Mace-Main v. City of Omaha

conviction could properly be used for enhancement purposes,
and as a result, we affirm the judgment of the district court,
which affirmed the conviction and sentence imposed by the
county court.
A ffirmed.
A nnette i. mAce -mAin, AppellAnt, v. city of omAhA,
A nebrAskA municipAl corporAtion And politicAl
subdivision, And metropolitAn utilities district
of omAhA, A nebrAskA politicAl subdivision
And municipAl corporAtion, Appellees.
773 N.W.2d 152
Filed September 1, 2009. 	No. A-08-1026.
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal and
Error. A district court’s grant of a motion to dismiss for failure to state a claim
under Neb. Ct. R. Pldg. § 6-1112(b)(6) is reviewed de novo, accepting all the
allegations in the complaint as true and drawing all reasonable inferences in favor
of the nonmoving party.
2. Pleadings: Appeal and Error. Whether a complaint states a cause of action is a
question of law, to be reviewed on appeal de novo.
3. Pleadings: Proof: Dismissal and Nonsuit. A motion seeking dismissal of a com-
plaint for failure to state a cause of action should be granted only if it appears
beyond doubt that the plaintiff can prove no set of facts which would entitle him
or her to relief.
4. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
5. 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.
6. 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.
7. 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.
8. Limitations of Actions: Negligence: Torts. It has generally been stated that in
a negligence action, a statute of limitations begins to run as soon as the cause
mACe-mAIN v. CITy oF omAhA 	857
Cite as 17 Neb. App. 857
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

of action accrues, and an action in tort accrues as soon as the act or omis-
sion occurs.
9. Limitations of Actions: Negligence. It has been determined that the discovery
rule applies in certain categories of cases. The rationale behind the discovery rule
is that in certain categories of cases, the injury is not obvious and the individual
is wholly unaware that he or she has suffered an injury or damage.
10. ____: ____. When the discovery rule is applicable, the statute of limitations does
not begin to run until the potential plaintiff discovers, or with reasonable dili-
gence should have discovered, the injury.
11. Political Subdivisions Tort Claims Act: Limitations of Actions. The discov-
ery rule is applicable to the statute of limitations provisions in Neb. Rev. Stat.
§ 13-919(1) (Reissue 2007).
12. Limitations of Actions. The discovery rule does not operate to toll the statute of
limitations until a potential plaintiff discovers the negligent party.
13. Political Subdivisions Tort Claims Act. Neb. Rev. Stat. § 13-919(3) (Reissue
2007) does not extend the time for filing a claim under the Political Subdivisions
Tort Claims Act against a different or additional political subdivision after one
political subdivision denies the claim.
Appeal from the District Court for Douglas County: W. mArk
A shford, Judge. Affirmed.
marvin o. Kieckhafer, of Smith Peterson Law Firm, L.L.P.,
for appellant.
Alan m. Thelen, Deputy omaha City Attorney, for appellee
City of omaha.
Susan e. Prazan for appellee metropolitan Utilities District
of omaha.
inbody, Chief Judge, and cArlson and moore, Judges.
cArlson, Judge.
INTRoDUCTIoN
Annette I. mace-main brought a negligence action under
Nebraska’s Political Subdivisions Tort Claims Act, Neb. Rev.
Stat. § 13-901 et seq. (Reissue 2007) (the Act) against the City
of omaha (City) and metropolitan Utilities District of omaha
(mUD), seeking damages for injuries she suffered in a fall. The
district court for Douglas County granted mUD’s motion to
dismiss and granted the City’s motion for summary judgment.
mace-main appeals the granting of both motions. Based on the
reasons that follow, we affirm.
858 	17 NeBRASKA APPeLLATe RePoRTS

