Villanueva v. City of South Sioux City

In that portion of the opinion designated the “Analysis,” we
strike the following language from the opinion, id. at 193, 741
N.W.2d at 721:
[15] Intent is not an element of first degree sexual
assault as defined by § 28‑319, one of the offenses with
which Sutton was charged. See State v. Sanchez, 257 Neb.
291, 597 N.W.2d 361 (1999). Intent, however, must be
proved with respect to the second degree assault charge.
We replace the stricken language with the following:
[15] First degree sexual assault under § 28‑319(1)(a)
is a general intent crime. State v. Koperski, 254 Neb.
624, 578 N.W.2d 837 (1998). Intent must be proven with
respect to the second degree assault charge.
We also withdraw the language of syllabus point 15, and we
replace it with the following:
Sexual Assault: Intent. First degree sexual assault under
Neb. Rev. Stat. § 28‑319(1)(a) (Reissue 1995) is a general
intent crime.
The remainder of the opinion shall remain unmodified.
F ormer opinion modiFied .
motion For rehearing overruled .
S antoS a. villanueva , appellant , v . C ity oF
S outh S ioux C ity , a politiCal
SubdiviSion , appellee .
743 N.W.2d 771
Filed January 8, 2008. 	No. A‑06‑321.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. 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.
288 	16 NebRASkA APPellATe RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

4. Political Subdivisions Tort Claims Act: Jurisdiction. While not a jurisdictional
prerequisite, the filing or presentment of a claim to the appropriate political sub‑
division is a condition precedent to commencement of a suit under the Political
Subdivisions Tort Claims Act.
5. Political Subdivisions Tort Claims Act: Notice. 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.
6. ____: ____. The notice requirements for a claim filed pursuant to the Political
Subdivisions Tort Claims Act are liberally construed so that one with a meritorious
claim may not be denied relief as the result of some technical noncompliance with
the formal prescriptions of the act.
7. ____: ____. Substantial compliance with the statutory provisions pertaining to
a claim’s content supplies the requisite and sufficient notice to a political sub‑
division in accordance with Neb. Rev. Stat. § 13‑905 (Reissue 1997) when the lack
of compliance has caused no prejudice to the political subdivision.
Appeal 	from 	the 	District 	Court 	for 	Dakota 	County:
W illiam binkard, Judge. Reversed and remanded for fur‑
ther proceedings.
Steven H. Howard, of Dowd, Howard & Corrigan, l.l.C., for
appellant.
Thomas J. Culhane, of erickson & Sederstrom, P.C., for
appellee.
inbody, Chief Judge, and C arlSon and C aSSel, Judges.
C arlSon, Judge.
INTRoDUCTIoN
Santos A. Villanueva brought a negligence action against the
City of South Sioux City (the City) following an automobile
accident with an employee of the City. The district court for
Dakota County sustained the City’s motion for summary judg‑
ment and overruled Villanueva’s motion for partial summary
judgment. Villanueva appeals. At issue in this case is whether
Villanueva complied with the notice requirements of the Political
Subdivisions Tort Claims Act (Tort Claims Act), Neb. Rev. Stat.
§§ 13‑901 to 13‑926 (Reissue 1997 & Cum. Supp. 2002).
VIllANUeVA v. CITy oF SoUTH SIoUx CITy 	289
Cite as 16 Neb. App. 288

