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Mark Mercer, individually, et al., appellees, and 

Columbia National Insurance Company, a Nebraska 

corporation, and Farmers Mutual Insurance Company 

of Nebraska, a Nebraska mutual insurance company, 

intervenors-appellees, v. North Central Service, Inc., 

a Minnesota corporation, et al., appellees, and 

Metropolitan Utilities District, a political 

subdivision, appellant.

M’s, Inc., a Nebraska corporation, doing business 

as M’s Pub, appellee, and United Fire & Casualty 

Company, as subrogee for M’s, Inc., a Nebraska 

corporation, intervenor-appellee, v. 

Metropolitan Utilities District, 

a political subdivision, 

appellant.

Columbia National Insurance Company, as subrogee 

for Old Omaha Association, appellee, v. 

Metropolitan Utilities District, a 

political subdivision, appellant.

Nouvelle Eve, Inc., a Nebraska corporation, and 

Susanne Keuck, an individual, appellees, and 

Truck Insurance Exchange, as subrogee for 

Nouvelle Eve, Inc., a Nebraska corporation, 

intervenor-appellee, v. Metropolitan 

Utilities District, a political 

subdivision, appellant.

___ N.W.2d ___

Filed January 22, 2021. Nos. S-20-193, S-20-196, S-20-198, S-20-205.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/05/2021 01:09 AM CST
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1. Political Subdivisions Tort Claims Act: Appeal and Error. Whether 

a plaintiff’s negligence claims are precluded by an exception to the 

Political Subdivisions Tort Claims Act is a question of law for which 

an appellate court has a duty to reach its conclusions independent of the 

conclusions reached by the district court.

2. Summary Judgment: Appeal and Error. An appellate court reviews 

the district court’s grant of summary judgment de novo, viewing the 

record in the light most favorable to the nonmoving party and drawing 

all reasonable inferences in that party’s favor.

3. Political Subdivisions Tort Claims Act. The purpose of the discretionary function exception to the Political Subdivisions Tort Claims Act is 

to prevent judicial second-guessing of legislative and administrative 

decisions grounded in social, economic, and political policy through the 

medium of an action in tort.

4. ____. The discretionary function exception to the Political Subdivisions 

Tort Claims Act extends only to basic policy decisions made in governmental activity, and not to ministerial activities implementing such 

policy decisions. The exception does not extend to the exercise of discretionary acts at an operational level. Examples of discretionary functions include the initiation of programs and activities, establishment of 

plans and schedules, and judgmental decisions within a broad regulatory 

framework lacking specific standards.

5. ____. A court engages in a two-step analysis to determine whether 

the discretionary function exception to the Political Subdivisions Tort 

Claims Act applies. First, the court must consider whether the action is 

a matter of choice for the acting employee. If the court concludes that 

the challenged conduct involves an element of judgment, it must then 

determine whether that judgment is of the kind that the discretionary 

function exception was designed to shield.

6. Political Subdivisions Tort Claims Act: 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. In such a situation, a governmental entity’s failure to 

warn or take other protective measures is not a planning-level decision 

involving a social, economic, or political policy judgment and, therefore, does not come within the discretionary function exception of the 

Political Subdivisions Tort Claims Act.
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Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed.

Michael F. Coyle, Robert W. Futhey, and Daniel J. Gutman, 

of Fraser Stryker, P.C., L.L.O., and Mark A. Mendenhall, of 

Metropolitan Utilities District, for appellant.

Anne Marie O’Brien and Michael L. Storey, of Lamson, 

Dugan & Murray, L.L.P., for appellees Mark Mercer et al.

Matthew B. Reilly and Thomas J. Culhane, of Erickson & 

Sederstrom, P.C., L.L.O., for intervenors-appellees Columbia 

National Insurance Company and Farmers Mutual Insurance 

Company.

Thomas M. White and Amy S. Jorgensen, of White & 

Jorgensen, and Richard A. DeWitt and Robert M. Gonderinger, 

of Coker, Huck, Kasher, DeWitt, Anderson & Gonderinger, 

L.L.C., for appellee M’s, Inc.

