Lemke v. Metropolitan Utilities Dist.

• Decision Date: 18 June 1993
• Docket Number: No. S-90-1010,S-90-1010
• Citation: 502 N.W.2d 80,243 Neb. 633
• Parties: Lorraine B. LEMKE and Kenneth H. Lemke, Appellees, v. METROPOLITAN UTILITIES DISTRICT, a Political Subdivision, Appellant.
• Court: Nebraska Supreme Court

Page 80

502 N.W.2d 80

243 Neb. 633

Lorraine B. LEMKE and Kenneth H. Lemke, Appellees, v. METROPOLITAN UTILITIES DISTRICT, a Political Subdivision, Appellant.

No. S-90-1010.

Supreme Court of Nebraska.

June 18, 1993.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Liability. Whether undisputed facts demonstrate that liability is precluded by the discretionary function exemption of the Political Subdivisions Tort Claims Act is a question of law.

2. Political Subdivisions Tort Claims Act: Liability. Performance or nonperformance of a discretionary function cannot be the basis for liability under the Political Subdivisions Tort Claims Act.

3. Governmental Subdivisions: Notice: Negligence. When (1) a governmental entity has actual or constructive notice of a dangerous condition or hazard caused by or under the control of the governmental entity and (2) the dangerous condition or hazard is not readily apparent to persons who are likely to be injured by the dangerous condition or hazard, the governmental entity has a nondiscretionary duty to warn of the danger or take other protective measures that may prevent injury as the result of the dangerous condition or hazard.

4. Public Utilities: Negligence. A gas company must exercise a degree of care commensurate with the hazards of natural gas as a dangerous commodity.

5. Public Utilities: Negligence. On account of the inherent and substantial danger of natural gas, a gas distribution company has a nondelegable duty to exercise due care in the distribution of natural gas.

6. Public Utilities: Negligence. Because a gas company has a nondelegable duty to exercise due care regarding natural gas supplied to a customer, a gas company's duty of care not only pertains to the company's distribution of gas through its pipelines, but extends to distribution through a customer's service line or gas appliance that the company knows, or should know, is unsafe for conducting or using gas.

7. Public Utilities: Negligence: Liability. Despite a gas company's nondelegable duty, the company is not liable for injuries from distribution of natural gas if the company has neither knowledge nor the opportunity to learn through reasonable diligence that a dangerous condition exists in the system used for distribution of its gas.

Thomas A. Wurtz, Lincoln, and Daniel G. Crouchley, Omaha, for appellant.

John R. Douglas, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

SHANAHAN, Justice.

In a negligence action brought under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. § 13-901 et seq. (Reissue 1987), Lorraine B. Lemke and Kenneth H. Lemke obtained judgments against Metropolitan Utilities District of Omaha (MUD), which has appealed.

STANDARD OF REVIEW

"A district court's factual findings in a case brought under the Political Subdivisions Tort Claims Act will not be set aside unless such findings are clearly incorrect." Lynn v. Metropolitan Utilities Dist., 225 Neb. 121, 125, 403 N.W.2d 335, 338 (1987). Accord, Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988); Hughes v. Enterprise Irrigation Dist., 226 Neb. 230, 410 N.W.2d 494 (1987).

In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. In reviewing a judgment awarded in a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

Broekemeier Ford v. Clatanoff, 240 Neb. 265, 267, 481 N.W.2d 416, 418 (1992). Accord, Young v. Dodge Cty. Bd. of Supervisors, 242 Neb. 1, 493 N.W.2d 160 (1992); Ballard v. Giltner Pub. Sch., 241 Neb. 970, 492 N.W.2d 855 (1992).

FACTUAL BACKGROUND

The Lemke House.

Lorraine Lemke resided in Omaha, where she lived in a house owned jointly by her and her husband, Kenneth. In 1968, Lemkes had acquired and moved into an older, previously owned house. Jason, Lemkes' 13-year-old son, also lived in the house, which was originally a single-family dwelling but had been converted into five apartments, that is, two apartments on the main floor, two upstairs, and one in the basement. However, on April 27, 1987, Lemkes had no tenants. The main-floor apartments were served by two natural gas ranges. Additionally, there was a gas range in the upstairs apartment which Lemkes sometimes used. The ranges were already installed when Lemkes bought the house. At times, the wind blew out the pilot lights on the ranges. Either Lorraine or Kenneth relighted the pilot lights by using a match to ignite a burner on the range. Lemkes needed no major repairs on any of the ranges, although MUD's servicemen were occasionally summoned to make adjustments on Lemkes' gas appliances.

