An Omaha man should get his day in court over injuries suffered when a sinkhole opened up beneath his garbage truck, the Nebraska Supreme Court ruled Friday.
The case concerned a May 28, 2019, incident when Salvador Garcia was driving his usual route along South 19th Street, between M and N streets, in Omaha. The road suddenly collapsed under him. The garbage truck fell in, and he wound up with shoulder and back injuries.
Garcia then sued the city of Omaha, which responded by arguing it was protected by Nebraska’s sovereign immunity law. The law shields government entities from liability in most cases.
But a Douglas County district judge rejected Omaha’s motion to have the case decided in its favor by summary judgment. On Friday, the state’s high court affirmed that decision and rejected the city’s appeal.
The Supreme Court said Garcia had presented evidence the incident fell into one of the exemptions to sovereign immunity. The court said summary judgment was not appropriate when there were issues of fact to be decided by the court.
The issue in this case concerned whether Omaha officials had been notified of a “spot or localized defect†in the street. Under state law, if they had gotten such notice with enough time to have repaired the problem but failed to do so, they would not be protected from liability.
According to Friday’s ruling, Garcia had presented an affidavit from Tonya Ward, who had lived on 19th Street for about 14 years. Ward said she had called the mayor’s hotline in 2017, 2018 and 2019 to complain about the condition of the street, including cracks, holes and erosion that could be seen under the street.
The high court noted that, in her affidavit, Ward said the street was still in “bad condition having only been patched where this incident happened.â€
The city said it had a log of street maintenance complaints dating back to 2007 but no record of Ward’s complaints. The city also argued that Garcia had driven the same route for more than a year and had not reported any problems on 19th Street.
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However, city records did show an earlier work order on the same block, prompted by a report from a plumbing truck operator who noticed “undermining†and a “void†under a 3-foot-by-5-foot hole where the plumber had been working.
“The evidence creates a genuine issue of material fact whether the city received actual or constructive notice of the spot or localized defect in a public thoroughfare. If the city had received notice within a reasonable time to allow it to make repairs prior to the incident, it is not immunized†under the law.
Jon Rehm, who represented Garcia in the appeal, said he was happy that his client would get a chance to present his case and show why the city should be held accountable.
“The sad fact is that sovereign immunity in general can shield the government from liability†in situations in which a private business would be held liable, he said.
Jeffrey Bloom, the senior city attorney who represented Omaha, said officials were reviewing the decision. But he expressed confidence the city would be able to present a strong argument in court against liability.
The State of Nebraska filed a friend of the court brief supporting Omaha in the case. Nebraska has separate but similar sovereign immunity laws for the state and for local government subdivisions.
Sinkholes pop up regularly around Omaha. One developed in late May along 33rd Street just south of the Cass Street intersection in midtown Omaha after a sewer line broke under the road.
Five years ago, a teenager had to be rescued from a 12- to 15-foot deep sinkhole at 10625 Calhoun Road after the curb where she was sitting cracked and the ground gave way. The collapse was attributed to heavy rainfall in the area.