A family suffered injuries when their truck fell into a hole created during a rainstorm that washed away the soil surrounding a recently installed culvert. They brought action against Boone County (County), claiming that culverts in the area were inadequate to drain water accumulated during a storm of reasonably expected severity. The District Court, Boone County, entered a judgment in favor of the County. The Supreme Court of Nebraska, finding no evidence that the County breached its duty to construct and maintain highways and bridges in a reasonably safe condition, affirmed the trial court's decision.

THE CRASH

On September 3, 1989, Ronald and Pamela Scholl were driving with their three children in their pickup truck near Elgin, Nebraska. During a rainstorm and around 11:00 p.m., the Scholls left Highway 14 and turned onto West Raeville Road (a rural, gravel road). When the Scholls drove over a 72-inch-diameter culvert that Boone County had installed earlier in the year, their truck dropped into a hole. Either the soil collapsed beneath the weight of the truck, or the rain had already washed the soil away.

The County had installed the culvert during April and May, along with another one about 200 yards away, to replace two "cross-overs" (bridges less than 20 feet long that were not required to be inventoried or regularly inspected).

TRIAL COURT DECISION

In the District Court, Boone County, the Scholls brought action against Boone County pursuant to the Nebraska Political Subdivisions Tort Claims Act.

In testimony, the Boone County highway superintendent described the Dickens formula he used to decide the necessary culvert size. This formula determines the amount of water that flows through a drainage area during a 4-inch, 24-hour rain. The formula considers the size of the drainage area, in acres, and the contour and slope of the land. The highway superintendent originally recommended one 84-inch culvert. At the suggestion of a road foreman, the County decided to install both a 78-inch culvert and a 48-inch culvert to increase the amount of drainage.

The Scholls' expert witness countered that using the Dickens formula produced a negligent design and was inappropriate.

A registered civil engineer specializing in hydrology testified for the County that the Dickens formula would produce a design for a 2- to 5-year storm, "which by itself might be inadequate." However, neither the Dickens formula, nor the "modified rational formula" used by the Scholls' expert considered any "storage" values for the water that was expected to pass through the culverts. The storage value is "a backup of water due to the terrain in the area in front of the culvert which alters the result of both the Dickens formula and the modified rational formula."

The engineer testified that "routing" formulas allow for such water storage. He applied a routing formula, the HEC-1 formula sometimes used by the Army Corps of Engineers, to determine that the culverts in question were designed for a 10- to 25-year storm. His testimony stated that the County's culvert design was "valid and appropriate according to accepted engineering standards."

Testimony from a meteorologist showed that the storm on September 3, 1989 produced three to five inches of rain in the West Raeville Road culvert area within three to five hours, with the most intense rainfall occurring between 8:00 p.m. and 11:00 p.m. Other witnesses corroborated these statistics. In the engineer's opinion, the storm could have been classified "anywhere between a 10- to 100-year storm."

Although the trial court overruled the County's motion for directed verdict, it found for the County as to the issue of liability. The court dismissed all the plaintiffs' petitions, and assigned the costs to the Scholls.

APPEALS COURT DECISION

In their appeal, the Scholls asserted that the trial court erred in these six areas:

In its definition of the duty of care as dictated by the Political Subdivisions Tort Claims Act, the Supreme Court of Nebraska cited Millman v. County of Butler, 244 Neb. 125, 131, 504 N.W.2d 820, 824 (1993), quoting Hendrickson v. City of Kearney, 210 Neb. 8, 312 N.W.2d 677 (1981). The court in that case stated that a county must use "reasonable and ordinary care in the construction, maintenance, and repair of its highways and bridges so that they will be reasonably safe for the traveler using them while he is in the exercise of reasonable and ordinary caution and prudence."

The appeals court further stated that for the Scholls to recover under the tort claims act, they would have to prove four elements of negligence: (1) duty, (2) breach of duty, (3) proximate causation, and (4) damages. (Hill v. City of Lincoln, 249 Neb. 88, 541 N.W.2d 655 (1996) and others.)

The court also noted that a county "is not and should not be considered an insurer of the safety of travelers on its roads." (Christensen v. City of Tekumah, 201 Neb. 344, 268 N.W.2d 93 (1978).)

The evidence established that the September 3, 1989 storm was a "substantial event." The court found no evidence of the County's violation of any statutory standards, regulations, or policies in sizing drainage areas, selecting culvert sizes, or replacing cross-overs with culverts. "Negligence is never presumed," the court pointed out, "and the mere happening of an accident does not prove negligence as a matter of law." (Bourke v. Watts, 223 Neb. 511, 391 N.W.2d 552 (1986).) The court, in addition, could find no support in the trial record that the lower court used a "balancing test" to compare the County's negligent acts to the storm event.

Since the appeals court found no clear error in the trial court's verdict, it affirmed the lower court's decision on June 14, 1996.