marshall, another Village
employee, similarly recalled reports of water passing through floors and walls, as a result of the
“high water table.” Hansen noted that two other homes reported water coming in through a
basement toilet. James Goodrich, a Village board member, testified to having groundwater enter
his basement, reaching a depth of 4 inches. Carlson testified that his basement was flooded with
groundwater during this time. As noted previously, Carlson indicated that the water in Yosts’
basement was cloudy, but he did not recall it smelling. Carlson confirmed observing sewer water
before, and knowing the difference between sewer water and groundwater.
                               (b) Available Preventative Measures
        Testimony was also presented regarding methods available to municipalities to maintain
an effective sewer system.
                            (i) Flushing and Pumping of Sewer Mains
        Marshall testified that the Village tries to flush out the sewer mains each spring, but in
actuality this occurs every two years. Hansen testified that the Village tries to flush the mains each
spring and fall. Marshall has had to “snake” a particular sewer line to remove tree roots on several
occasions. Marshall did not recall any issues with the sewer system around the Yost residence
prior to May 30, 2007.
        Marshall testified that the Village also pumps the sewer lines approximately two times per
year, depending on the amount of rain. This was done more often in years with higher rainfall.
Marshall confirmed doing such pumping of the water mains out of manholes following the heavy
rainfall at issue.
                                         (ii) Smoke Testing
         A second method of evaluating sewer systems addressed at trial was “smoke testing.”
Snyder testified that smoke testing is utilized to locate any surface water entry points into a sewer
system, such as cracks, which in turn could be removed. Goodrich did not recall the Village
conducting smoke testing in its sewer system prior to the date of the incident, or that such testing
was recommended.
         Snyder testified that most communities similar in size to North Loup conduct such testing.
To the contrary, Heyen, Johnson, and Miller all testified that most villages do not perform smoke
testing unless there is a problem with the system. There is no requirement by the Nebraska
Department of Environmental Quality to administer smoke testing on a regular basis.
         Heyen conducted a smoke test of the Village’s sewer system following the incident, in
November 2007. This test identified several sewer “cleanouts” as a potential source of water
infiltration. The results of the smoke test did not alter Heyen’s conclusion that a substantial amount
of rainwater/groundwater was the cause of the backup in May 2007.




                                                -5-
                                               4. ORDER
        On July 28, 2015, the court entered judgment in favor of the Village. In reaching this
decision, the court first made several factual findings, noting that each cause of action brought by
the Yosts rested on the same factual claim; specifically, “that sewage entered the (Yosts’) basement
resulting in damage and that some action or inaction by the Village caused the damage.”
        The court found that the Yosts failed to prove by a preponderance of the evidence that the
liquid in their basement was sewage or that the Village negligently caused the sewage. The court
also found that the res ipsa loquitur claim failed. The court dismissed each cause of action and
entered judgment in favor of the Village. The Yosts filed a motion for new trial, which was
overruled.
        The Yosts subsequently perfected this appeal.
                                  III. ASSIGNMENTS OF ERROR
       The Yosts assign, restated, that the district court erred in (1) finding the Yosts failed to
prove that it was sewage that backed up into their basement; (2) holding the Village was not
responsible for the backup; (3) ruling in favor of the Village with respect to the Yosts’ claims of
negligence, res ipsa loquitur, and inverse condemnation; and (4) overruling the Yosts’ motion for
new trial.
                                   IV. STANDARD OF REVIEW
        In actions brought under the Political Subdivisions Tort Claims Act, an appellate court will
not disturb the factual findings of the trial court unless they are clearly wrong. Maclovi-Sierra v.
City of Omaha, 290 Neb. 443, 860 N.W.2d 763 (2015). In actions brought pursuant to the Political
Subdivisions Tort Claims Act, when determining the sufficiency of the evidence to sustain the trial
court’s judgment, it must be considered in the light most favorable to the successful party; every
controverted fact must be resolved in favor of such party, and it is entitled to the benefit of every
inference that can reasonably be deduced from the evidence. Id. An appellate court reviews
questions of law independently of the lower court’s conclusion. Id.
        In a bench trial of an action at law, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Henderson v. City of Columbus, 285 Neb.
482, 827 N.W.2d 486 (2013). An appellate court will not reevaluate the credibility of the witnesses
or reweigh testimony but will review the evidence for clear error. Id.
        An appellate court reviews a denial of a motion for new trial for an abuse of discretion.
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
                                            V. ANALYSIS
                                        1. NATURE OF BACKUP
       The Yosts argue that the district court erred in finding that they failed to prove that sewage,
as opposed to groundwater, backed up into their basement.
       In reaching the conclusion that the Yosts failed to prove that sewage, as opposed to
groundwater, backed up into their basement, the district court noted that while David claimed the
water smelled and was sewage, Carlson observed the backup as cloudy but not emitting a smell.