Brian T. Bailey, of Nielsen, Zehe & Antas, P.C., for appellee 

United Fire & Casualty Company.

Edward F. Pohren and Jerry M. Slusky, of Smith, Slusky, 

Pohren & Rogers, L.L.P., for appellees Nouvelle Eve, Inc., and 

Susanne Keuck.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

An explosion and fire destroyed part of the Old Market area 

in Omaha, Nebraska. Various affected landowners and their 

insurers brought suit against a fiber optic contractor, a wireless company, and the Metropolitan Utilities District (MUD). 

The plaintiffs settled with all defendants except MUD. MUD 

sought summary judgment, arguing that it was immune from 

suit. The district court found that MUD was not immune 
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from suit and denied MUD’s motion for summary judgment. 

MUD appeals. We affirm.

BACKGROUND

Gas Explosion and Fire.

On January 9, 2016, at 2:50 p.m., an explosion and fire 

occurred in the Old Market area of Omaha. The natural gas 

explosion occurred in the basement of the Mercer Building, 

located at the corner of 11th and Howard Streets and owned 

by plaintiffs, Mark Mercer and Vera Mercer, who also resided 

in the building. The building’s ground floor housed two businesses, Nouvelle Eve, Inc., a clothing boutique, and M’s Pub, 

a restaurant.

MUD was, at all relevant times, a member of a statewide 

one-call notification center (Nebraska One-Call), also known 

as Nebraska811. 1 MUD contributed to the costs of Nebraska 

One-Call and provided MUD facility location information 

when requested. In addition to definitions and requirements 

as set out in statute, the Nebraska One-Call board of directors 

maintains an excavator manual, which is distributed to excavators intending to excavate in Nebraska. That manual was 

entered into evidence. Also offered into evidence was MUD’s 

locating manual.

On December 10, 2015, according to evidence offered at 

the summary judgment hearing, Chris Sacco, an MUD locator, responded to a locate request “refresh” ticket made under 

Nebraska One-Call by North Central Service, Inc. (NCS), for 

the area in front of the Mercer Building. NCS planned to use 

horizontal directional drilling (HDD) to bore an underground 

path for fiber optic cable. HDD is often referred to as “blind 

drilling.” It creates a risk of striking an object below the surface of the ground that is not seen by the drill operator. There 

is evidence in the record that natural gas pipe strikes as a result 

of HDD are common.

1 See Neb. Rev. Stat. § 76-2301 et seq. (Reissue 2009 & Cum. Supp. 2016).
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Sacco spoke with NCS’ foreman and walked the bore path 

with him. After walking the path, Sacco used MUD resources 

to ascertain where the shutoff valve for the relevant gas line 

was located. According to Sacco’s deposition, once he had 

determined the coordinates of the gas line in question and 

measured out those coordinates, he placed a dot of yellow paint 

on the curb in front of M’s Pub marking where the gas line 

entered the building.

Sacco testified that he then crossed 11th Street and found 

the gas service valve cover, but it was located under a parked 

car. Because he could not open the cover, Sacco could not electronically locate the distribution line. Instead, Sacco visually 

lined a traffic cone with the dot he had made in front of M’s 

Pub, and he then placed a second dot on the sidewalk in front 

of M’s Pub to mark where the gas line was in the bore path. 

There is also evidence supporting a finding that Sacco made a 

third mark in the street.

In addition to allegedly marking the line with dots, Sacco 

found the “stop box” for the gas line into the Mercer Building 

that had been abandoned in 2009. The stop box was next to the 

yellow dot that Sacco said he placed by the curb in front of M’s 

Pub. Based on the research he had just done to find the coordinates of the gas line, Sacco knew that this box was abandoned. 

Sacco testified that although he had a responsibility to tell his 

supervisor that the box had not been properly abandoned, he 

did not do so.

