Wisconsin Appeals Court Says Milwaukee Not Immune From Gas Leak Lawsuit Posted on April 14, 2015 by Larry Bodine The Wisconsin Court of Appeals revived a lawsuit against the City of Milwaukee, ruling that it had a ministerial duty to evacuate homes after confirming a dangerous gas leak, which resulted in a home explosion. Accordingly, the city was not immune from suit. A ministerial duty is the official duty of a public officer wherein the officer has no room for the exercise of discretion, and the performance being required by direct and positive command of the law. Plaintiff Mary Oden and her child were inside the home where the explosion occurred in 2009. She filed suit against the city of Milwaukee and WE Energies, stating the city negligently failed to evacuate homes on the street, including hers. On appeal, Oden argued summary judgment for the defendants was improper. She argued that the city was not entitled to immunity because there was a clear and present danger and that officers were negligent in evacuating the homes. The city maintained its original argument that it was immune to liability pursuant to a local ordinance, claiming city officers and firefighters had a ministerial duty to evacuate the homes on Oden’s block. Failure to Evacuate During early morning hours, two neighbors called 911 and reported smell of gas, one resident reported the smell seemed to be coming from their basement. Fifteen minutes after the initial call, emergency officials confirmed the gas leak around 2:29 a.m. The Milwaukee Fire and Police Department recorded a “strong odor of gas throughout the block. There was a gas break in the street; WE Energies notified.” Residents were not evacuated until 3:37 a.m. — after Oden’s home exploded. This was nearly an hour after the gas leak was confirmed and recorded by the emergency officials. Further investigation of the neighborhood confirmed there was a complete break of the gas main serving the block of homes which Oden lived.The gas had migrated under frozen soil and seeped into the basement, reaching the pilot light of a basement water heater. At that moment the explosion occurred. Investigators stated that if the outside meters were shut off, the pilot light would not have ignited. No Specialized Training for the Police The one-day training covered the WE Energies’ First Responder’s Handbook and instructed first responders to evacuate the neighboring areas when gas leaks are detected. However, the record did not contain any information that the Milwaukee Police Department ever received the same training provided to the Milwaukee Fire Department. The court concluded the handbook was the only written protocol on how to handle a natural gas emergency. Milwaukee adopted this policy when it delegated to WE Energies training authority based on the handbook. Known and Compelling Danger Exception to Immunity The court ruled that a ministerial duty was imposed once the officers discovered a known and compelling danger in the neighborhood. The known and compelling danger is an exception to government immunity. Due to officers being aware of the known danger, a reasonable jury could determine the members of the fire department were negligent if they failed to follow the procedures and guidelines outlined during training. Although the trial court granted summary judgment, it stated “there is no doubt that the gas leak here was extremely dangerous, more than unsafe.” The case was remanded for a jury decision on whether officials were negligent as to their ministerial duty. This case is Oden v. City of Milwaukee, No. 2014AP130 (Wis. Ct. App. March 3, 2015 ) (pending final publication).
