Estate of McElwee v. Omaha Transit Authority

664 N.W.2d 461, 266 Neb. 317, 2003 Neb. LEXIS 114
CourtNebraska Supreme Court
DecidedJuly 11, 2003
DocketS-02-692
StatusPublished
Cited by77 cases

This text of 664 N.W.2d 461 (Estate of McElwee v. Omaha Transit Authority) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of McElwee v. Omaha Transit Authority, 664 N.W.2d 461, 266 Neb. 317, 2003 Neb. LEXIS 114 (Neb. 2003).

Opinions

Per Curiam.

NATURE OF CASE

The Omaha Transit Authority, doing business as Metro Area Transit, and Kathryn Waltrip (collectively MAT) appeal from a judgment entered against them pursuant to the Political Subdivisions Tort Claims Act (the Act), Neb. Rev. Stat. § 13-901 et seq. (Reissue 1997). The dispositive issue presented in this appeal is whether the plaintiff, the estate of Lee Anna McElwee, presented its claim to MAT in compliance with the notice provisions of the Act.

BACKGROUND

On November 13, 1998, McElwee was struck by a MAT bus operated by Waltrip in the parking lot of the Crossroads Mall in Omaha, Nebraska. McElwee, who was 70 years old at the time of the accident, is since deceased from unrelated causes. McElwee was struck as she crossed the street from a MAT bus station, constructed in the parking lot, to the east end of the mall. The bus station was next to a T-shaped intersection formed by two mall access roads and the mall itself. The witnesses disputed whether McElwee was in the crosswalk between the bus station and the mall at the time of the collision.

McElwee was taken to the hospital, where surgery was performed for a ruptured spleen and a bleeding pancreas. McElwee was hospitalized for 6 days. After trial, the district court awarded the plaintiff damages in the sum of $140,000, which included $26,217.51 in special damages.

[320]*320MAT alleged in its answer, and argued throughout the proceedings, that the plaintiff had failed to comply with the notice provisions of the Act. Section 13-905 requires that

[a]ll tort claims under the Political Subdivisions Tort Claims Act . . . shall be filed with the clerk, secretary, or other official whose duty it is to maintain the official records of the political subdivision, or the governing body of a political subdivision may provide that such claims may be filed with the duly constituted law department of such subdivision.

In this case, notice of the plaintiff’s claim against MAT was directly addressed to Pat Arps, the MAT director of administration and human resources. The evidence establishes that Arps is responsible for overseeing claims for personal injury and property damage made against MAT and for any resulting litigation, including the investigation of such claims. However, the evidence does not contain any policy or job description specifically conferring upon Aips any of the duties set forth in § 13-905.

Arps was notified of the accident on the day it occurred and opened an investigation. Soon after, Arps received a letter from the plaintiff’s attorney notifying Arps of the plaintiff’s representation and requesting claim forms “[i]f you have any official claim forms to be filled out.” Arps did not provide any such forms, as MAT does not have preprinted claim forms, and did not acknowledge receipt of the letter. The plaintiff’s attorney sent another letter enclosing a notice of claim for the incident. Arps did not respond, although the letter requested acknowledgment. Subsequently, the plaintiff’s attorney withdrew the claim. Arps placed both the purported claim and withdrawal of claim in her files, and discussed them with no one.

Arps testified that the MAT employee authorized to receive claims under the Act is the executive director of the board of directors, as the “official whose duty it is to maintain the official records.” See § 13-905. The plaintiff presented evidence that Arps has, on some past instances, acknowledged claims pursuant to the Act. In those cases, MAT did not raise a defense of insufficient notice.

The district court stated that Arps “has not been designated to perform the duties described in Section 13-905.” Nonetheless, [321]*321the district court concluded that “Plaintiff has met its’ [sic] burden of proof in establishing by a preponderance of the evidence that Plaintiff has complied with the filing and notice provisions incumbent upon claimants under the Political Subdivisions Tort Claims Act.”

ASSIGNMENTS OF ERROR

MAT assigns, consolidated and restated, that the district court erred in (1) finding the plaintiff complied with the notice provisions of the Act, (2) considering the plaintiff’s evidence of MAT’s acceptance and acknowledgment of claims filed in other cases, (3) finding that the proximate cause of the collision was Waltrip’s failure to yield to McElwee in the crosswalk, (4) not ascribing contributory negligence to McElwee, (5) finding that McElwee was in the crosswalk when the collision occurred, (6) failing to find that McElwee assumed the risk of the accident, (7) finding that Waltrip’s view to the area east of the intersection was partially obscured by another bus, and (8) awarding excessive damages.

STANDARD OF REVIEW

In actions brought pursuant to the Act, the findings of a trial court will not be disturbed on appeal unless they are clearly wrong. Mondelli v. Kendel Homes Corp., 262 Neb. 263, 631 N.W.2d 846 (2001). Where the relevant facts are undisputed, however, whether the notice requirements of the Act have been satisfied is a question of law, on which an appellate court reaches a conclusion independent of the lower court’s ruling. See, Wilder v. Grant Cty. Sch. Dist. No. 0001, 265 Neb. 742, 658 N.W.2d 923 (2003) (requirements of statute are question of law); Springer v. Bohling, 259 Neb. 71, 607 N.W.2d 836 (2000) (question of law determined independent of lower court’s ruling); Woollen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999) (where facts are undisputed, whether liability precluded by sovereign immunity is question of law).

A claim of equitable estoppel rests in equity, and in an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the trial court. Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003).

[322]*322ANALYSIS

We first address whether the plaintiff complied with the notice requirements of the Act. As previously noted, claims made under the Act are to be filed with “the clerk, secretary, or other official whose duty it is to maintain the official records of the political subdivision,” or, if designated, the law department of the political subdivision. § 13-905. 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, 262 Neb. 2, 628 N.W.2d 222 (2001). If a political subdivision, by an appropriately specific allegation in a demurrer or answer, raises the issue of the plaintiff’s noncompliance with the notice requirement of § 13-905 of the Act, the plaintiff has the burden to show compliance with the notice requirement. Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990).

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Estate of McElwee v. Omaha Transit Authority
664 N.W.2d 461 (Nebraska Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
664 N.W.2d 461, 266 Neb. 317, 2003 Neb. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-mcelwee-v-omaha-transit-authority-neb-2003.