Village of Hallam v. L.G. Barcus & Sons

• A.M.’s equal protection challenges are meritless.
• The challenged statutes do not violate the special legisla-
tion clause.
• A.M.’s separation of powers argument is without merit.
• The challenged statutes are not bills of attainder.
• Because the challenged statutes do not inflict punishment,
they do not violate the Ex Post Facto or Double Jeopardy
Clauses.
• Section 83-174.01 is not unconstitutionally vague.
• The evidentiary issues present require remand.
• On remand, the Board must determine if A.M. was com-
pelled to make the incriminating statements.
• The Board must also ensure that the facts underlying the
experts’ opinions are sufficiently reliable.
• And the Board must prohibit the experts from introducing
the underlying facts through their testimony because such a
practice violates A.M.’s right to confrontation.
• We have considered A.M.’s other assignments of error and
conclude that none of those issues warrant discussion.
We reverse, and remand for further proceedings consistent
with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
the village of hallam , a political subdivision
of the state of nebRaska , appellee , v.
l.g. baRcus & sons , inc., a kansas
coRpoRation, appellant.
798 N.W.2d 109
Filed May 13, 2011. 	No. S-10-406.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
516 	281 NEBrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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3. Statutes: Appeal and Error. Statutory interpretation presents a question of law.
When reviewing questions of law, an appellate court resolves the questions inde-
pendently of the conclusions reached by the trial court.
4. Statutes: Legislature: Intent: Appeal and Error. Statutory language is to be
given its plain and ordinary meaning, and an appellate court’s duty in discerning
the meaning of a statute is to determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language of the statute consid-
ered in its plain, ordinary, and popular sense.
5. ____: ____: ____: ____. When possible, an appellate court determines the legis-
lative intent from the language of the statute itself.
6. Rules of Evidence: Expert Witnesses. An expert’s opinion is ordinarily admis-
sible under Neb. rev. Stat. § 27-702 (reissue 2008) if the witness (1) quali-
fies as an expert, (2) has an opinion that will assist the trier of fact, (3) states
his or her opinion, and (4) is prepared to disclose the basis of that opinion on
cross-examination.
7. Trial: Expert Witnesses. It is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to give his opinion
about an issue in question.
8. Summary Judgment: Proof. A prima facie case for summary judgment is shown
by producing enough evidence to demonstrate that the movant is entitled to a
judgment in its favor if the evidence were uncontroverted at trial.
9. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, the
burden to produce evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
Appeal from the District Court for Lancaster County: RobeRt
R. otte, Judge. Affirmed.
William H. Selde, of Sodoro, Daly & Sodoro, P.C., for
appellant.
Neal E. Stenberg, of Stenberg Law Office, and Steven J.
reisdorff, of The Law Office, P.C., for appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack,
and milleR-leRman, JJ.
stephan, J.
L.G. Barcus & Sons, Inc. (Barcus), was held liable to the
Village of Hallam under the One-Call Notification System
Act (the Act)1 for damage to Hallam’s sanitary sewer system
1 Neb. rev. Stat. §§ 76-2301 to 76-2330 (reissue 2009).
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	517
Cite as 281 Neb. 516

caused by an excavation. The Act establishes a one-call noti-
fication center (one-call center) so that excavators can learn
of any underground facilities in the area where excavation is
planned.2 Among the issues raised by Barcus’ appeal are (1)
whether an operator of an underground facility which has not
complied with the provisions of the Act has a remedy against
an excavator for an alleged violation of the Act and (2) whether
the excavator may delegate its duties under the Act to another
party and thereby avoid liability.
I. FACTS AND PrOCEDurAL BACkGrOuND
Hallam is a village incorporated under Nebraska law. It
operates a sanitary sewer system within its boundaries. On May
22, 2004, a tornado destroyed more than 150 homes and busi-
nesses in Hallam, including grain storage facilities owned by
Farmers Cooperative, Inc. (Farmers).
After the tornado and before Farmers began rebuilding its
facilities, Hallam hired a company to inspect its sanitary sewer
system and determine whether it had been damaged by the
tornado. The company lowered a video camera into manholes
throughout the village and produced videotapes showing the
interior of all sewer lines owned and operated by the vil-
lage. The inspection was completed on June 26, 2004. Tyler
L. Hevlin, a civil engineer, reviewed the inspection video
and advised Hallam that the portion of its sewer which lay
beneath the Farmers property was unobstructed and not in need
of repair.
In June or July 2004, Farmers entered into separate contracts
with McPherson Concrete Storage Systems, Inc. (McPherson),
and Frisbie Construction Co., Inc. (Frisbie), to construct two
cylindrical concrete grain storage bins and related structures.
under the contracts, McPherson was responsible for the con-
crete construction and Frisbie was responsible for the “mill-
wright work,” which included metal legs and other structures
attached and adjacent to the concrete structures. Hallam issued
a building permit for the construction of the bins.
2 See §§ 76-2302(1) and 76-2316.
518 	281 NEBrASkA rEPOrTS

