Mercer v. North Central Serv. ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/29/2021 09:08 AM CST
- 224 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224Mark Mercer, individually, et al., appellees, and
Columbia National Insurance Company, a Nebraska
corporation, and Farmers Mutual Insurance Company
of Nebraska, a Nebraska mutual insurance company,
intervenors-appellees, v. North Central Service, Inc.,
a Minnesota corporation, et al., appellees, and
Metropolitan Utilities District, a political
subdivision, appellant.
M’s, Inc., a Nebraska corporation, doing business
as M’s Pub, appellee, and United Fire & Casualty
Company, as subrogee for M’s, Inc., a Nebraska
corporation, intervenor-appellee, v.
Metropolitan Utilities District,
a political subdivision,
appellant.
Columbia National Insurance Company, as subrogee
for Old Omaha Association, appellee, v.
Metropolitan Utilities District, a
political subdivision, appellant.
Nouvelle Eve, Inc., a Nebraska corporation, and
Susanne Keuck, an individual, appellees, and
Truck Insurance Exchange, as subrogee for
Nouvelle Eve, Inc., a Nebraska corporation,
intervenor-appellee, v. Metropolitan
Utilities District, a political
subdivision, appellant.
___ N.W.2d ___
Filed January 22, 2021. Nos. S-20-193, S-20-196, S-20-198, S-20-205.
- 225 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 2241. Political Subdivisions Tort Claims Act: Appeal and Error. Whether
a plaintiff’s negligence claims are precluded by an exception to the
Political Subdivisions Tort Claims Act is a question of law for which
an appellate court has a duty to reach its conclusions independent of the
conclusions reached by the district court.
2. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
3. Political Subdivisions Tort Claims Act. The purpose of the discretion-
ary function exception to the Political Subdivisions Tort Claims Act is
to prevent judicial second-guessing of legislative and administrative
decisions grounded in social, economic, and political policy through the
medium of an action in tort.
4. ____. The discretionary function exception to the Political Subdivisions
Tort Claims Act extends only to basic policy decisions made in gov-
ernmental activity, and not to ministerial activities implementing such
policy decisions. The exception does not extend to the exercise of dis-
cretionary acts at an operational level. Examples of discretionary func-
tions include the initiation of programs and activities, establishment of
plans and schedules, and judgmental decisions within a broad regulatory
framework lacking specific standards.
5. ____. A court engages in a two-step analysis to determine whether
the discretionary function exception to the Political Subdivisions Tort
Claims Act applies. First, the court must consider whether the action is
a matter of choice for the acting employee. If the court concludes that
the challenged conduct involves an element of judgment, it must then
determine whether that judgment is of the kind that the discretionary
function exception was designed to shield.
6. Political Subdivisions Tort Claims Act: Governmental Subdivisions:
Notice: Negligence. When (1) a governmental entity has actual or con-
structive notice of a dangerous condition or hazard caused by or under
the control of the governmental entity and (2) the dangerous condition
or hazard is not readily apparent to persons who are likely to be injured
by the dangerous condition or hazard, the governmental entity has a
nondiscretionary duty to warn of the danger or take other protective
measures that may prevent injury as the result of the dangerous condi-
tion or hazard. In such a situation, a governmental entity’s failure to
warn or take other protective measures is not a planning-level decision
involving a social, economic, or political policy judgment and, there-
fore, does not come within the discretionary function exception of the
Political Subdivisions Tort Claims Act.
- 226 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Michael F. Coyle, Robert W. Futhey, and Daniel J. Gutman,
of Fraser Stryker, P.C., L.L.O., and Mark A. Mendenhall, of
Metropolitan Utilities District, for appellant.
Anne Marie O’Brien and Michael L. Storey, of Lamson,
Dugan & Murray, L.L.P., for appellees Mark Mercer et al.
Matthew B. Reilly and Thomas J. Culhane, of Erickson &
Sederstrom, P.C., L.L.O., for intervenors-appellees Columbia
National Insurance Company and Farmers Mutual Insurance
Company.
Thomas M. White and Amy S. Jorgensen, of White &
Jorgensen, and Richard A. DeWitt and Robert M. Gonderinger,
of Coker, Huck, Kasher, DeWitt, Anderson & Gonderinger,
L.L.C., for appellee M’s, Inc.
Brian T. Bailey, of Nielsen, Zehe & Antas, P.C., for appellee
United Fire & Casualty Company.
