Mercer v. North Central Serv.
953 N.W.2d 551
Neb.2021Background
- On Jan. 9, 2016, a horizontal directional drill (HDD) by North Central Service (NCS) struck a buried natural gas line outside the Mercer Building in Omaha, causing an explosion and fire.
- Metropolitan Utilities District (MUD) participated in Nebraska One-Call and had locators (Sacco, Jankowski) who responded to "refresh" locate tickets in Dec. 2015–Jan. 2016 and made paint/markings and records regarding underground facilities.
- Plaintiffs allege three primary MUD failures: (1) improper or inadequate marking of the gas line, (2) failure to timely shut off gas during the fire, and (3) failure to properly abandon an out-of-service gas service/stop box.
- MUD moved to dismiss/for summary judgment asserting immunity under the Political Subdivisions Tort Claims Act (PSTCA) discretionary-function exception; the district court denied summary judgment, finding the challenged acts were operational/ministerial rather than protected policy decisions.
- The Nebraska Supreme Court reviewed only whether the discretionary-function exception barred plaintiffs’ negligence claims and affirmed the denial of summary judgment, holding MUD was not immune as to the marking, shutoff, and abandonment allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MUD’s marking of underground gas lines is protected by the PSTCA discretionary-function exception | MUD’s marking was required and not discretionary; failure to mark properly is negligence | Marking method/placement involved locator judgment and thus discretionary policy protected by PSTCA | Not protected: statutes, One-Call rules, and MUD policies impose a nondiscretionary duty to mark/identify facilities; any method-level choices are operational (no immunity) |
| Whether MUD’s delay/failures in shutting off gas at the fire are discretionary | Plaintiffs: MUD had a nondiscretionary duty to shut off gas promptly during a gas-fed fire | MUD: on-scene emergency decisions are discretionary and should be immune from second-guessing | Not protected: MUD had a mandatory duty to shut off gas in emergencies; timing was not a policy choice (no immunity) |
| Whether MUD’s alleged failure to properly abandon an old gas service is protected | Plaintiffs: locating records showed an improperly abandoned stop box and MUD had mandatory procedures to report/correct; failure to follow them is operational negligence | MUD: abandonment/related decisions involve discretion and thus fall within PSTCA exception | Not protected: MUD’s own manuals impose mandatory reporting/abandonment procedures; the acts were non‑discretionary (no immunity) |
| Scope/standard of the discretionary-function exception under PSTCA | Plaintiffs: exception covers planning/policy but not ministerial/operational duties where statute or policy prescribes action | MUD: broader immunity over operational decisions during locates and emergencies | Held: Two-step test applies—(1) was there choice? and (2) was the choice of the kind the exception protects. Statutes and MUD manuals eliminated choice for the challenged acts; exception did not apply |
Key Cases Cited
- Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617 (2018) (appellate duty to independently review whether PSTCA exceptions apply)
- Kaiser v. Allstate Indemnity Co., 307 Neb. 562 (2020) (standard for de novo review of summary judgment)
- Kimminau v. City of Hastings, 291 Neb. 133 (2015) (discretionary-function exception does not shield operational/ministerial acts required by statute)
- Lemke v. Metropolitan Utilities Dist., 243 Neb. 633 (1993) (governmental entity with notice of a hidden dangerous condition has a nondiscretionary duty to warn or take protective measures)
- Lambert v. Lincoln Public Schools, 306 Neb. 192 (2020) (examples of decisions that qualify as discretionary policy judgments under PSTCA)