bACkGRoUND
on September 26, 2003, Villanueva filed an amended com‑
plaint against the City, alleging that he was injured on February
25, 2002, as a result of an automobile accident with Paul black,
an employee of the City. The amended complaint alleged that
the accident was caused by black’s negligence and that at the
time of the accident, black was operating a vehicle owned by
the City and was acting in the course and scope of his employ‑
ment with the City. Villanueva claimed that as a result of the
injuries he sustained in the accident, he has incurred medical
expenses in excess of $100,000 and has and will continue to
suffer physical pain, mental suffering, loss of enjoyment of life,
loss of income, scarring, and disfigurement. Villanueva also
alleged that he timely filed a claim with the City pursuant to
the Tort Claims Act and that he has fully complied with the Tort
Claims Act.
on october 20, 2003, Villanueva filed a motion for partial
summary judgment, and on November 3, the City filed a motion
for summary judgment. both motions were made in regard to
the same issue—whether Villanueva complied with the notice
requirements of the Tort Claims Act. on June 4, 2004, the
trial court found that Villanueva had complied with the notice
requirements of the Tort Claims Act and sustained Villanueva’s
motion for partial summary judgment and overruled the City’s
motion for summary judgment.
on December 27, 2005, the City filed a motion asking the
trial court to reconsider its ruling on Villanueva’s motion for
partial summary judgment and the City’s motion for summary
judgment. on February 14, 2006, a hearing was held on the
motion to reconsider. The evidence at the hearing on the motion
to reconsider included a letter from Villanueva’s attorney dated
April 15, 2002, addressed to the city clerk, city attorney, and
city administrator. The letter stated as follows:
Please be advised that we represent . . . Villanueva
who received serious personal injuries on February 25,
2002. . . . Villanueva was traveling north bound on 3rd
Avenue at its intersection with W. 7th Street, when a pick‑
up truck owned by the City . . . and driven by . . . black,
entered the intersection and struck the driver’s side of . . .
290 	16 NebRASkA APPellATe RePoRTS

Villanueva. . . . Villanueva has suffered personal injury as
a result of this collision. our investigation of the accident
reveals that the personal injury suffered by . . . Villanueva
was solely and proximately caused by the negligence of
the City.
This letter shall serve as our notice to you under the
Political Subdivision[s] Tort Claims Act, Neb. Rev. Stat.
Sec. 13‑902 et. seq. for the personal injuries sustained by
. . . Villanueva as a result of said occurrence. Would you
kindly request the attorney responsible for the handling of
this claim to contact me.
The evidence also included a January 7, 2003, letter from
Villanueva’s new counsel to the City’s city clerk, city attorney,
and city administrator which advised that he had been retained
to represent Villanueva in his “injury auto accident” with a
vehicle owned by the City and that it was Villanueva’s position
that the City was at fault. The January 7 letter also referenced
the April 15, 2002, letter, included a copy of such letter, and
asked whether “a decision on this claim” had been made.
on February 22, 2006, the trial court entered an order finding
that the two letters, taken together or separately, did not satisfy
the requirements of § 13‑905. The trial court sustained the City’s
motion for summary judgment, overruled Villanueva’s motion
for partial summary judgment, and dismissed Villanueva’s
amended complaint. Villanueva appeals.
ASSIGNMeNTS oF eRRoR
Villanueva assigns that the trial court erred in (1) sustaining
the City’s motion for summary judgment and (2) overruling
Villanueva’s motion for partial summary judgment.
STANDARD oF ReVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
as to any material fact 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. Alston v. Hormel Foods
Corp., 273 Neb. 422, 730 N.W.2d 376 (2007); City of Lincoln
v. Hershberger, 272 Neb. 839, 725 N.W.2d 787 (2007). In
VIllANUeVA v. CITy oF SoUTH SIoUx CITy 	291
Cite as 16 Neb. App. 288

reviewing a summary judgment, an appellate court views the
evidence in a light most favorable to the party against whom
the judgment is granted and gives such party the benefit of all
reasonable inferences deducible from the evidence. Id.
ANAlySIS
[3] Villanueva assigns that the trial court erred in grant‑
ing summary judgment in favor of the City on the ground
that he failed to comply with the notice requirements of the
Tort Claims Act, specifically § 13‑905. The Tort Claims Act
is the exclusive means by which a tort claim may be main‑
tained against a political subdivision or its employees. Jessen
v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Keller v.
Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003). In the instant
case, it is undisputed that the City is a political subdivision
subject to the Tort Claims Act.
[4] While not a jurisdictional prerequisite, the filing or pre‑
sentment 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; Keller v. Tavarone,
supra. Section 13‑920(1) 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 or personal injury to or the death of any
person caused by any negligent or wrongful act or omis‑
sion of the employee while acting in the scope of his or her
office or employment . . . unless a claim has been submit-
ted in writing to the governing body of the political subdi-
vision within one year after such claim accrued . . . .
(emphasis supplied.)
Villanueva’s claim for negligence accrued on February 25,
2002. Under § 13‑920(1), Villanueva was required to sub‑
mit a written claim to the appropriate political subdivision by
February 25, 2003. He argues that his April 15, 2002, letter and
his January 7, 2003, letter were such a claim.
[5] The written claim required by the Tort Claims Act noti‑
fies 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
292 	16 NebRASkA APPellATe RePoRTS