Sacco testified that he used dots and not lines because he 

did not want paint to drift onto M’s Pub customers who were 

seated outside. Other evidence suggested that at this time of 

year, the outdoor seating area was not open, and that thus, in 

the words of an owner of M’s Pub, there was “[n]ot a chance” 

diners were seated outside.

A report completed by the State Fire Marshal following an 

investigation into the fire opined that the dots found on the 

sidewalk in front of M’s Pub had not been recently marked 

when contrasted with brighter yellow markings across the 

street. Evidence about the relative brightness of the blue 
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paint marking the water lines that were laid by a different 

locator working with Sacco on December 10, 2015, was also 

offered to shed doubt on Sacco’s assertion that he located and 

marked the relevant gas lines on December 10.

On January 4, 2016, Ron Jankowski, a second MUD locator, 

was assigned another “refresh” ticket for the sidewalk in front 

of the Mercer Building. Jankowski spoke to the NCS foreman, 

who informed him that he was fine with the markings in the 

Old Market area and that MUD did not need to re-mark the 

area. Jankowski completed the remainder of the refresh tickets 

and then decided to drive through the Old Market to satisfy 

himself that marks for water and gas were painted in front of 

the building. Jankowski testified that he drove south down 11th 

Street, at between 10 and 15 miles per hour, and saw marks for 

water and gas painted in front of M’s Pub, though he did not 

see the yellow-marked gas valve cover.

On January 9, 2016, NCS began working just outside the 

Mercer Building. According to the record, NCS employees 

were aware of a gas line on the east side of 11th Street because 

it was marked with long yellow lines. According to the testimony of those involved, the area was searched for yellow 

markings, which were seen in the alley and on the east side of 

the street. According to deposition testimony, no yellow markings were found on the west side of 11th Street where the HDD 

was to be done in front of the Mercer Building.

While performing HDD, NCS struck the gas line in front of 

the Mercer Building. Gas escaped from the ruptured line and 

migrated to the basement of the building, where it encountered 

an ignition source and exploded. Notification of the fire was 

received by the 911 emergency dispatch service at 2:51 p.m. 

The Omaha Fire Department (OFD) and MUD were, in turn, 

notified. Upon arriving at the fire, an OFD representative 

determined that the fire was gas fed and that MUD was needed 

to turn off the gas.

Upon receiving notification of the fire, an MUD dispatcher radioed Al Kurz, an MUD field services technician, 
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at 2:53 p.m. Kurz was in the midst of a job and indicated 

that he would go to the fire when he was finished. The dispatcher took a second call from 911 at 2:55 p.m., when 

OFD concluded that gas was involved. The dispatcher updated 

Kurz at 2:56 p.m., then notified a senior MUD technician, 

Steve Osmera, who indicated he would report to the scene. 

Osmera then accessed the location of the gas line into the 

Mercer Building.

Having accessed the location and written down the coordinates, Osmera headed to the Old Market. But when he arrived 

there at 3:16 p.m., he was immediately summoned to speak 

to the OFD chief and left the paper with the coordinates in 

his vehicle. Osmera surveyed the scene and determined that 

a “grade one leak” had occurred, which is the most serious 

type of gas leak. He called dispatch at 3:17 p.m. so that other 

MUD personnel could be dispatched. At that time, Osmera was 

informed that an MUD foreman with authorization to turn off 

gas transmission main lines was on his way.

While walking the scene, Osmera saw a yellow-painted 

“stop box” in the sidewalk outside of M’s Pub. A stop box, or 

curb box, is an outside shutoff for a service used on a sidewalk. Osmera, believing that this was the valve to shut off gas 

service into the Mercer Building, moved to open the box and 

turn off the gas. As he sought out tools to do so, he encountered Kurz.