In mid-June 2004, a firm identified in the record as “Terracon”
conducted soil testing for the project through a series of soil
“borings.” The president and chief executive officer of Farmers
testified that Terracon notified the one-call center before per-
forming the borings, and Frisbie’s operations manager believed
that the people conducting the soil boring would have called
the one-call center, but he had no personal knowledge on this
point. The record provides no other information regarding com-
munication between Terracon and the one-call center.
McPherson entered into a subcontract with Barcus to install
an “AugerPile” foundation for the grain bins. The subcontract
stated that Barcus’ prices did not include the cost of
location, removal, protection or relocation of any under-
ground or overhead obstructions or utilities which inter-
fere with our work . . . special protection of existing
structures, utilities or equipment . . . . Our sole responsi-
bility for pile location will be to accurately spot the auger
on the stakes that you provide and drill the pile using our
normal care.
An AugerPile foundation is constructed using an auger to
drill a hole in the ground, and then the hole is filled with
grout as the auger is withdrawn. The grout used in this proc-
ess is a substance similar to concrete but does not contain
rock. The “augered cast pile[s]” (AugerPiles) were separately
numbered so that Barcus could maintain a record of its work.
On the Farmers project, Barcus was to install a total of 204
AugerPiles, each 16 inches in diameter. Two hundred of the
AugerPiles were to serve as the foundation for the grain bins,
and four were to be the foundation for a “bulkweigher,” which
is used to load grain into railcars. Frisbie was to construct
the bulkweigher for Farmers at an unspecified future date.
Barcus’ role in the project was limited to installation of the
AugerPile foundation.
Frisbie’s work on the project included construction of a pit
in which grain would be dumped and then elevated for loading
at the top of the bins. The pit was to be located between and
slightly to the east of the bins. Frisbie’s operations manager
called the one-call center on July 1, 2004, to provide notifi-
cation that Frisbie would be constructing the pit. He advised
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	519
Cite as 281 Neb. 516

the one-call center that the maximum depth of the excavation
would be 14 feet. Frisbie began work on the pit during the
first week of July. No underground facilities were marked in
the vicinity of the pit when excavation commenced. No sewer
pipe was encountered during the excavation for the pit, which
was completed in less than 1 day. The concrete floor of the pit
was completed approximately 3 days after excavation began.
Frisbie did no other excavation on the project.
Barcus arrived at the jobsite on July 20, 2004, and began
installing AugerPiles on July 23. McPherson marked the loca-
tions for the 200 AugerPiles which would form the foundations
of the bins, and a Frisbie employee marked the locations for
the four AugerPiles which would form the foundation for the
bulkweigher. Barcus employees did not notify the one-call cen-
ter before commencing installation of the AugerPiles, because
they did not consider such notification to be within the scope
of their work. rather, they considered such notification to be
the responsibility of the general contractor, which in this case
was McPherson. The Barcus foreman testified that he had “no
idea” whether any other contractor notified the one-call cen-
ter, but he observed no markings indicating the existence of
underground facilities in the area where the AugerPiles were
to be driven.
Barcus installed the four AugerPiles for the bulkweigher on
July 30, 2004. Each of the four AugerPiles was 72 feet long
and placed in a hole drilled to a depth of 73 feet, so that the
top of each of the AugerPiles was beneath the surface of the
ground. Barcus completed its work on the project and left
the jobsite on August 10. Barcus’ foreman recalled that one of
the AugerPiles on the Farmers project required more grout than
usual, but he testified that this was not uncommon and could
have been caused by several factors.
On or about August 23, 2004, Hallam began receiving
reports that sewage was backing up into homes and busi-
nesses located west of the Farmers site. An attempt to clear
the sewer obstruction with water jet flushing was unsuccessful,
so a camera inspection was undertaken. The inspection video
revealed that the blockage was caused by concrete and broken
sewer pipe.
520 	281 NEBrASkA rEPOrTS

