Nebraska Supreme Court Rules in Roadway Cleanup Case

The Supreme Court of Nebraska has ruled that a fire department can be liable to a motorist injured due to the department’s negligence in clearing spilled debris from a roadway. The court went even further ruling that the fire department’s response to the scene cuts off any duty that the original motorist may have had to other motorists for causing the initial spill.

The case involved two incidents a day apart in Adams County on November 15 and 16, 2009. In the initial incident, a truck driven by Wayne Todd spilled wet corn mash onto the roadway. The truck was owned by R Lazy K.

According to the decision, a state trooper observed the spillage and requested assistance from the Hastings Fire Department and the Hastings Rural Fire Department. The fire departments moved the debris, said to be the consistency of tapioca pudding, off the roadway and onto the shoulder. Once this was completed the trooper opened the highway. The trooper also cited Todd.

On November 16, 2009, Kaelynn Kimminau lost control of her vehicle which she attributed to the previously spilled corn mash left on the unpaved shoulder. Kimminau and her husband sued Todd, R Lazy K, City of Hastings, Hastings Rural Fire District (Hastings Rural), and the County of Adams.

The trial court granted summary judgment to all defendants and the Kimminaus appealed.

The governmental entities sought to avoid liability by claiming they were exercising a discretionary function and hence immune under the state’s tort claims act. The Nebraska Supreme Court disagreed.

  • The discretionary 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.
  • Examples of discretionary functions include the initiation of programs and activities, establishment of plans and schedules, and judgmental decisions within a broad regulatory framework lacking specific standards.
  • All three political subdivisions had actual notice of the defect within a sufficient time to allow repair, and their sovereign immunity was therefore waived pursuant to § 13-910(12).
  • We conclude the district court erred in granting summary judgment to the political subdivisions on the basis of sovereign immunity.
  • We emphasize that this disposition focuses solely on the issue of sovereign immunity.
  • We do not comment on the merits of the Kimminaus’ claims against the political subdivisions, including questions with respect to duty, as those issues have not yet been addressed by the district court.

As for the liability of Todd and R Lazy K, the court ruled:

  • Generally, public authorities are in a better position than an average motorist to determine when an obstruction has been sufficiently removed from a roadway to make it safe for travel, particularly when such authorities take control of the scene and actively engage.
  • It is not reasonable to expect a motorist in that circumstance to second-guess the judgment of the public authorities regarding the efficacy of their actions and the safety of the roadway.
  • The district court correctly determined that the actions of the firefighters who responded to the spill and Dart, the state trooper who opened the road for traffic, cut off any duty that Todd and R Lazy K had to remediate the spill or warn of the hazard it posed to other motorists.

Here is a copy of the ruling: Kimminau v City of Hastings

Just to be clear – the Nebraska Supreme Court DID NOT FIND THE FIRE DEPARTMENTS LIABLE for Kimminau’s accident. All the court said was that a jury needs to determine IF THE DEPARTMENTS were negligent in clearing the corn mash from the roadway and whether that negligence was the proximate cause of Kimminau’s accident.

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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