The Explosion.

On April 27, 1987, Lorraine awoke at 6 a.m., got up, walked into Jason's room to awaken him for school, brought in the morning newspaper, and went into the kitchen to read the paper. Throughout this As Lorraine was walking Jason toward the front door so that he might catch a schoolbus at 7 a.m., both Lorraine and Jason smelled gas in the entryway, an odor similar to that detected on previous occasions when a pilot light had gone out on one of the ranges. After Jason boarded the bus, Lorraine took matches from the main-floor kitchen and climbed the stairway to the second-floor apartment which contained a gas range. In that apartment, Lorraine discovered that the range's pilot light was out. She then struck a match, turned one of the burner control knobs to the "on" position, and attempted to light the stove. As she was attempting to light the burner, "the whole stove was engulfed in flames. And then the flames were shooting to the ceiling." Part of the apartment's floor collapsed, and Lorraine fell two floors into the basement, where she staggered up the basement stairs, then went outside and across the street to obtain help. Because her clothing had been incinerated or blown off, a man covered Lorraine with a blanket until the rescue squad arrived.

time, Lorraine smelled nothing unusual, but when she later entered the first-floor bathroom, she smelled the odor of gas which she believed had entered through an open bathroom window after emanating from a "truck spilling gas" on a nearby street.

LEMKES' LOSSES

Injuries and Medical Expenses.

Lorraine Lemke was transported to a hospital, admitted to its emergency room, and then taken to surgery for medical attention to her burned body. Dr. Joel Bleicher, a specialist in plastic surgery, made the initial diagnosis of Lorraine's condition and undertook treatment of her injuries. According to Dr. Bleicher, Lorraine had sustained second degree burns on her face, third degree burns to both of her hands, and burns on her legs, and had suffered the loss of several fingernails. Also, there was loss of skin on Lorraine's abdomen and chest. Dr. Bleicher determined that Lorraine had suffered burns on 60 percent of her body.

As one of the first steps in treating Lorraine on April 27, Dr. Bleicher commenced debridement (removal of dead tissue) with a dermatome, a "razor blade sharp apparatus that is either oscillated by hand or by some mechanical power apparatus and it shaves the layers of dead skin off the body." Also, Lorraine was placed on a ventilator "to breathe for" her.

On May 1, after additional debridement on Lorraine's legs and torso, skin grafting was undertaken, and the grafts were "stapled into position." The total graft area at that time covered 500 square centimeters on Lorraine's body. On May 5, Dr. Bleicher continued debridement on Lorraine's legs and torso. A catheter was inserted for supplying Lorraine with nutrition and medication. A tracheostomy (surgically opening the trachea) was necessary for "long-term intubation for ventilation" on account of edema or swelling in Lorraine's throat that caused "respiratory insufficiency." Consequently, a tube was inserted into Lorraine's trachea and connected to a ventilator. Also, a laryngoscopy (examination of the interior larynx) was performed to determine whether Lorraine's vocal cords had been damaged by the explosion and fire. A "burn vest" was applied to reduce Lorraine's bodily movement in the areas where the skin grafts had been applied. The catheter was surgically replaced on May 8 and 16. At that time, there was additional debridement and grafting, that is, grafts of 120 square centimeters on Lorraine's right hand and 216 square centimeters on her right thigh. This was a continuation of "numerous reconstructive procedures to obtain skin coverage" in the burned areas. On May 29, Dr. Bleicher performed "several debridements" for grafts to Lorraine's feet. Throughout this time, Lorraine's condition required attention from several specialists in addition to Dr. Bleicher; for instance, examinations by an internist relative to infection and attendance by a psychiatrist on account of the trauma involved in the entire episode.

Lorraine was confined to intensive care from April 27 to May 20, was assisted by a ventilator from April 27 to May 15, and was fed intravenously from April 27 to June 11. At the hospital, Lorraine also received physical therapy on account of burns and reconstructive surgery. Lorraine was discharged from the hospital on July 8.

According to Dr. Bleicher, the fire caused severe scarring to Lorraine, with obvious discoloration due to "donor sites for skin grafts," and increased Lorraine's risk of skin cancer. Doctor and hospital expenses for Lorraine totaled $144,044. Also, Dr. Bleicher felt that Lorraine would require additional surgery and hospitalization as the result of her injuries sustained in the explosion and fire.

Property Damage.

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