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.
[6,7] The necessary content of a written claim is addressed in
§ 13‑905, which requires that all claims shall be addressed “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.” The notice requirements
for a claim filed pursuant to the Tort Claims Act are liberally
construed so that one with a meritorious claim may not be
denied relief as the result of some technical noncompliance
with the formal prescriptions of the act. Chicago Lumber Co.
v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988).
Therefore, substantial compliance with the statutory provi‑
sions pertaining to a claim’s content supplies the requisite and
sufficient notice to a political subdivision in accordance with
§ 13‑905, formerly Neb. Rev. Stat. § 23‑2404 (Reissue 1983),
when the lack of compliance has caused no prejudice to the
political subdivision. Chicago Lumber Co. v. School Dist. No.
71, supra.
In concluding that the content of Villanueva’s two letters,
taken together or separately, was insufficient to satisfy the
notice requirements of § 13‑905, the trial court specifically
found that the letters do not make a proper demand of the
relief sought to be recovered. The trial court relied on Jessen
v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003), in mak‑
ing this finding. 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.’” Id. 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
VIllANUeVA v. CITy oF SoUTH SIoUx CITy 	293
Cite as 16 Neb. App. 288

§ 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 Jessen court cited two other cases with approval in which
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. The
court first referenced Peterson v. Gering Irr. Dist., 219 Neb. 281,
363 N.W.2d 145 (1985), a case in which the claim failed to meet
the “demand” requirement. The purported claim in Peterson
notified the political subdivision that it “‘failed to deliver water
by reason of negligence or omission of duties and responsi‑
bilities of the [political subdivision]’” and that the plaintiffs
would hold it liable for “‘whatever damages may result as a
result of failure to deliver water.’” Id. at 283‑84, 363 N.W.2d
at 147 (emphasis in original). The Peterson court noted that the
purported claim did not state the amount of damage or loss sus‑
tained by the plaintiffs, nor did it allege that such damage or loss
had occurred. The court found that the purported claim did not
meet the Tort Claims Act’s requirements because “it made no
demand against the [political subdivision]; rather, it only alerted
the district to the possibility of a claim.” Peterson v. Gering Irr.
Dist., 219 Neb. at 284, 363 N.W.2d at 147.
The court in Jessen v. Malhotra, supra, also cited with
approval West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420
N.W.2d 291 (1988), as a case in which the claim “passed statu‑
tory muster.” In West Omaha Inv., the plaintiff sent a letter to
a political subdivision stating that pursuant to the Tort Claims
Act “‘claim is made against [the political subdivision] for
the property loss suffered’” by plaintiff as a result of a fire.
The letter alleged that the fire loss was caused in part by the
political subdivision’s negligence—specifically in its failing to
furnish the water with which to extinguish the fire. 227 Neb. at
787‑88, 420 N.W.2d at 294. In considering whether the letter
met the Tort Claims Act’s requirements, the West Omaha Inv.
294 	16 NebRASkA APPellATe RePoRTS