BACKGRoUND
on February 2, 2007, mace-main filed a complaint in the
district court against the City and mUD pursuant to the Act.
The complaint indicated that proper notice of mace-main’s
claim was provided to the City and mUD and that both denied
her claim. The complaint alleged that on August 6, 2005,
mace-main was walking on a public sidewalk owned by the
City and maintained by the City “and/or” mUD, located along
harney Street, and stepped on a defective manhole cover which
suddenly and without warning shifted and gave way as she
stepped on it, causing her to fall as her foot and leg descended
forcefully into the manhole, resulting in severe and painful
injuries to mace-main. The complaint alleged that the direct
and proximate cause of the fall and resulting injuries was the
negligence of the City and mUD. The complaint stated that
as a result of the fall, mace-main suffered severe and painful
bodily injuries which included a broken toe, a dislocated shoul-
der, and injuries to her elbow, knee, neck, and arms, as well as
other bumps, bruises, and abrasions.
on February 12, 2007, mUD filed a motion to dismiss,
contending that mace-main’s complaint failed to state a claim
upon which relief could be granted because mace-main had
failed to make a claim to mUD within the 1-year period man-
dated by § 13-919(1). on march 16, the trial court granted
mUD’s motion to dismiss.
The City filed an amended answer to mace-main’s com-
plaint on January 18, 2008. In its amended answer, the City
admitted mace-main’s compliance with the notice provisions
of the Act and asserted numerous affirmative defenses. The
City subsequently filed a motion for summary judgment, on the
ground that it did not have any duty in regard to the manhole
cover in question because the manhole cover and the under-
lying watermeter pit belonged to mUD and it was mUD’s duty
to repair and maintain the manhole cover. A hearing was held
on march 12. The evidence presented at the hearing showed
as follows:
There are many different types of manholes in the City
belonging to many different entities, including the City and
mUD. mUD is the sole and exclusive provider of water service
mACe-mAIN v. CITy oF omAhA 	859
Cite as 17 Neb. App. 857

to private properties in omaha. The City does not provide any
water and does not participate in the provision of water services
in any respect. When the City receives a complaint regarding
a condition in a sidewalk or a manhole, it sends an employee
out to inspect the location of the complaint. If the complaint
is related to mUD’s water distribution, the City immediately
notifies an mUD dispatcher of the condition. mUD then takes
action to remedy the problem. The City takes no further action
after notifying mUD.
on August 7, 2005, the day after mace-main’s accident,
James Brandt, a sewer maintenance foreman for the City,
received a call to go inspect a complaint of a defective man-
hole cover at or near a specific address on harney Street.
Brandt went to the site and found that the manhole cover
was a cover for an mUD watermeter pit. A watermeter pit is
a small brick-lined vault in the ground containing a water-
meter that registers the accumulating waterflow provided to
the property. Watermeter pits are located along water service
lines that serve adjacent properties and are mostly found in
older parts of omaha. mUD checks the watermeter readings
on a regular basis to determine how much to bill the adjacent
property owner for water provided. Watermeter pits are cov-
ered with metal covers that resemble other manhole covers. If
a watermeter pit requires repair, mUD typically informs the
adjacent property owner that it needs to make the repair. If
the property owner fails to make the repair, mUD performs
the repair and bills the property owner for the costs. The City
does not own, maintain, or repair watermeter pits serving pri-
vate properties.
Brandt found that the ring surrounding the manhole cover
at issue was loose and had broken away from its foundation.
While at the site, Brandt reported the watermeter pit to an
mUD dispatcher and ordered barricades to be placed at the
location as a matter of public safety. he testified that whenever
he goes to the location of a complaint and there is a problem
that needs followup, he secures the location if it presents a
danger to someone coming upon it, whether it is the City’s
problem to fix or not. In the instant case, Brandt placed cones
on the manhole cover until the barricades arrived.
860 	17 NeBRASKA APPeLLATe RePoRTS