Edward F. Pohren and Jerry M. Slusky, of Smith, Slusky,
Pohren & Rogers, L.L.P., for appellees Nouvelle Eve, Inc., and
Susanne Keuck.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
An explosion and fire destroyed part of the Old Market area
in Omaha, Nebraska. Various affected landowners and their
insurers brought suit against a fiber optic contractor, a wire-
less company, and the Metropolitan Utilities District (MUD).
The plaintiffs settled with all defendants except MUD. MUD
sought summary judgment, arguing that it was immune from
suit. The district court found that MUD was not immune
- 227 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224from suit and denied MUD’s motion for summary judgment.
MUD appeals. We affirm.
BACKGROUND
Gas Explosion and Fire.
On January 9, 2016, at 2:50 p.m., an explosion and fire
occurred in the Old Market area of Omaha. The natural gas
explosion occurred in the basement of the Mercer Building,
located at the corner of 11th and Howard Streets and owned
by plaintiffs, Mark Mercer and Vera Mercer, who also resided
in the building. The building’s ground floor housed two busi-
nesses, Nouvelle Eve, Inc., a clothing boutique, and M’s Pub,
a restaurant.
MUD was, at all relevant times, a member of a statewide
one-call notification center (Nebraska One-Call), also known
as Nebraska811. 1 MUD contributed to the costs of Nebraska
One-Call and provided MUD facility location information
when requested. In addition to definitions and requirements
as set out in statute, the Nebraska One-Call board of directors
maintains an excavator manual, which is distributed to exca-
vators intending to excavate in Nebraska. That manual was
entered into evidence. Also offered into evidence was MUD’s
locating manual.
On December 10, 2015, according to evidence offered at
the summary judgment hearing, Chris Sacco, an MUD loca-
tor, responded to a locate request “refresh” ticket made under
Nebraska One-Call by North Central Service, Inc. (NCS), for
the area in front of the Mercer Building. NCS planned to use
horizontal directional drilling (HDD) to bore an underground
path for fiber optic cable. HDD is often referred to as “blind
drilling.” It creates a risk of striking an object below the sur-
face of the ground that is not seen by the drill operator. There
is evidence in the record that natural gas pipe strikes as a result
of HDD are common.
1
See Neb. Rev. Stat. § 76-2301 et seq. (Reissue 2009 & Cum. Supp. 2016).
- 228 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224Sacco spoke with NCS’ foreman and walked the bore path
with him. After walking the path, Sacco used MUD resources
to ascertain where the shutoff valve for the relevant gas line
was located. According to Sacco’s deposition, once he had
determined the coordinates of the gas line in question and
measured out those coordinates, he placed a dot of yellow paint
on the curb in front of M’s Pub marking where the gas line
entered the building.
Sacco testified that he then crossed 11th Street and found
the gas service valve cover, but it was located under a parked
car. Because he could not open the cover, Sacco could not elec-
tronically locate the distribution line. Instead, Sacco visually
lined a traffic cone with the dot he had made in front of M’s
Pub, and he then placed a second dot on the sidewalk in front
of M’s Pub to mark where the gas line was in the bore path.
There is also evidence supporting a finding that Sacco made a
third mark in the street.
In addition to allegedly marking the line with dots, Sacco
found the “stop box” for the gas line into the Mercer Building
that had been abandoned in 2009. The stop box was next to the
yellow dot that Sacco said he placed by the curb in front of M’s
Pub. Based on the research he had just done to find the coordi-
nates of the gas line, Sacco knew that this box was abandoned.
Sacco testified that although he had a responsibility to tell his
supervisor that the box had not been properly abandoned, he
did not do so.
Sacco testified that he used dots and not lines because he
did not want paint to drift onto M’s Pub customers who were
seated outside. Other evidence suggested that at this time of
year, the outdoor seating area was not open, and that thus, in
the words of an owner of M’s Pub, there was “[n]ot a chance”
diners were seated outside.
A report completed by the State Fire Marshal following an
investigation into the fire opined that the dots found on the
sidewalk in front of M’s Pub had not been recently marked
when contrasted with brighter yellow markings across the
street. Evidence about the relative brightness of the blue
- 229 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224paint marking the water lines that were laid by a different
locator working with Sacco on December 10, 2015, was also
offered to shed doubt on Sacco’s assertion that he located and
marked the relevant gas lines on December 10.
