‘Known and compelling danger’ of gas leak explosion could strip Milwaukee of government immunity

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Mary Oden was no doubt confused as she lay in a hospital bed the day after her Milwaukee duplex blew up in the middle of the night just over six years ago.

Less than 45 minutes before the explosion — which occurred at 3:43 a.m. Feb. 1, 2009 — police had knocked on her front door to warn about a gas leak but said no evacuation was necessary.

Were they in fact, along with firefighters, duty bound to ask residents living near the gas leak to leave their homes? That question is at the heart of a recently released Wisconsin Court of Appeals District 1 ruling.

In the case of Mary C. Oden v. City of Milwaukee, the city claimed its employees were immune from prosecution both because they had taken some action in response to the leaking gas and because there was no evidence showing that they had failed to perform a so-called ministerial duty.

Still, the court deemed leaking gas to be a “known and compelling danger.” Hence a question of fact remained over whether fire and police personnel were negligent for not asking areas residents to leave. With that matter unresolved, the court decided summary judgment was inappropriate.

Early in the morning on Feb. 1, 2009, two frantic 911 calls came in — at 2:14 and 2:18 a.m. — from residents who lived near Mary Oden in the 2400 block of Milwaukee’s North 10th Street. Each caller warned of a strong smell of gas in their houses.

One caller was adamant that the threat was serious. If the police came and lit a match, he said, “I swear to God, this whole block would blow up.”

Milwaukee Fire Department trucks and personnel arrived at the scene within 5 minutes of the call and confirmed a “strong odor of gas throughout the block.” They also found that a gas pipe was broken and was “gurgling and making a loud hissing sound.”

Milwaukee Fire Department Engine 5 and Fire Battalion Chief Paul Conway instructed firefighters and Milwaukee police officers to speak with several of the neighbors and confirm that the leak was a real threat.

The Milwaukee Fire Department, following what it deemed to be standard procedure, reached out to the local gas company, We Energies. Waiting for the company’s representatives to arrive, Milwaukee police cordoned off the block.

Conway and the other firefighters at the scene, after concluding that the threat was under control, returned to their stations at 2:35 a.m.

Just over an hour later, the pilot light of a water heater in Oden’s basement ignited gas that had migrated from the broken mainline. Oden and her then 8-year-old son, Octavius, were seriously injured in the resulting explosion. Fire and police responders told nearby residents to leave.

Oden later filed suit against both the city and We Energies for damages arising from their extensive “permanently disfiguring, physical and psychological injuries,” saying that the city had failed to tell residents to leave amid the gas leak — a known danger.

The circuit court dismissed Oden’s claim on summary judgment. Milwaukee County Judge Michael Guolee ruled that, because the city had taken some action in response to the gas leak, the defendants were protected by government immunity.

On appeal, Oden’s counsel argued that the lower court had failed to understand the Milwaukee police and fire departments’ basic responsibilities.

The case presented a classic example of the “known present danger” exception to government immunity, Oden’s counsel contended. At times when fire and police departments are confronting what they recognize to be a “known, present danger of an imminent explosion and grave risk of injury,” the counsel argued, residents who are standing in harm’s way should be told to leave.

When, in the Oden case, police and fire responders failed to order an evacuation, their decision should strip them of government immunity provided under Wis. Stat. 893.80(4)(2013-14), Oden’s counsel argued.

To show that uncontrolled natural gas is widely recognized to be “highly explosive” and have a “dangerous character,” Oden’s counsel cited various cases from Wisconsin and surrounding jurisdictions.

In particular, Oden’s counsel made frequent reference to American Jurisprudence Trials, a printed guide to techniques and strategies used by trial lawyers and others in the legal profession. The citations carefully explained the dangers that uncontrolled gas has posed as much as 100 feet away from mainlines that were known to be broken on or before the date of an explosion.

Oden’s counsel also pointed to training received by fire personnel. In 2008, We Energies conducted a series of daylong seminars over a six-week period, presenting information about “Electric and Natural Gas Hazards and the First Responder.” The company distributed training manuals explaining the dangers of migrating underground gas to fire department employees.

Among the many pieces of advice in the 2008 handbook was the following: “If (a gas level) testing instrument is not available, and you smell gas, use the most cautious choice and evacuate the area.”

Still, Milwaukee’s fire and police departments did not have a manual or written guidelines that would have directed first responders to tell residents to leave an area immediately in response to a gas leak, the city of Milwaukee’s counsel argued in an appellate brief.

Because there was no stated policy, the fire and police departments had no “ministerial duty” to evacuate the area and could instead use discretion. Even if that discretion was later proven to be incorrect, Milwaukee’s counsel argued, the responsders would enjoy the immunity conferred by Wis. Stat. Sect. 893.80(4)(2013-14).

The appellate court reversed Judge Guolee’s decision in the lower court, finding that Oden had raised a reasonable question of fact about whether the police and fire departments had failed to respond correctly in light of the seriousness of the threat.

The appellate court placed substantial weight on the Milwaukee Fire Department’s having, in 2008, provided training and training manuals on the proper way to respond to gas leaks.

Deciding whether city employees had neglected a ministerial duty did not require going into a series of complicated considerations, according to the court. The basic question was: Did a specific policy or “source of law” create a duty for the police or fire departments to order the area to be evacuated?

The evidence suggested that Milwaukee had made We Energies responsible for ensuring first responders were trained and had essential information about leaks and gas emergencies. The training in 2008 and accompanying handbook made repeated references to the need to evacuate a place if gas was smelled there. Also stressed was that responders should deal with gas leaks as cautiously as possible.

Had the Milwaukee fire and police departments proceeded as safely as they could have? According to the appellate court, that answer would be best provided by a jury.