on August 8, 2005, mUD sent an employee out to inves-
tigate the manhole cover at issue and identify the work to
be done. on August 24, an mUD utility worker explored the
watermeter pit and determined that it was abandoned. he then
removed the ring of the watermeter pit, capped the inactive
water service, and filled the hole to grade so that the sidewalk
could be repoured over the area where the manhole cover and
watermeter pit had been. Pursuant to City ordinances and the
usual practice between the City and mUD, the City poured the
new concrete at the location and billed mUD for the cost of
restoring the sidewalk.
Following the hearing, the trial court entered an order on
July 17, 2008, granting the City’s motion for summary judg-
ment and dismissing mace-main’s complaint with prejudice.
The trial court found that there was no evidence that the City
had the obligation or the duty of repairing, servicing, or main-
taining watermeter pits or their manhole covers. It found that
it was mUD’s watermeter pit and manhole cover and, thus,
that it was mUD’s responsibility to maintain the manhole
cover which caused mace-main’s accident. It further found
that although the sidewalk surrounding the manhole cover is
the City’s responsibility to maintain, the obligation does not
extend to the manhole cover itself. It concluded that there is no
compelling evidence that the sidewalk was the proximate cause
of any injury mace-main suffered.
on July 24, 2008, mace-main filed a motion to alter or
amend the court’s July 17 order, granting the City’s motion for
summary judgment. on November 13, the trial court denied
mace-main’s motion.
ASSIGNmeNTS oF eRRoR
mace-main assigns that the trial court erred in granting
mUD’s motion to dismiss and erred in granting the City’s
motion for summary judgment.
STANDARD oF ReVIeW
[1-3] A district court’s grant of a motion to dismiss for
failure to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6)
is reviewed de novo, accepting all the allegations in the com-
plaint as true and drawing all reasonable inferences in favor of
mACe-mAIN v. CITy oF omAhA 	861
Cite as 17 Neb. App. 857

the nonmoving party. Tolbert v. Omaha Housing Authority, 16
Neb. App. 618, 747 N.W.2d 452 (2008). Whether a complaint
states a cause of action is a question of law, to be reviewed on
appeal de novo. Id. A motion seeking dismissal of a complaint
for failure to state a cause of action should be granted only if it
appears beyond doubt that the plaintiff can prove no set of facts
which would entitle him or her to relief. Id.
[4] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. McNeel v. Union Pacific RR.
Co., 276 Neb. 143, 753 N.W.2d 321 (2008).
[5] 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. Id.
ANALySIS
MUD’s Motion to Dismiss.
[6,7] mace-main first assigns that the trial court erred in
granting mUD’s motion to dismiss, finding that the com-
plaint fails to state a claim upon which relief can be granted
because mace-main failed to comply with § 13-919(1). The
Act is the exclusive means by which a tort claim may be main-
tained against a political subdivision or its employees. Keller v.
Tavarone, 265 Neb. 236, 655 N.W.2d 899 (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 Act. Keller v. Tavarone,
supra. Section 13-919(1) requires that notice of a claim be
made to the political subdivision within 1 year after the claim
accrued: “every claim against a political subdivision permitted
under the . . . Act shall be forever barred unless within one
year after such claim accrued the claim is made in writing to
the governing body.”
mace-main’s complaint states that she was injured during
an incident that occurred on August 6, 2005. The complaint
and its attached exhibits show that mace-main sent notice
862 	17 NeBRASKA APPeLLATe RePoRTS

of her claim to the City on August 1, 2006. The City denied
mace-main’s claim in a letter dated August 30, 2006, advis-
ing her that the manhole cover involved in the fall and injury
belonged to mUD and was not the property of the City. on
December 29, mace-main sent mUD notice of her claim, more
than 16 months after the incident occurred. mUD responded
by a letter dated January 3, 2007, denying mace-main’s claim
on the basis that it had not been made in writing to mUD
within 1 year after the claim accrued. It is clear from the face
of the complaint and attached exhibits that mace-main did not
give mUD notice of her claim within 1 year of the date she
was injured.
however, mace-main argues that her claim did not accrue
on the date her injury occurred. Rather, mace-main contends
that pursuant to the discovery rule, her claim did not accrue
until she discovered that mUD may be the entity responsible
for her injuries. She alleges that this occurred on August 30,
2006, when the City denied her claim and implicated mUD.
She contends that before receiving the letter from the City
stating that the manhole cover belonged to mUD, she had no
reason to believe that mUD was involved in the matter.
[8-11] It has generally been stated that in a negligence
action, a statute of limitations begins to run as soon as the
cause of action accrues, and an action in tort accrues as soon
as the act or omission occurs. See Shlien v. Board of Regents,
263 Neb. 465, 640 N.W.2d 643 (2002). It has been determined,
however, that the discovery rule applies in certain categories of
cases. The rationale behind the discovery rule is that in certain
categories of cases, the injury is not obvious and the individual
is wholly unaware that he or she has suffered an injury or
damage. Id. Thus, when the discovery rule is applicable, the
statute of limitations does not begin to run until the potential
plaintiff discovers, or with reasonable diligence should have
discovered, the injury. Id. The discovery rule is applicable
to the statute of limitations provisions in § 13-919(1). See
Polinski v. Omaha Pub. Power Dist., 251 Neb. 14, 554 N.W.2d
636 (1996).
[12] The discovery rule applies when an individual’s injury
is not obvious and the individual is wholly unaware that he
mACe-mAIN v. CITy oF omAhA 	863
Cite as 17 Neb. App. 857