On January 4, 2016, Ron Jankowski, a second MUD locator,
was assigned another “refresh” ticket for the sidewalk in front
of the Mercer Building. Jankowski spoke to the NCS foreman,
who informed him that he was fine with the markings in the
Old Market area and that MUD did not need to re-mark the
area. Jankowski completed the remainder of the refresh tickets
and then decided to drive through the Old Market to satisfy
himself that marks for water and gas were painted in front of
the building. Jankowski testified that he drove south down 11th
Street, at between 10 and 15 miles per hour, and saw marks for
water and gas painted in front of M’s Pub, though he did not
see the yellow-marked gas valve cover.
On January 9, 2016, NCS began working just outside the
Mercer Building. According to the record, NCS employees
were aware of a gas line on the east side of 11th Street because
it was marked with long yellow lines. According to the tes-
timony of those involved, the area was searched for yellow
markings, which were seen in the alley and on the east side of
the street. According to deposition testimony, no yellow mark-
ings were found on the west side of 11th Street where the HDD
was to be done in front of the Mercer Building.
While performing HDD, NCS struck the gas line in front of
the Mercer Building. Gas escaped from the ruptured line and
migrated to the basement of the building, where it encountered
an ignition source and exploded. Notification of the fire was
received by the 911 emergency dispatch service at 2:51 p.m.
The Omaha Fire Department (OFD) and MUD were, in turn,
notified. Upon arriving at the fire, an OFD representative
determined that the fire was gas fed and that MUD was needed
to turn off the gas.
Upon receiving notification of the fire, an MUD dis-
patcher radioed Al Kurz, an MUD field services technician,
- 230 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224at 2:53 p.m. Kurz was in the midst of a job and indicated
that he would go to the fire when he was finished. The dis-
patcher took a second call from 911 at 2:55 p.m., when
OFD concluded that gas was involved. The dispatcher updated
Kurz at 2:56 p.m., then notified a senior MUD technician,
Steve Osmera, who indicated he would report to the scene.
Osmera then accessed the location of the gas line into the
Mercer Building.
Having accessed the location and written down the coordi-
nates, Osmera headed to the Old Market. But when he arrived
there at 3:16 p.m., he was immediately summoned to speak
to the OFD chief and left the paper with the coordinates in
his vehicle. Osmera surveyed the scene and determined that
a “grade one leak” had occurred, which is the most serious
type of gas leak. He called dispatch at 3:17 p.m. so that other
MUD personnel could be dispatched. At that time, Osmera was
informed that an MUD foreman with authorization to turn off
gas transmission main lines was on his way.
While walking the scene, Osmera saw a yellow-painted
“stop box” in the sidewalk outside of M’s Pub. A stop box, or
curb box, is an outside shutoff for a service used on a side-
walk. Osmera, believing that this was the valve to shut off gas
service into the Mercer Building, moved to open the box and
turn off the gas. As he sought out tools to do so, he encoun-
tered Kurz.
Kurz had arrived at the scene at 3:21 p.m. His assistant
remained in their vehicle to look up the coordinates of the gas
distribution valve into the Mercer Building. When Osmera saw
Kurz arrive, he asked Kurz to help him turn off the valve he
had located on the sidewalk. Kurz’ assistant followed Osmera
to help. The three eventually got the valve into the off position,
but the flames did not abate. At 3:31 p.m. Osmera notified
dispatch that the valve was turned off but it did not “kill the
flames.” Osmera then began looking on a computer for other
valves for gas lines in the alley, but apparently, he did not look
for other valves on 11th Street.
- 231 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224About 1 hour later, MUD employees were walking around
the area and noticed two “CC box[es]” in the street. A CC
box is similar to a stop box or curb box, except it is made of
heavier material for placement in the street. One CC box was
marked “GAS.” The employees got the attention of Kurz and
an OFD firefighter. Not waiting for MUD tools, the firefighter
used a pick to open the CC box. Kurz was then able to turn
off the gas at 4:26 p.m., about 11⁄2 hours after MUD was first
notified of the fire. At that point, the fire in the stairwell at M’s
Pub was extinguished.
Evidence showed that due to the danger in a fire fed by gas,
OFD was not able to take an offensive position in fighting the
fire until the gas had been turned off. So as MUD sought out
the correct valve, OFD continued in a defensive position with
respect to the fire, attempting to keep it from moving to sur-
rounding buildings.
