Milwaukee Not Entitled to Immunity for Explosion

The Wisconsin Court of Appeals has ruled that the City of Milwaukee must stand trial over its response to a gas leak in 2009 that resulted in a house explosion.

The incident occurred on February 2, 2009 when firefighters were dispatched to the 2400 block of North 10th Street for a reported odor of natural gas. Crews were dispatched at 2:15am and according to the decision:

  • Records indicate that a “strong odor of gas throughout the block” was observed and “there [was] a gas break in the street; WE Energies notified.”
  • By 2:29 a.m., responders had “confirmed gas leak … [f]rom the street which is bubbling … [r]ight now per MFD. People are remaining in homes but being notified door to door. Will advise if evacutation (sic) is necessary & if county buses needed.”
  • At approximately 2:35 a.m., according to MFD records, Fire Battalion Chief Paul Conway and all firefighters returned to their stations, leaving Milwaukee police to wait for We Energies representatives to arrive.

One hour later, at 3:37 a.m., Mary Oden’s home, located at 2427 North 10th Street, exploded seriously injuring her and her eight-year-old son, Octavius Holt. Thereafter the entire neighborhood was evacuated. The cause of the leak was the rupture of a major gas line in the street which allowed gas to migrate into Oden’s basement through the soil.

Oden sued the city claiming firefighters and police negligently failed to evacuate the neighborhood when they first discovered the gas leak.

The trial court granted the city’s motion for summary judgment concluding it was immune from liability pursuant to WIS. STAT. § 893.80(4) (2013-14) because neither Milwaukee firefighters or police had a “ministerial duty” to evacuate the homes due to a gas leak. The court found “[t]here is no particular document or policy that imposes a duty here,” although “[t]here is no doubt that the gas leak here was extremely dangerous, more than unsafe.” The police officers and firefighters “had no ministerial duty based on the policies or law to act in a certain prescribed way. They used their discretion.”

The Court of Appeals disagreed, concluding that the Milwaukee Fire Department did indeed have a ministerial duty to evacuate.

  • The MFD had a ministerial duty based on the City action delegating to We Energies both MFD emergency response training and performance requirements in the First Responder Handbook. Consequently, the City has no immunity. …
  • The undisputed facts establish that there was a gas leak in the street of a residential block causing bubbling water at 2:30 a.m. in the winter—a time when most residents were probably sleeping. It is undisputed that the nature of the gas leak created a serious danger.
  • A jury could conclude that responding members of the MFD were negligent if they failed to follow the ministerial duties described above. Consequently, summary judgment for the City was improper.

The Court of Appeals also found a second reason to reverse the trial court: the “known and compelling danger exception to governmental immunity.”

  • “The theory of this exception is that when a danger known to a public officer or employee is of such a compelling force, it strips that person of discretion or judgment and creates an absolute, certain and imperative duty to act.” Heuser, 321 Wis. 2d 729, ¶23. When the danger is an accident waiting to happen, the particular action required is ministerial in that it is self-evident.
  • The obvious leak in the street was confirmed by City employees promptly upon their arrival.
  • The trial court here observed, “[t]here is no doubt that the gas leak here was extremely dangerous, more than unsafe.”
  • We conclude, based on these undisputed facts, that this was a known and compelling danger which imposed a ministerial duty on the City to act.
  • Whether the City was negligent in the manner in which it performed its ministerial duty is a question for the jury.

The decision does not mean the city is necessarily liable, only that a jury must determine if the firefighters were negligent based upon the facts.

Here is a copy of the decision: Oden v Milwaukee

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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