By MICHELLE ZLOMKE
Chief Managing Editor

    Seven Broken Bow residents wait to hear whether they will get their day in court in a lawsuit against the City of Broken Bow.
    Attorney Jim Duncan requested a new trial Thursday for the owners of five homes in southeast Broken Bow that were damaged by a sewer backup in May 2005.
   
   

     In December, District Court Judge Karin Noakes issued a summary judgment dismissing the cases filed by Gene and LaVonne Oxford, Kent and Cindy Taylor, Erma Grantzinger, Jeff Roach and Crystal Johnson. "The judge sustained the defendant's motion for summary judgment, essentially dismissing the case," Duncan said. "We're asking the judge to change her mind. If we are successful, either she can reverse her judgment or she can order a re-hearing on the issue."
    In five separate suits filed in February 2007, the plaintiffs allege that a sewer lift station in southeast Broken Bow became malfunctioned and caused the sewage backup into their homes on Arrowhead Drive and Buffalo Run Road.

The suit names as defendants City of Broken Bow, City of Broken Bow Nebraska Municipal Utilities District and City of Broken Bow Board of Public Works.
    According to court documents, Noakes' judgment was based partly on Nebraska statute that "prohibits claims based on exercise or performance of, or the failure to perform, a discretionary function or duty on the part of the political subdivision or an employee of the political subdivision."
    That decision followed a November hearing in which Todd McWha, the city's attorney for the case, argued that the case should be dismissed.
    Last week, Duncan requested a new trial for the plaintiffs. He said both the November hearing and Noakes' judgment focused on employee actions.
    He now wants the court to consider the city's failure to comply with Nebraska statutes that require lift stations to be equipped with an alarm system.
    The motion for a new trial also claims the plaintiffs were prevented from a fair trial, the judge's decision was not sustained by sufficient evidence, and that an error of law occurred at the hearing for summary judgment.
    Duncan told the Custer County Chief that evidence provided the court indicates the alarm system was not working correctly. The alarm should have been activated, he said, when the lift station malfunctioned to a mechanical error.
    "As the water and sewage raises in the lift station, that switch kicks on," he said. "It didn't kick on and it didn't pump out the sewage, so it backed up."
    However, Duncan said, that statutory requirement was not presented to the judge at the summary judgment hearing.
    "It wasn't argued at any point prior to this," Noakes said in court Thursday. "I want to allow the plaintiffs their day in court, but I don't know how I'll do that at this point."
    Noakes told the court Thursday that she would take the matter under advisement. Duncan said he expects that decision to be made in about 10 days.
    The plaintiffs are suing for a total of $53,187 for repairs, in addition to reasonable compensation and related fees, according to court documents.