Procedural History.
Multiple lawsuits were initiated in Douglas County as a
result of the damage caused by this fire. Plaintiffs in those
cases filed suit, and numerous insurance companies intervened,
alleging negligence as to multiple defendants. Due to various
settlements, MUD is the only remaining defendant involved in
these appeals. The plaintiffs’ allegations generally center on
three failures by MUD: (1) failing to properly mark the gas
line, (2) failing to timely shut off the gas at the scene of the
fire, and (3) failing to properly abandon the old gas line outside
the Mercer Building.
MUD filed a motion to dismiss in each case on the ground
that it was immune from suit on the basis of the discretionary
function exception to the Political Subdivisions Tort Claims
Act (PSTCA). 2 That motion was denied by the district court,
which concluded that it was “unable to determine, from
the face of the challenged complaints, whether the alleged
2
Neb. Rev. Stat. § 13-910(2) (Reissue 2012).
- 232 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224negligence involved discretionary policy-level decision-making
or operational-level conduct.” Thereafter, MUD filed several
motions for summary judgment. As relevant to these appeals,
the parties offered evidence with respect to MUD’s claim
of immunity.
Following a hearing, the district court denied MUD’s
motions for summary judgment. As is relevant on appeal, the
district court reasoned that
both the statute and MUD’s own policies provide detailed
instructions for employees on how facilities are to be
located, marked, and documented, thereby eliminating
any discretion.
. . . To the extent MUD argues that the locators exer-
cised their judgment in how and where to mark the gas
line at issue, the Court finds this was a “discretionary
act at an operational level, where there is no room for
policy judgment” to which the discretionary exception
does not apply.
The court continued that “[e]ven if the Court determined that
MUD did have an element of judgment in how its employees
located, marked, [and] documented its facilities, as well as how
it handled abandoned gas lines, the Court finds these actions
are not the kind that the discretionary function was designed
to shield . . . .”
MUD appeals.
ASSIGNMENTS OF ERROR
MUD assigns, in all four appeals, that the district court
erred in denying its motion for summary judgment on the basis
of immunity under the discretionary function exception to
the PSTCA 3.
STANDARD OF REVIEW
[1] Whether a plaintiff’s negligence claims are precluded
by an exception to the PSTCA is a question of law for which
3
See id.- 233 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224an appellate court has a duty to reach its conclusions inde­
pendent of the conclusions reached by the district court. 4
[2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 5
ANALYSIS
Jurisdictional Note.
As an initial note, we have jurisdiction over this appeal
under Neb. Rev. Stat. § 25-1902(1)(d) (Supp. 2019). That
section includes, in the definition of a final order from which
an appeal may be taken, “[a]n order denying a motion for
summary judgment when such motion is based on the asser-
tion of sovereign immunity or the immunity of a govern-
ment official.” 6
Immunity.
The primary issues presented by this appeal are whether
MUD is immune from suit as to its prefire actions in locat-
ing the relevant gas lines and in failing to abandon a gas line
that previously serviced the Mercer Building, and also as to
its postfire actions related to turning off the gas line servicing
the Mercer Building. The district court denied MUD’s motion
for summary judgment, in which MUD had argued that it was
immune from suit under the discretionary function exception
to the PSTCA.
For the reasons set forth below, we affirm the decision of
the district court. In so affirming, we note that the sole issue
presented to this court on appeal is whether MUD was entitled
to immunity from suit, and accordingly, this court consid-
ers the facts only to the extent it is necessary to determine
4
See Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551(2018).
5
Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).
6
§ 25-1902(1)(d).
- 234 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224whether the allegations against MUD were protected by the
discretionary function exception to the PSTCA. We are not
presented with, nor do we opine upon, the merits of the under-
lying litigation.
The PSTCA operates to waive the immunity of politi-
cal subdivisions, but is subject to exceptions as set forth in
§ 13-910. Section 13-910(2) provides that the PSTCA does
not apply to “[a]ny claim based upon the exercise or perform­
ance of or the failure to exercise or perform a discretionary
function or duty on the part of the political subdivision or an
employee of the political subdivision, whether or not the dis-
cretion is abused.”