Hallam then consulted Hevlin’s firm, an engineering and
architectural consulting group, to develop a plan for repairing
or replacing the damaged portion of the sewer line. Hevlin
determined and advised Hallam that because of the nature and
extent of the blockage, the sewer line could not be repaired and
would need to be rerouted. Hallam accepted Hevlin’s advice
and rerouted the sewer system based upon plans and specifica-
tions developed by Hevlin. Hallam incurred fair and reasonable
costs in the amount of $96,007.74 as a consequence of the
damage to its sanitary sewer.
Hallam filed suit to recover these costs against Farmers,
McPherson, 	Barcus, 	and 	Frisbie 	in 	the 	district 	court 	for
Lancaster County. It alleged that all four of the defendants
were negligent and that Barcus and McPherson were strictly
liable under the Act because they failed to notify the one-call
center before installing the AugerPile foundation. In its answer,
Barcus denied any liability on its part and affirmatively alleged
that Hallam was contributorily negligent in several respects,
including failure to comply with provisions of the Act that
require operators of underground facilities to furnish certain
information to the one-call center.
Hallam retained Hevlin as an expert witness regarding the
cause of the obstruction of its sanitary sewer in 2004. Based
upon excavations undertaken in 2008, Hevlin determined the
location of the four AugerPiles installed by Barcus as the foun-
dation for the bulkweigher, the location of the pit constructed
by Frisbie, and the location of the sewer line as it existed in
2004. Drawings prepared under Hevlin’s supervision show two
of the AugerPiles and one corner of the pit near the underlying
sewer line. Based upon this information and his review of dis-
covery documents from the litigation, Hevlin opined to “a rea-
sonable degree of certainty as a professional engineer” that the
auger used by Barcus during the installation of the AugerPiles
damaged the sewer line and introduced grout which caused
the obstruction. Hevlin further opined, to the same degree of
certainty, that Frisbie’s construction of the pit did not cause
the damage, because the elevation of the bottom of the pit was
higher than the sewer line.
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	521
Cite as 281 Neb. 516

Hallam moved for summary judgment on its strict liability
claim against Barcus. The motion was supported by Hevlin’s
affidavit stating the opinions summarized above and other
affidavits, depositions, and documents produced during dis-
covery. The district court sustained the motion and entered
judgment against Barcus in the amount of $96,007.74. The
court determined that Barcus was an “excavator” as defined
by the Act and that its installation of the AugerPiles consti-
tuted an “excavation” as defined by the Act.3 The court further
determined that Hallam was an “operator” of an underground
facility as defined by the Act.4 The court reasoned that the fact
that Hallam had not become a member of and had not par-
ticipated in the one-call center was not a defense to its strict
liability claim based upon Barcus’ failure to call the one-call
center before commencing excavation.5 The court concluded
that Barcus, not McPherson or Frisbie, was obligated to give
the notice required by the Act; that it was “clear . . . that the
excavation engaged in by Barcus resulted in damage to . . .
Hallam’s sewer line”; and that there was no factual dispute
as to the amount of the damages. The district court directed
entry of a final judgment pursuant to Neb. rev. Stat. § 25-1315
(reissue 2008).
The Nebraska Court of Appeals dismissed Barcus’ appeal
from the district court’s order, and this court denied a petition
for further review. Following remand, the action was dismissed
as to Farmers, McPherson, and Frisbie pursuant to a stipula-
tion. Subsequently, the district court determined that Hallam’s
damages were subject to pro tanto reduction in the amount of
$30,000, and it entered final judgment against Barcus in the
amount of $66,007.74. Barcus appealed, and we granted its
petition to bypass.
II. ASSIGNMENTS OF ErrOr
Barcus assigns, summarized and restated, that the district
court erred in (1) its construction and application of the Act,
3 See §§ 76-2308 and 76-2309.
4 See § 76-2313.
5 See § 76-2324.
522 	281 NEBrASkA rEPOrTS