court determined that the court in Peterson v. Gering Irr. Dist.,
supra, was mostly concerned that the plaintiffs make an actual
demand upon the defendant. It noted that the Peterson court
emphasized that the questionable language in the plaintiff’s
claim was “‘whatever damages may result.’” 227 Neb. at 789,
420 N.W.2d at 294. The Supreme Court found that the letter in
West Omaha Inv. stated that property loss had occurred and that
the defendant was responsible and thus, that the letter satisfied
the Tort Claims Act’s requirements. 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, 429 N.W.2d
at 295.
In determining whether the two letters in the present case
satisfy the requirements of § 13‑905, we also look to Keating
v. Wiese, 1 Neb. App. 865, 510 N.W.2d 433 (1993). In Keating,
the plaintiff’s attorney sent a letter to a political subdivision
notifying it that the attorney was representing the plaintiff in
connection with damages sustained when a city bus struck the
plaintiff’s car. The letter further stated: “We are not making a
formal claim at this time, simply because it is impossible to
determine the extent of [the plaintiff’s] damages.” 1 Neb. App. at
867, 510 N.W.2d at 436. The letter also requested a response by
the political subdivision’s insurance claims adjuster. This court
took Peterson v. Gering Irr. Dist., supra, and West Omaha Inv.
v. S.I.D. No. 48, supra, into account in determining whether the
plaintiff’s letter in Keating met the requirements of § 13‑905.
We concluded that the plaintiff’s letter in Keating notified the
political subdivision that the plaintiff had sustained damages
as a result of a collision with a city bus and held that the letter
substantially complied with the requirements of the Tort Claims
Act. We stated that the political subdivision knew of its possible
liability for the recent accident and that the political subdivision
was given the opportunity to investigate and obtain information
about the accident. We further stated that the political subdivi‑
sion had the opportunity to decide whether to pay the plaintiff’s
demand or to defend the litigation predicated on the claim.
VIllANUeVA v. CITy oF SoUTH SIoUx CITy 	295
Cite as 16 Neb. App. 288

Having considered the previously discussed case law, we
determine that the instant case is comparable to West Omaha
Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988),
and Keating v. Wiese, supra. In both of these cases, the claims
satisfied the requirements of § 13‑905 because they stated that
the plaintiffs had sustained damages as a result of a negligent
act by the respective political subdivision. In contrast, the pur‑
ported claims in Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d
586 (2003), and Peterson v. Gering Irr. Dist., 219 Neb. 281, 363
N.W.2d 145 (1985), did not allege that any damage or loss had
occurred. In the present case, the April 15, 2002, letter states
that Villanueva suffered personal injuries as a result of the
City’s negligence. The letter also sets forth the date, location,
and circumstances of the event which gave rise to the claim. It
further states that the letter serves as notice to the City under
the Tort Claims Act and asks that the attorney responsible for
handling the “claim” contact Villanueva’s attorney. Thus, we
conclude that the content of the April 15, 2002, letter alone
substantially complies with the requirements of § 13‑905. As
we concluded in Keating v. Wiese, supra, the letter made the
City aware of its possible liability for the recent accident, and
the City was given the opportunity to investigate and obtain
information about the accident. The City had the opportunity
to decide whether to pay Villanueva’s demand or to defend the
litigation predicated on the claim. No assertion is made that the
City was in any way prejudiced by the claimed omissions.
We note that given the foregoing analysis, the question of
whether a proper claim has been made under the Tort Claims
Act is a recurring one. Clearly more care in drafting such claims
would eliminate the necessity of litigating the issue.
CoNClUSIoN
We conclude that Villanueva’s April 15, 2002, letter substan‑
tially complies with the notice requirements of the Tort Claims
Act and, therefore, that the trial court erred in granting summary
judgment in favor of the City and in overruling Villanueva’s
motion for partial summary judgment. We reverse the judgment
of the trial court sustaining the City’s motion for summary
296 	16 NebRASkA APPellATe RePoRTS

judgment and remand the cause to the trial court with direction
to sustain Villanueva’s motion for partial summary judgment.
reverSed and remanded For
Further proCeedingS.
VIllANUeVA v. CITy oF SoUTH SIoUx CITy 	297
Cite as 16 Neb. App. 288