[3,4] The purpose of the discretionary function exception is
to prevent judicial “second-guessing” of legislative and admin-
istrative decisions grounded in social, economic, and political
policy through the medium of an action in tort. 7 The discretion-
ary function exception extends only to basic policy decisions
made in governmental activity, and not to ministerial activities
implementing such policy decisions. The exception does not
extend to the exercise of discretionary acts at an operational
level. 8 Examples of discretionary functions include the ini-
tiation of programs and activities, establishment of plans and
schedules, and judgmental decisions within a broad regulatory
framework lacking specific standards. 9
[5] A court engages in a two-step analysis to determine
whether the discretionary function exception to the PSTCA
applies. 10 First, the court must consider whether the action
is a matter of choice for the acting employee. 11 If the court
concludes that the challenged conduct involves an element
of judgment, it must then determine whether that judgment
7
Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).
8
Id.9
Id.10
Id.11
Id.- 235 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224is of the kind that the discretionary function exception was
designed to shield. 12
[6] But when (1) a governmental entity has actual or con-
structive notice of a dangerous condition or hazard caused by
or under the control of the governmental entity and (2) the
dangerous condition or hazard is not readily apparent to per-
sons who are likely to be injured by the dangerous condition
or hazard, the governmental entity has a nondiscretionary duty
to warn of the danger or take other protective measures that
may prevent injury as the result of the dangerous condition or
hazard. 13 In such a situation, a governmental entity’s failure to
warn or take other protective measures is not a planning-level
decision involving a social, economic, or political policy judg-
ment and, therefore, does not come within the discretionary
function exception of the PSTCA. 14
The One-Call Notification System Act is relevant to the
nature of MUD’s assertion of immunity. The intent of the One-
Call Notification System Act is
to establish a means by which excavators may notify
operators of underground facilities in an excavation
area so that operators have the opportunity to iden-
tify and locate the underground facilities prior to exca-
vation and so that the excavators may then observe
proper precautions to safeguard the underground facili-
ties from damage. 15
Moreover, “[i]t is the purpose of the One-Call Notification
System Act to aid the public by preventing injury to persons
and damage to property and the interruption of utility serv­
ices resulting from accidents caused by damage to under-
ground facilities.” 16
12
Id.13
Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80(1993).
14
Id.15
§ 76-2302(1).
16
§ 76-2302(2).
- 236 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224In order to accomplish this purpose, the participating utili-
ties must comply with § 76-2323:
(1) Upon receipt of the information contained in the
notice pursuant to section 76-2321, an operator shall
advise the excavator of the approximate location of under-
ground facilities in the area of the proposed excavation by
marking or identifying the location of the underground
facilities with stakes, flags, paint, or any other clearly
identifiable marking or reference point . . . .
This court has previously discussed what qualifies as a
discretionary function for purposes of that exception to the
PSTCA. Recently, in Lambert v. Lincoln Public Schools, 17 we
concluded that the decision to enforce an elementary school’s
“no dogs” policy only during the schoolday was a discretion-
ary function and that the school district was immune from
suit under the PSTCA when it did not supervise a school
playground after school hours. We reasoned that school admin-
istrators were given broad discretion to place restrictions on
the use of school buildings and grounds, and also in utilizing
staff to supervise school grounds, because such decisions were
grounded in social, economic, and political policy. 18
Conversely, in Kimminau v. City of Hastings, 19 we held that
the failure to remove corn mash from the side of the road was
not protected from liability by virtue of the discretionary func-
tion exception to the PSTCA. We noted that the maintenance
of roads and highways was not a matter of choice, but was
required under state law. We reasoned that specific actions to
undertake a duty to maintain the roads were not policy deci-
sions, but were ministerial acts at the operational level pur-
suant to the statutory duty to maintain roads, and thus were
not immune under the discretionary function exception to
the PSTCA.
17
Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 (2020).
18
Id.19
Kimminau v. City of Hastings, supra note 7.
- 237 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224In Lemke v. Metropolitan Utilities Dist., 20 we found that the
discretionary function exception was not applicable and that
MUD had a nondiscretionary duty to warn its customers that
a flexible natural gas connector linking their range to a gas
line was defective, even if MUD did not provide the connec-
tor. We observed that the failure to warn in the instance where
the governmental entity had notice of a dangerous condition
and the dangerous condition was not readily apparent was
not a planning-level decision involving a social, economic, or
political policy judgment falling within the discretionary func-
tion exception.
Marking of Gas Line.