                                                  -6-
Additionally, the court considered the large amount of rainfall during the period at issue and
evidence that other homes flooded, but that it was in the form of rainwater. The court also gave
considerable weight to the testimony of Miller in reaching its determination that the backup was
not in the nature of sewage, but was more probably in the nature of groundwater. The court
specifically noted Miller’s belief that the Yosts did not experience a sewage backup, because if
that had been the case, Miller would expect other residences sharing the same main sewer line to
have also experienced sewage backups, which was not reflected by the record. Additionally, the
court considered that Miller, after reviewing the evidence, opined that if the backup was sewage,
it should have only taken half a day to pump out rather than several days as attested to by David.
This was more indicative of groundwater continuing to seep into the basement. The court further
observed that the basement photographs did not support the Yosts’ claim that the liquid was
sewage rather than groundwater.
         Upon our review, we find no clear error in the factual findings of the district court. Viewing
the evidence in the light most favorable to the Village, there was sufficient evidence to sustain the
district court’s determination that the Yosts failed to prove that the nature of the backup in their
basement was sewage. The trial court credited the evidence adduced by the Village in its finding.
The trial court is the sole judge of witness credibility and testimonial weight, and this court will
not reevaluate these factors in the absence of clear error. We find no clear error in the court’s
credibility determination. We also note that Snyder admitted that groundwater could have caused
the backup in the Yosts’ basement.
         The Yosts’ first assignment of error is without merit.
                                  2. RESPONSIBILITY FOR BACKUP
        The Yosts argue that the district court erred in finding that the Village was not responsible
for the backup due to an inadequate sewer system, negligent operation of the sewer system, failure
to regularly flush the system, and a failure to conduct smoke testing prior to the incident.
        The district court based its finding that the Yosts failed to prove their basement flooding
was caused by any action or inaction by the Village primarily upon its conclusion that Miller’s
testimony was more persuasive than that provided by Snyder. The court found no evidence to
support Snyder’s claim that the buildup of roots damaged the sewer system. Also, while the experts
agreed that the lagoon system was deficient, the court found no evidence identifying this as the
cause of the backup. Specifically, the court cited Miller’s testimony that the lagoon would
overflow before sewage could backup into the sewer lines.
        Upon our review, we find no clear error in the district court’s determination that the Yosts
failed to prove the Village was responsible for the backup. The factual findings of the court were
not clearly erroneous. Considered in the light most favorable to the Village, there was sufficient
evidence to support a finding that actions or inactions by the Village did not cause the backup of
water that occurred in the Yosts’ basement. Nor do we find clear error in the district court’s finding
that Miller’s testimony was more persuasive than that of Snyder.
        In addition to the district court’s findings above, we consider the testimony of Snyder
which admitted that the inadequacies of the lagoon system did not cause the backup and that
excessive groundwater could have been a cause of the backup.



