In Oden v. City of Milwaukee, No. 2014AP130, slip op. (Wis. Ct. App. Mar. 3, 2015), the court of appeals held that the City of Milwaukee was not entitled to summary judgment on the grounds that the City was immune from a negligence suit involving a gas leak and eventual explosion of a City resident’s home.

In February, 2009, two residents called 911 to report an odor of natural gas. Members of the Milwaukee Fire and Police Departments (the “Departments”) confirmed “bubbling” gas leaks from the street. The Departments notified WE Energies and returned to their stations. As a result of the natural gas leak, Mary Oden’s home exploded with Oden and her son inside, causing them severe injuries. After the explosion, buses were requested, evacuation was ordered, and police were ordered to “kick doors in if residents do not answer.” Oden sued the City claiming that responding members of the Departments negligently failed to evacuate residents from their homes. The circuit court granted the City’s summary judgment motion, concluding that the City was immune from suit under Wis. Stat. § 893.80(4). Oden appealed.

The court of appeals reversed the circuit court, finding summary judgment improper. The court reiterated that municipalities cannot be immune from liability associated with the performance of ministerial duties imposed by law or policy and known and compelling dangers that give rise to ministerial duties on the part of public officers or employees. The court found that the City had a ministerial duty to act in two ways. First, the court identified a policy, a First Responder Handbook, adopted by the City delegating to WE Energies both the Departments’ emergency training and performance requirements on how to respond to natural gas emergencies. This policy imposed a ministerial duty on the Departments; thus, the City had no immunity. Second, the court concluded that the gas leak was a known and compelling danger which imposed a ministerial duty on the City to act. The court remanded the question of whether the City was negligent in how it performed its ministerial duty.

This case serves as a reminder to municipalities, including police and fire departments, to review and understand current policies. Policies serve as a great way to dictate public policy within a community, but they can create certain legal obligations, as in the case above. If you have questions regarding any adopted policies, please contact a member of the Stafford Rosenbaum Government Law team.

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