(2) not concluding that Hallam was barred as a matter of
law from asserting a remedy through its own noncompliance
with the Act, (3) receiving Hevlin’s affidavit without sufficient
foundation, and (4) concluding that there was no genuine issue
of material fact regarding the proximate cause of Hallam’s
claimed damages.
III. STANDArD OF rEVIEW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.6 In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
the judgment was granted, giving that party the benefit of all
reasonable inferences deducible from the evidence.7
[3] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court resolves the
questions independently of the conclusions reached by the
trial court.8
A trial court’s ruling in receiving or excluding an expert’s
opinion which is otherwise relevant will be reversed only when
there has been an abuse of discretion.9
IV. ANALYSIS
1. statutoRy liability
(a) Effect of Hallam’s Noncompliance
With the Act
[4,5] Barcus argues that Hallam had no remedy under the
Act as a matter of law, because it had not complied with the
provisions of the Act applicable to operators of underground
6 Tolbert v. Jamison, ante p. 206, 794 N.W.2d 877 (2011).
7 Id.
8 Shepherd v. Chambers, ante p. 57, 794 N.W.2d 678 (2011); State v. State
Code Agencies Teachers Assn., 280 Neb. 459, 788 N.W.2d 238 (2010).
9 Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438 (2010); Liberty Dev. Corp.
v. Metropolitan Util. Dist., 276 Neb. 23, 751 N.W.2d 608 (2008).
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	523
Cite as 281 Neb. 516

facilities. Familiar general principles guide our analysis of this
issue. Statutory language is to be given its plain and ordinary
meaning, and our duty in discerning the meaning of a statute
is to determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the stat-
ute considered in its plain, ordinary, and popular sense.10 When
possible, an appellate court determines the legislative intent
from the language of the statute itself.11
The Act states that it was intended “to establish a means by
which excavators may notify operators of underground facili-
ties in an excavation area so that operators have the opportunity
to identify and locate the underground facilities prior to exca-
vation.”12 The stated purpose of the Act is “to aid the public by
preventing injury to persons and damage to property and the
interruption of utility services resulting from accidents caused
by damage to underground facilities.”13
The Act defines “excavator” as “a person who engages in
excavation in this state.”14 “Excavation” is defined in the Act
as “any activity in which earth, rock, or other material in or on
the ground is moved or otherwise displaced by means of tools,
equipment, or explosives and shall include . . . drilling [and]
augering.”15 It is undisputed that Barcus used an auger to drill
the holes in the ground in which the AugerPiles were placed.
Barcus was an “excavator” within the meaning of the Act.
The Act defines “underground facility” as “any item of
personal property buried or placed below ground for use in
connection with the storage or conveyance of . . . sewage, . . .
10 See, Ricks v. Vap, 280 Neb. 130, 784 N.W.2d 432 (2010); Concrete Indus.
v. Nebraska Dept. of Rev., 277 Neb. 897, 766 N.W.2d 103 (2009).
11 Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., ante p. 93, 798
N.W.2d 823 (2011).
12 § 76-2302(1). Accord Hughes v. Omaha Pub. Power Dist., 274 Neb. 13,
735 N.W.2d 793 (2007).
13 § 76-2302(2). Accord, Hughes v. Omaha Pub. Power Dist., supra note 12;
Galaxy Telecom v. J.P. Theisen & Sons, 265 Neb. 270, 656 N.W.2d 444
(2003).
14 § 76-2309.
15 § 76-2308.
524 	281 NEBrASkA rEPOrTS

