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Neb. appeals court says Columbus owes homeowners

Margery a. Beck, Associated Press

OMAHA, Neb. (AP) -- The city of Columbus is responsible for sewer backups during a 2004 rainstorm that damaged several residents' basements, a three-judge panel of the Nebraska Court of Appeals said Tuesday.

The appeals panel reversed, in part, a lower court's dismissal of the residents' 2005 lawsuit.

The lawsuit was filed by James and Jamie Henderson and included 15 other homeowners as plaintiffs who sought a total of more than $125,000 in damages, plus legal and court costs. They claimed a city worker who restarted pumps at a sewage lift station during a downpour caused the sewage backup that flooded their basements with "vile, malodorous water and human waste."

Platte County District Judge Robert Steinke rejected the homeowners' claim that the city was responsible for restarting the pumps after the storm on July 9, 2004, in which more than 4 inches of rain fell in about two hours.

The appeals panel upheld the lower court's dismissal of a negligence claim, but reversed the lower court's dismissal based on "inverse condemnation," a legal term in Nebraska's constitution that requires just compensation for private property taken or damaged for a public use.

The lower court had found the city worker's activation of the two pumps, "caused the already overloaded downstream system to back up" into homeowners' basements. But because the homeowners did not prove the city's actions were negligent or the sole cause of the sewer system's overload, the lower court dismissed plaintiffs' inverse condemnation claim.

The appeals panel said Tuesday that the lower court overreached. It is not necessary, the appeals panel said, for homeowners to prove that the city was in some way negligent in an inverse condemnation claim, only that their private property was damaged for a public purpose.

"In these circumstances, it is unfair that the Hendersons and the assignors alone bear this public burden of a malfunction in the city's sanitary sewage system," the appeals panel wrote.

The appeals court determined that "you don't consider whether the city is negligent or not," said the homeowners' attorney, George Moyer Jr. of Madison. "You only consider whether an appliance of the city's — in this case, the sewer system — caused the damage."

The appeals panel sent the case back to the lower court to decide how much the city should pay. The appeals panel also noted that three of the homeowners' claims are in question, and that the lower court should decide whether they should remain in the lawsuit.

An attorney for the city was out of town and could not immediately return a message left Tuesday by The Associated Press.

The city could ask the full appeals court to reconsider the case.