                                                 -7-
        Finally, evidence was presented regarding the Village’s prior maintenance of the sewer
lines, including its flushing, pumping, and snaking the lines. There was no evidence of prior
problems with the sewer system that could cause the backup in the Yost residence, or prior
knowledge by the Village of problems to put them on notice and require further inspection and
testing. Although the Village did not conduct smoke testing prior to this incident, there was no
requirement for the Village to do so and the subsequent smoke testing did not establish that the
backup was caused by the Village as opposed to the substantial amount of rainfall and
groundwater.
        The Yosts’ second assignment of error is without merit.
                             3. CAUSES OF ACTION AGAINST VILLAGE
        The Yosts argue on appeal that the court erred in dismissing its claims of negligence, res
ipsa loquitur, and inverse condemnation.
                                           (a) Negligence
        A negligence action brought under the Political Subdivisions Tort Claims Act has the same
elements as a negligence action against an individual. Desel v. City of Wood River, 259 Neb. 1040,
614 N.W.2d 313 (2000). In order to prevail in a negligence action, there must be a legal duty on
the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and
damage proximately caused by the failure to discharge that duty. Deviney v. Union Pac. R.R. Co.,
280 Neb. 450, 786 N.W.2d 902 (2010).
        As set forth above, the district court found that the Yosts failed to prove that some action
or inaction by the Village caused the damage, and we conclude that there was sufficient evidence
to support this finding. Thus, the Yosts have failed in establishing the required element of
causation, and accordingly, their negligence action must likewise fail. The district court did not err
in dismissing this cause of action.
                                       (b) Res Ipsa Loquitur
        The doctrine of res ipsa loquitur is an exception to the general rule that negligence cannot
be presumed. Res ipsa loquitur is a procedural tool that, if applicable, allows an inference of a
defendant’s negligence to be submitted to the fact finder, where it may be accepted or rejected.
McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386 (2011). There are three
elements that must be met for res ipsa loquitur to apply: (1) The occurrence must be one which
would not, in the ordinary course of things, happen in the absence of negligence; (2) the
instrumentality which produces the occurrence must be under the exclusive control and
management of the alleged wrongdoer; and (3) there must be an absence of explanation by the
alleged wrongdoer. Id.
        The district court held that the res ipsa loquitur claim failed “because water filling a
basement is not the type of incident that normally happens as the result of the negligence of the
Village.” In support thereof, the court noted that the evidence showed many things which could
have caused the basement to flood, and the most likely cause was “the extraordinary amount of
rain the area had received.”




                                                -8-
         Upon our review, we find that the district court did not err in dismissing the Yosts’ res ipsa
loquitur claim. Considering the factual findings of the court in a light most favorable to the Village,
it is clear from our review that the elements of res ipsa loquitur are not satisfied in the present case.
There was sufficient evidence demonstrating the existence of various potential explanations for
the backup in the Yosts’ basement, including the excessive rainfall, to preclude a finding that it
could not have occurred in the absence of the Village’s negligence.
                                      (c) Inverse Condemnation
         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. Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486
(2013). Inverse condemnation has been characterized as an action or eminent domain proceeding
initiated by the property owner rather than the condemnor, and has been deemed to be available
where private property has been actually 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 in an inverse condemnation cannot compel the return of the property taken; however, as a
substitute, the property owner has a constitutional right to just compensation for what was taken.
Id.
         The threshold issue in an inverse condemnation case is to determine whether the property
allegedly taken or damaged was taken or damaged as the result of the exercise of the governmental
entity’s exercise of its power of eminent domain; that is, was the taking or damaging for public
use. Id. In order to meet the initial threshold in an inverse condemnation case 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. Id.
         The Yosts argue that the alleged entry of sewage upon their property from sewer lines
under the ownership and control of the Village was a public taking of private property, amounting
to inverse condemnation.
         The district court did not make a specific finding relative to the inverse condemnation
claim. However, it did conclude that because the Yosts failed to prove by a preponderance of the
evidence that the liquid in their basement was sewage or that the Village negligently caused the
sewage to enter the basement, each cause of action was dismissed. Having concluded that the
district court’s findings in these regards were not clearly wrong, we find that the Yosts’ inverse
condemnation claim must fail. The evidence does not support a finding that sewage entered the
Yosts’ property as a result of the Village’s control of the sewer lines or that their property was
taken by the Village for public use.
         We also note case law reflecting that a single instance of sewage backup is insufficient to
constitute a taking. Rather, frequent flooding is required, which did not occur in this case. See
Henderson v. City of Columbus, 285 Neb. 482, 494-495, 827 N.W.2d 486, 496 (2013) (flooding
may be a compensable taking when it is frequent, which is consistent with the requirement for a
taking or damaging of property to be a known or foreseeable result of government action for public
use).



                                                  -9-
       The Yosts’ claim of inverse possession is without merit.
                                     4. MOTION FOR NEW TRIAL
        The Yosts argue that the district court erred in overruling their motion for new trial, on the
basis that the judgment was contrary to the law and evidence presented at trial.
        Having found sufficient evidence to support the district court’s decision, it is clear that the
court’s judgment was not contrary to law or the evidence presented.
        The Yosts’ final assignment of error is without merit.
                                        VI. CONCLUSION
        Upon our review, we find that the district court did not err in its dismissal of the causes of
action brought by the Yosts against the Village of North Loup, nor in its denial of a motion for
new trial. Accordingly, we affirm.
                                                                                           AFFIRMED.




                                                - 10 -