including . . . sewers.”16 An “operator” is “a person who man-
ages or controls the functions of an underground facility.”17 It
is beyond question that Hallam’s sanitary sewer system was
an underground facility and that the village was its operator
as those terms are defined by the Act. The Act requires that
“[o]perators of underground facilities shall become members
of and participate in the statewide one-call . . . center”18 and
provide information regarding the location of underground
facilities.19 There is no evidence that Hallam complied with
these provisions.
Persons are required by the Act to give notice to the one-call
center at least 2 full business days but no more than 10 busi-
ness days before commencing any excavation, and such notice
“shall be deemed notice to all operators.”20 This triggers a proc-
ess by which the one-call center informs operators of under-
ground facilities in the vicinity of the proposed excavation, and
the operators in turn advise the excavator of the approximate
location of the facilities by the use of marking devices.21 It is
undisputed that Barcus did not notify the one-call center before
commencing excavation.
The liability provisions of the Act pertinent to this case are
set forth in the first two sentences of § 76-2324:
An excavator who fails to give notice of an excavation
pursuant to section 76-2321 and who damages an under-
ground facility by such excavation shall be strictly liable
to the operator of the underground facility for the cost
of all repairs to the underground facility. An excavator
who gives the notice and who damages an underground
facility shall be liable to the operator for the cost of all
repairs to the underground facility unless the damage to
16 § 76-2317.
17 § 76-2313.
18 § 76-2318.
19 See § 76-2320.
20 § 76-2321(1).
21 See §§ 76-2322 and 76-2323.
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	525
Cite as 281 Neb. 516

the underground facility was due to the operator’s failure
to comply with section 76-2323.
Barcus argues that Hallam cannot be considered an “opera-
tor” within the meaning of these provisions, because it had not
complied with the provisions of the Act requiring operators of
underground facilities to “become members of and participate
in the statewide one-call . . . center.”22 But we find no lan-
guage in § 76-2324 or the statutory definition of “operator”
in § 76-2313 which could be read in the manner that Barcus
urges. We agree with the reasoning of the district court that
Hallam’s right to recover under § 76-2324 depends on its status
as an “operator” of an underground facility, not on whether it
has taken steps to become a “member” of the one-call center.
The uncontroverted facts are that Barcus was an “excavator”
and that Hallam was an “operator” as defined by the Act, but
neither complied with its substantive provisions. The question
of law before us is how the liability provisions of § 76-2324
should be applied in this circumstance.
The answer is apparent from the plain language of § 76-2324.
The first sentence unambiguously states that an excavator who
does not give notice of an excavation as required by § 76-2321
is strictly liable for damage to an underground facility caused
by the excavation. The second sentence states that an excava-
tor who gives the required notice of an excavation may be
liable for damage to an underground facility, unless the dam-
age was due to the operator’s failure to identify and mark
the underground facility. Thus, the statute provides a defense
based upon the facility operator’s failure to comply with
§ 76-2323. reading these two sentences together, it is clear
that an operator’s noncompliance with § 76-2323 is a defense
available to an excavator who gives the required notification,
but not to the excavator who fails to give notice required by
§ 76-2321.
This construction is entirely consistent with the Legislature’s
intent “to establish a means by which excavators may notify
operators of underground facilities in an excavation area so
that operators have the opportunity to identify and locate
22 § 76-2318.
526 	281 NEBrASkA rEPOrTS