We turn first to whether the marking of the gas lines in
question was a matter of choice for the MUD locators. We
conclude that it was not. Section 76-2323 is clear that MUD
and Nebraska One-Call’s other members have a duty to “advise
the excavator of the approximate location of underground
facilities in the area of the proposed excavation by marking
or identifying the location of the underground facilities with
stakes, flags, paint, or any other clearly identifiable marking or
reference point.” MUD’s own locating manual also emphasizes
this necessity.
Our decision in Lemke informs of this duty. There, we con-
sidered whether MUD had a nondiscretionary duty to warn,
considering first, whether it had actual or constructive notice
of a dangerous condition or hazard caused by or under the
control of the governmental entity, and second, whether the
dangerous condition or hazard was readily apparent to per-
sons who are likely to be injured by the dangerous condition
or hazard. 21
MUD argues that the HDD was the dangerous condition
or hazard and that because it was being performed by NCS,
it was not under MUD’s control. We disagree. While HDD is
20
Lemke v. Metropolitan Utilities Dist., supra note 13.
21
Id.- 238 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224undoubtedly a dangerous activity, any danger was a result of
the potential for striking buried utility lines. Those lines are
under MUD’s sole control. The record demonstrates that the
buried gas lines servicing the Mercer Building were known
to MUD and were under MUD’s control but, because of their
buried nature, were not readily apparent to the excavators who
eventually struck the lines.
While we agree that some discretion is given to MUD in
how these lines are marked, there is no discretion—as set forth
by the applicable state statutes, the excavator manual, MUD’s
own locating manual, and the test set forth in Lemke—with
respect to the ultimate responsibility to mark the lines. As such,
MUD’s marking of the lines was not a matter of choice for
purposes of the discretionary function exception.
To the extent that there was discretion given to MUD loca-
tors as to the method of marking used by MUD, such discretion
is not of the social, economic, or political policy that the dis-
cretionary function exception was designed to protect. Rather,
the method the MUD locator used to mark the gas lines in
question is the type of operational discretion not protected by
the discretionary function exception.
Gas Shutoff.
We conclude the same as to allegations that MUD failed
to timely shut off the gas and to properly abandon the out-of-
service gas line outside of the Mercer Building.
MUD’s own gas emergency procedure requires MUD to
respond to emergencies and, upon request, shut off the natu-
ral gas; one MUD employee testified in a deposition that in
responding to a gas fire, the number one priority is to shut off
the gas “as quickly as possible.” The exercise of this action
was not a matter of choice.
We note MUD contends that while at the fire, its employ-
ees were acting in emergency conditions and their actions
should be reviewed in light of those conditions. MUD takes
issue with the appellees’ listing of all of MUD’s perceived
wrongs at the scene and suggests that those are the types of
- 239 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
MERCER v. NORTH CENTRAL SERV.
Cite as 308 Neb. 224discretionary acts made in an emergency that should not be
second-guessed.
But we read the appellees’ primary assertion to be that MUD
had a duty to turn off the gas as soon as possible and that as
a result of its various deficiencies at the scene, MUD failed to
do so. Regardless of the emergency—indeed because of the
emergency—for purposes of the discretionary function excep-
tion, MUD had no choice as to whether it needed to turn off
the gas in a timely manner. As such, the discretionary function
exception is inapplicable.
Abandonment of Old Gas Line.
Finally, with respect to the improperly abandoned gas line,
there was testimony that upon discovering this line, the loca-
tor, Sacco, had a responsibility to tell a supervisor that the line
had not been properly abandoned. MUD’s locating manual sets
forth the procedure to be followed in this event. Where service
records are in need of correction, the locating manual provides
that a locator “shall” call it into dispatch or fill out forms
reporting the error. In addition, MUD has a separate procedure
manual for use in the event that it needed to abandon a gas
line. This, also, was not a matter of choice, and the discretion-
ary function exception does not provide immunity. There is no
merit to MUD’s assignments of error.
CONCLUSION
We find no error in the district court’s denial of summary
judgment in each case finding that MUD was not immune
from suit. That the gas lines were to be clearly marked, the
gas to be shut off by MUD in the event of a gas fire, and the
gas lines to be properly abandoned were not matters of choice.
Each was required, at a minimum, by our case law regarding
dangerous conditions and by MUD’s own policies, and were
not protected by the discretionary function exception to the
PSTCA. As such, in each case, the decision of the district
court is affirmed.
Affirmed.