March 16, 2015 – A state appeals court has ruled that the City of Milwaukee is not immune from a lawsuit by city residents severely injured in a gas leak explosion.
In 2009, Mary Oden and her eight-year-old son were inside their home when it exploded. A gas leak caused the blast, and Oden sued the city, claiming police and firefighters were negligent in failing to evacuate residents near the gas leak location.
A nearby resident first called 911 to report the smell of gas around 2:14 a.m. Another 911 call came four minutes later. A gas leak was confirmed at 2:29 a.m.
Responders notified nearby residents but did not order them to evacuate until after the explosion, which occurred at 3:37 a.m. when the gas tripped the Odens’ water heater pilot light.
The city, co-defendants with WE Energies, moved for summary judgment, arguing the city was immune from suit under Wis. Stat. section 893.80(4).
This governmental immunity statute says lawsuits cannot be commenced against governmental actors, including police and fire departments, for intentional torts “done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.” In general, government actors are immune from “discretionary” decsionmaking.
The city argued that the immunity statute applied because responders used their discretion – they do not have a “ministerial duty” to evacuate homes when nearby gas leaks are identified because no law or regulation directs them to take that action.
The circuit court granted summary judgment to the city. But in Oden v. City of Milwaukee, 2014AP130 (March 3, 2015), a three-judge panel for the District I Court of Appeals reversed, concluding that first responders did have a “ministerial duty.”
The panel noted that under Milwaukee’s ordinances, the city adopted the Fire Code of the National Fire Prevention Association, which directs energy providers to cooperate with fire and police departments to receive special training on gas leak situations.
Accordingly, Milwaukee firefighters were required to take gas leak trainings conducted by WE Energies. And the WE Energies’ First Responder Handbook directed first responders to evacuate the corresponding area when gas leaks are detected.
“We conclude based on this undisputed evidence that the City implemented its legislative actions by delegating responsibility to WE Energies for training first responders on how to respond to natural gas emergencies,” wrote Judge Joan Kessler.
“The handbook is the only written protocol available in this record describing how city employees are to handle natural gas emergencies, and was effectively adopted by the City when it delegated specialized training authority to WE Energies.”
The panel also ruled that the gas leak presented a known and present danger, an exception to immunity when a danger creates an imperative duty to act.
“We conclude, based on the undisputed facts, that this was a known and compelling danger which imposed a ministerial duty on the City to act,” Judge Kessler wrote. “Whether the City was negligent in the manner in which it performed its ministerial duty is a question for the jury.”