the 	underground 	facilities 	prior 	to 	excavation.”23 Had 	the
Legislature intended to excuse noncomplying excavators from
liability based upon the failure of a facility operator to identify
and mark the underground facilities, it could have placed lan-
guage in the first sentence of § 76-2324 similar to that used in
the second sentence. The fact that it did not do so leads to only
one possible conclusion: The Legislature intended to hold an
excavator who does not give the required notification strictly
liable for any damage it causes to an underground facility with-
out regard to the conduct of the facility operator.
(b) Delegation of Duty
Barcus also argues that in accordance with “the custom and
practice of the construction industry,” it complied with the
Act by delegating its duty to notify the one-call center of its
proposed excavation to others.24 In their depositions, the vice
president of Barcus’ pile division and Barcus’ foreman on the
Farmers project testified that under their understanding of their
standard subcontract, it was the responsibility of the general
contractor, in this case McPherson, to notify the one-call center
regarding the installation of piles. In a subsequent affidavit, the
Barcus foreman took a more expansive position, stating that
according to the custom and practice of the industry, the obli-
gation fell on the “general contractor or general contractors,”
and that Barcus relied “on its co-worker Frisbie . . . to perform
all necessary notification, permitting, or contact with Local
or State authorities.” From this, Barcus argues in its brief that
Barcus and Frisbie acted “in a joint fashion to meet all require-
ments of the One-Call statute.”25
Barcus provides no authority for its premise that a party can
avoid a statutory duty by delegating it to another in accord-
ance with the custom and practice of an industry. But even
if the premise is sound, an issue we do not decide, it is clear
from the record that Frisbie’s actions did not satisfy Barcus’
duty under the Act. Frisbie clearly was not acting on behalf
23 § 76-2302(1).
24 Brief for appellant at 23.
25 Id. at 14.
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	527
Cite as 281 Neb. 516

of Barcus when it notified the one-call center of its plans to
excavate for the pit. Barcus contracted with McPherson; there
was no contract between McPherson and Frisbie or Barcus and
Frisbie. Frisbie’s operations manager called the one-call center
on July 1, 2004, more than 10 days before Barcus commenced
installation of the AugerPiles. This call would not have been
timely notice of the AugerPile excavation even if otherwise
sufficient.26 A review of the recording of the conversation
and the written record made by the one-call center shows that
Frisbie gave notice of its proposed excavation for the 14-foot-
deep pit, but made no mention of Barcus or the work which
it was to perform under its subcontract with McPherson.
And Frisbie’s operations manager testified unequivocally that
he never contacted the one-call center on behalf of Barcus
or McPherson.
The Act places the duty to notify the one-call center squarely
on the “excavator” whose work could damage an underground
facility. Frisbie was the excavator of the pit, and Barcus was
the excavator with respect to the AugerPiles. Barcus cannot
rely on Frisbie’s compliance with the Act to excuse its own
noncompliance.
2. expeRt opinion
At the summary judgment hearing, Hallam offered the affi-
davit of Hevlin, an engineer who had provided professional
services to Hallam since 1998. Barcus objected to paragraph 21
of the affidavit as an opinion for which there was insufficient
foundation. In that paragraph, Hevlin stated:
It is my opinion, based on a reasonable degree of cer-
tainty as a professional engineer, that the auger used
during the construction of the concrete auger piles by
[Barcus] did damage to the sewer line . . . and, when
installing the concrete (also referred to as “grout”) for the
pile, concrete was introduced into the sewer line and cre-
ated the blockage.
The district court took the objection under advisement.
Although we find no subsequent ruling on the objection, the
26 See, § 76-2321(1); Galaxy Telecom v. J.P. Theisen & Sons, supra note 13.
528 	281 NEBrASkA rEPOrTS

district court referred to the substance of the opinion in its
order, noting that the affidavit included “detailed statements
regarding the information which [Hevlin] relied on in forming
his opinion, and the basis for his opinion.” We therefore assume
that the district court overruled the objection and received the
opinion, and we turn to Barcus’ argument that the court abused
its discretion in doing so.
[6,7] An expert’s opinion is ordinarily admissible under Neb.
rev. Stat. § 27-702 (reissue 2008) if the witness (1) qualifies
as an expert, (2) has an opinion that will assist the trier of fact,
(3) states his or her opinion, and (4) is prepared to disclose the
basis of that opinion on cross-examination.27 It is within the
trial court’s discretion to determine whether there is sufficient
foundation for an expert witness to give his opinion about an
issue in question.28
Hevlin is a professional civil engineer licensed in Nebraska
and several other states. He had provided engineering services
to Hallam since 1998 and provided technical assistance to
Hallam to locate obstructions in the sewer and to determine
the nature and extent of damage to the sewer system as a con-
sequence of the 2004 tornado. His opinion regarding causation
was stated with “a reasonable degree of certainty as a profes-
sional engineer” and was based upon his professional training
and experience, his knowledge of Hallam’s sewer system, his
review of documents produced in discovery by Barcus and
McPherson, his review of depositions taken in this case, and
his own efforts to determine the precise location of various
structures in relation to the sanitary sewer.
Barcus did not assert a Daubert/Schafersman29 objection in
the district court.30 Its foundational objection was based upon
an assertion that Hevlin lacked “any special knowledge about
27 Smith v. Colorado Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610
(2005).
28 Liberty Dev. Corp. v. Metropolitan Util. Dist., supra note 9.
29 See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 u.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
30 See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	529
Cite as 281 Neb. 516