Kurz had arrived at the scene at 3:21 p.m. His assistant 

remained in their vehicle to look up the coordinates of the gas 

distribution valve into the Mercer Building. When Osmera saw 

Kurz arrive, he asked Kurz to help him turn off the valve he 

had located on the sidewalk. Kurz’ assistant followed Osmera 

to help. The three eventually got the valve into the off position, 

but the flames did not abate. At 3:31 p.m. Osmera notified 

dispatch that the valve was turned off but it did not “kill the 

flames.” Osmera then began looking on a computer for other 

valves for gas lines in the alley, but apparently, he did not look 

for other valves on 11th Street.
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About 1 hour later, MUD employees were walking around 

the area and noticed two “CC box[es]” in the street. A CC 

box is similar to a stop box or curb box, except it is made of 

heavier material for placement in the street. One CC box was 

marked “GAS.” The employees got the attention of Kurz and 

an OFD firefighter. Not waiting for MUD tools, the firefighter 

used a pick to open the CC box. Kurz was then able to turn 

off the gas at 4:26 p.m., about 11⁄2 hours after MUD was first 

notified of the fire. At that point, the fire in the stairwell at M’s 

Pub was extinguished.

Evidence showed that due to the danger in a fire fed by gas, 

OFD was not able to take an offensive position in fighting the 

fire until the gas had been turned off. So as MUD sought out 

the correct valve, OFD continued in a defensive position with 

respect to the fire, attempting to keep it from moving to surrounding buildings.

Procedural History.

Multiple lawsuits were initiated in Douglas County as a 

result of the damage caused by this fire. Plaintiffs in those 

cases filed suit, and numerous insurance companies intervened, 

alleging negligence as to multiple defendants. Due to various 

settlements, MUD is the only remaining defendant involved in 

these appeals. The plaintiffs’ allegations generally center on 

three failures by MUD: (1) failing to properly mark the gas 

line, (2) failing to timely shut off the gas at the scene of the 

fire, and (3) failing to properly abandon the old gas line outside 

the Mercer Building.

MUD filed a motion to dismiss in each case on the ground 

that it was immune from suit on the basis of the discretionary 

function exception to the Political Subdivisions Tort Claims 

Act (PSTCA). 2 That motion was denied by the district court, 

which concluded that it was “unable to determine, from 

the face of the challenged complaints, whether the alleged 

2 Neb. Rev. Stat. § 13-910(2) (Reissue 2012).
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negligence involved discretionary policy-level decision-making 

or operational-level conduct.” Thereafter, MUD filed several 

motions for summary judgment. As relevant to these appeals, 

the parties offered evidence with respect to MUD’s claim 

of immunity.

Following a hearing, the district court denied MUD’s 

motions for summary judgment. As is relevant on appeal, the 

district court reasoned that

both the statute and MUD’s own policies provide detailed 

instructions for employees on how facilities are to be 

located, marked, and documented, thereby eliminating 

any discretion.

. . . To the extent MUD argues that the locators exercised their judgment in how and where to mark the gas 

line at issue, the Court finds this was a “discretionary 

act at an operational level, where there is no room for 

policy judgment” to which the discretionary exception 

does not apply.

The court continued that “[e]ven if the Court determined that 

MUD did have an element of judgment in how its employees 

located, marked, [and] documented its facilities, as well as how 

it handled abandoned gas lines, the Court finds these actions 

are not the kind that the discretionary function was designed 

to shield . . . .”

MUD appeals.

ASSIGNMENTS OF ERROR

MUD assigns, in all four appeals, that the district court 

erred in denying its motion for summary judgment on the basis 

of immunity under the discretionary function exception to 

the PSTCA 3.

STANDARD OF REVIEW

[1] Whether a plaintiff’s negligence claims are precluded 

by an exception to the PSTCA is a question of law for which 

3 See id.
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an appellate court has a duty to reach its conclusions inde

pendent of the conclusions reached by the district court. 4

[2] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 5

ANALYSIS

Jurisdictional Note.

As an initial note, we have jurisdiction over this appeal 

under Neb. Rev. Stat. § 25-1902(1)(d) (Supp. 2019). That 

section includes, in the definition of a final order from which 

an appeal may be taken, “[a]n order denying a motion for 

summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official.” 6

Immunity.