or she has suffered an injury or damage. Such is not the case
here. mace-main’s accident occurred on August 6, 2005, and
she was aware of her injuries at that time. The discovery rule
does not operate to toll the statute of limitations until a poten-
tial plaintiff discovers the negligent party. Accordingly, because
mace-main’s injuries occurred on August 6, 2005, that is the
date on which her claim accrued and the 1-year notice require-
ment set forth in § 13-919(1) started. Thus, the notice of claim
sent to mUD on December 29, 2006, did not comply with
§ 13-919(1).
mace-main also argues that the trial court erred in grant-
ing mUD’s motion to dismiss because the court failed to
consider § 13-919(3), which mace-main alleges extends her
time to give mUD notice of her claim. Subsection (3) of
§ 13-919 provides:
If a claim is made or a suit is begun under the [A]ct and
a determination is made by the political subdivision or
by the court that the claim or suit is not permitted under
the [A]ct for any other reason than lapse of time, the
time to make a claim or to begin a suit under any other
applicable law of this state shall be extended for a period
of six months from the date of the court order making
such determination or the date of mailing of notice to the
claimant of such determination by the political subdivi-
sion if the time to make the claim or begin the suit under
such other law would otherwise expire before the end of
such period.
(emphasis supplied.) mace-main contends that when the City
alleged or determined that mace-main’s claim is not permitted
against it under the Act because the manhole cover was not
the City’s property, mace-main should have been afforded the
benefit of the 6-month extension of time under § 13-919(3)
to make a claim against mUD. She alleges that the 6-month
extension would begin on August 30, 2006, the day the City
denied her claim for a reason other than lapse of time, and that
her notice to mUD was within that 6-month period.
[13] We determine that § 13-919(3) is inapplicable to the
instant case. The subsection extends the time to file claims
brought “under any other applicable law of the state” against
864 	17 NeBRASKA APPeLLATe RePoRTS

a political subdivision after it is determined that a claim is
not permitted under the Act against that political subdivi-
sion. After the City denied mace-main’s complaint under the
Act, mace-main brought her claim against mUD, a different
political subdivision, under the Act and not “under any other
applicable law of this state.” Section 13-919(3) does not extend
the time for filing a claim under the Act against a different or
additional political subdivision after one political subdivision
denies the claim, as mace-main suggests.
Because mace-main failed to give mUD written notice of
her claim within 1 year after her claim accrued as required by
§ 13-919(1), her complaint fails to state a claim upon which
relief can be granted. The trial court did not err in granting
mUD’s motion to dismiss.
City’s Motion for Summary Judgment.
mace-main next assigns that the trial court erred in granting
the City’s motion for summary judgment, finding that there
was no evidence that the City had any duty to maintain and
repair the manhole cover at issue and that such duty belonged
to mUD. The evidence is undisputed that the manhole cover
that caused mace-main’s accident was covering a watermeter
pit and that a watermeter pit is part of the water distribution
system in omaha. The City does not participate in the water
distribution system in any respect. Rather, it is mUD that
is responsible for the water distribution system. Neb. Rev.
Stat. § 14-2113 (Reissue 2007) grants mUD “general charge,
supervision, and control of all matters pertaining to the natural
gas supply and the water supply of the district for domes-
tic, mechanical, public, and fire purposes.” Accordingly, it is
mUD’s duty to maintain the watermeter pit and the manhole
cover that caused mace-main’s injuries. There was no evidence
that the City had any duty to repair, service, or maintain any
element of the water distribution system, including the water-
meter pit and manhole cover at issue.
After mace-main’s accident, the City referred the matter to
mUD upon determining that the manhole cover belonged to
mUD. mUD demonstrated its ownership and control over the
watermeter pit and manhole cover by responding to the City’s
mACe-mAIN v. CITy oF omAhA 	865
Cite as 17 Neb. App. 857