grout or hydraulic concrete” and that he did not have “any spe-
cial training in auger bore, pile formation or construction prac-
tices.” Hevlin stated in his affidavit that after he was retained
by the village to determine the cause of the obstruction in the
sewer system, he supervised excavations to determine the pre-
cise locations of the AugerPiles installed by Barcus and the
pit constructed by Frisbie in relation to the sewer system. He
learned the depth of the AugerPiles from discovery documents
which were provided to him. Thus, Hevlin undertook what was
essentially a series of measurements to determine the relative
locations of the AugerPiles, the pit, and the sewer line, from
which he concluded that the sewer line was damaged during
the installation of the AugerPiles, not during the construction
of the pit. This methodology did not require any specialized
knowledge regarding the technology of installing AugerPiles
other than what was set forth in the documents produced by
Barcus and others, which documents Hevlin reviewed in formu-
lating his opinion. There was sufficient foundation for Hevlin
to express a causation opinion based upon such measurements,
and the district court did not abuse its discretion in overruling
Barcus’ foundational objection.
3. existence of genuine issue
of mateRial fact
[8,9] Barcus contends that there was a genuine issue of
material fact as to the cause of the obstruction. A prima facie
case for summary judgment is shown by producing enough evi-
dence to demonstrate that the movant is entitled to a judgment
in its favor if the evidence were uncontroverted at trial.31 After
the movant for summary judgment makes a prima facie case
by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion.32
31 Tolbert v. Jamison, supra note 6.
32 Id.
530 	281 NEBrASkA rEPOrTS

The evidence reflects that the damage to the sanitary sewer
occurred sometime between June 26, 2004, when the inspection
revealed that the sewer in the vicinity of the Farmers property
was unobstructed, and August 23, when a similar inspection
disclosed the obstruction. Terracon conducted its soil borings
between June 15 and 17, more than 1 week before the first
inspection disclosed that the sewer was unobstructed. Frisbie’s
excavation of the pit occurred during the first week of July. Its
employee testified that the sewer line was not encountered dur-
ing the excavation, and there is evidence that the pit excavation
did not reach the depth of the sewer line. Barcus conducted the
AugerPile excavations between July 23 and August 10. The
sewer obstruction was discovered on August 23. These facts
together with Hevlin’s expert opinion are sufficient to create
a reasonable inference that the Barcus excavation struck and
damaged the sewer. There is no basis for a reasonable inference
that some other instrumentality caused the damage.
Barcus argues that an inference can be drawn that Frisbie
was negligent in marking the location of the AugerPiles for
the bulkweigher. Assuming that is so, it does not negate the
evidence showing that Barcus’ excavation damaged the sewer
line, which is all that is necessary to establish liability under
the Act where the excavator has not given the required notifica-
tion prior to commencing excavation. Barcus also argues that
it could not have caused the damage to the sewer, based upon
the distance between the AugerPile excavations and the point
at which the obstruction was eventually discovered. But even if
we accept Barcus’ calculations as to this distance, there is no
evidence regarding its significance to the issue of causation.
On this record, we agree with the district court that there is no
genuine issue of material fact as to the cause of the damage to
the sewer line.
V. CONCLuSION
For the reasons discussed, we find no merit in any of the
assignments of error and therefore affirm the judgment of the
district court.
affiRmed.
WRight, J., not participating.
VILLAGE OF HALLAM v. L.G. BArCuS & SONS 	531
Cite as 281 Neb. 516