Mercer v. North Central Service, Inc.

Summary

The Nebraska Supreme Court affirmed the denial of Metropolitan Utilities District’s motions for summary judgment in consolidated negligence actions arising from a natural gas explosion and fire in Omaha’s Old Market area. The court held that MUD’s duties to mark underground gas lines, timely shut off gas during the emergency, and properly abandon a gas line were operational or nondiscretionary duties not protected by the discretionary function exception to the Political Subdivisions Tort Claims Act.

Holdings

1. MUD's duty to identify and mark the underground gas lines was not a matter of choice and therefore was not protected by the discretionary function exception. Any discretion concerning the method of marking was operational discretion, not policy-level discretion covered by the exception.
2. MUD's alleged failure to shut off the gas as quickly as possible during the fire was not protected by the discretionary function exception because responding to the emergency and shutting off the gas were nondiscretionary duties rather than policy choices.
3. The alleged failure to properly report or abandon the out-of-service gas line was not protected by the discretionary function exception because MUD's policies required the locator to report the problem and prescribed procedures for abandonment.

Questions Presented

1. Whether MUD's alleged failure to properly locate and mark the gas line was protected by the discretionary function exception to the Political Subdivisions Tort Claims Act.
2. Whether MUD's alleged failure to timely shut off the gas during the fire was protected by the discretionary function exception.
3. Whether MUD's alleged failure to properly report or abandon an out-of-service gas line was protected by the discretionary function exception.
4. Whether the district court properly denied MUD's motions for summary judgment asserting immunity.

Disposition

affirmed