referral, determining that the watermeter pit was abandoned,
filling in the hole, and paying to have the concrete poured
over the area. The duty to maintain the watermeter pit and its
manhole cover falls on mUD. Although the City took precau-
tions to protect the public after it determined the manhole
cover was defective and it contacted mUD, that in and of itself
does not show that it was the City’s duty to maintain the man-
hole cover.
mace-main argues that there are genuine issues of material
fact as to whether the City is liable for her injuries based on
the City’s duty to keep its streets and sidewalks in a reasonably
safe condition. mace-main contends that because the manhole
cover was located on the sidewalk where she was walking, the
City is liable for her injuries. The City may have a duty to
maintain its sidewalks, but such duty does not extend to the
manhole cover itself. This is apparent based on statutory law
which authorizes mUD to place facilities within City streets,
but also provides that liability arising out of operation of the
water system lies solely with mUD, and not with the City.
Specifically, § 14-2113 grants mUD the authority to enter upon
and utilize streets, alleys, and public grounds. Neb. Rev. Stat.
§ 14-814 (Reissue 2007) states that the City is not to be liable
“for any tort or act of negligence of the metropolitan utilities
district . . . which may in any way result from, grow out of, or
be connected with the maintenance, management, control, or
operation of any water system.”
Further, there is no evidence that the sidewalk contributed in
any way to mace-main’s fall and injuries. There is no evidence
that a defective or dangerous condition existed in the sidewalk.
mace-main’s complaint and testimony only target the manhole
cover as causing her fall, and not the sidewalk. mace-main’s
complaint alleges that she slipped and fell on what she char-
acterized as a “defective manhole cover.” mace-main testified
that the accident happened when she stepped on the manhole
cover and it moved, causing her to fall. She did not plead or
testify that any problem with the sidewalk caused her injuries.
Rather, it was the defective manhole cover on the watermeter
pit that caused the fall, a manhole cover which the City has no
duty to maintain.
866 	17 NeBRASKA APPeLLATe RePoRTS

In summary, the evidence shows that the watermeter pit
and its manhole cover at issue belonged to mUD; that it was
mUD’s duty to maintain, repair, and service them; and that the
City had no duty or responsibility in regard to the watermeter
pit and its manhole cover. Accordingly, the trial court did not
err in granting summary judgment in favor of the City.
CoNCLUSIoN
For the reasons stated above, we conclude that the trial
court did not err in granting mUD’s motion to dismiss and did
not err in granting the City’s motion for summary judgment.
Accordingly, the judgments of the trial court granting mUD’s
motion to dismiss and granting the City’s motion for summary
judgment are affirmed.
A ffirmed.
in re interest of louis s. et Al .,
children under 18 yeArs of Age .
stAte of nebrAskA, Appellee And cross -Appellee , v.
chAd s., sr ., AppellAnt And cross -Appellee , And
cArmelA f., Appellee And cross -AppellAnt.
774 N.W.2d 416
Filed September 1, 2009. 	No. A-09-105.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
3. Judgments: Appeal and Error. In reviewing questions of law, an appellate court
reaches conclusions independent of the lower court’s ruling.
4. Indian Child Welfare Act: Parental Rights: Jurisdiction. According to Neb.
Rev. Stat. § 43-1504(2) (Reissue 2008), in any state court proceeding for the
foster care placement of, or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child’s tribe, the court,
in the absence of good cause to the contrary, shall transfer such proceeding to the
jurisdiction of the tribe, absent objection by either parent, upon the petition of
either parent or the Indian custodian or the Indian child’s tribe, except that such
transfer shall be subject to declination by the tribal court of such tribe.
IN Re INTeReST oF LoUIS S. eT AL. 	867
Cite as 17 Neb. App. 867