The primary issues presented by this appeal are whether 

MUD is immune from suit as to its prefire actions in locating the relevant gas lines and in failing to abandon a gas line 

that previously serviced the Mercer Building, and also as to 

its postfire actions related to turning off the gas line servicing 

the Mercer Building. The district court denied MUD’s motion 

for summary judgment, in which MUD had argued that it was 

immune from suit under the discretionary function exception 

to the PSTCA.

For the reasons set forth below, we affirm the decision of 

the district court. In so affirming, we note that the sole issue 

presented to this court on appeal is whether MUD was entitled 

to immunity from suit, and accordingly, this court considers the facts only to the extent it is necessary to determine 

4 See Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 

(2018).

5 Kaiser v. Allstate Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).

6 § 25-1902(1)(d).
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whether the allegations against MUD were protected by the 

discretionary function exception to the PSTCA. We are not 

presented with, nor do we opine upon, the merits of the underlying litigation.

The PSTCA operates to waive the immunity of political subdivisions, but is subject to exceptions as set forth in 

§ 13-910. Section 13-910(2) provides that the PSTCA does 

not apply to “[a]ny claim based upon the exercise or perform

ance of or the failure to exercise or perform a discretionary 

function or duty on the part of the political subdivision or an 

employee of the political subdivision, whether or not the discretion is abused.”

[3,4] The purpose of the discretionary function exception is 

to prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political 

policy through the medium of an action in tort. 7 The discretionary function exception extends only to basic policy decisions 

made in governmental activity, and not to ministerial activities 

implementing such policy decisions. The exception does not 

extend to the exercise of discretionary acts at an operational 

level. 8 Examples of discretionary functions include the initiation of programs and activities, establishment of plans and 

schedules, and judgmental decisions within a broad regulatory 

framework lacking specific standards. 9

[5] A court engages in a two-step analysis to determine 

whether the discretionary function exception to the PSTCA 

applies. 10 First, the court must consider whether the action 

is a matter of choice for the acting employee. 11 If the court 

concludes that the challenged conduct involves an element 

of judgment, it must then determine whether that judgment 

7 Kimminau v. City of Hastings, 291 Neb. 133, 864 N.W.2d 399 (2015).

8 Id.

9 Id.

10 Id.

11 Id.
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is of the kind that the discretionary function exception was 

designed to shield. 12

[6] But 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. 13 In such a situation, a governmental entity’s failure to 

warn or take other protective measures is not a planning-level 

decision involving a social, economic, or political policy judgment and, therefore, does not come within the discretionary 

function exception of the PSTCA. 14

The One-Call Notification System Act is relevant to the 

nature of MUD’s assertion of immunity. The intent of the OneCall Notification System Act is

to establish a means by which excavators may notify 

operators of underground facilities in an excavation 

area so that operators have the opportunity to identify and locate the underground facilities prior to excavation and so that the excavators may then observe 

proper precautions to safeguard the underground facilities from damage. 15

Moreover, “[i]t is the purpose of the One-Call Notification 

System Act to aid the public by preventing injury to persons 

and damage to property and the interruption of utility serv

ices resulting from accidents caused by damage to underground facilities.” 16

12 Id.

13 Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80 

(1993).

14 Id.

15 § 76-2302(1).

16 § 76-2302(2).
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In order to accomplish this purpose, the participating utilities must comply with § 76-2323:

(1) Upon receipt of the information contained in the 

notice pursuant to section 76-2321, an operator shall 

advise the excavator of the approximate location of underground facilities in the area of the proposed excavation by 

marking or identifying the location of the underground 

facilities with stakes, flags, paint, or any other clearly 

identifiable marking or reference point . . . .

This court has previously discussed what qualifies as a 

discretionary function for purposes of that exception to the 

PSTCA. Recently, in Lambert v. Lincoln Public Schools,

 17 we 

concluded that the decision to enforce an elementary school’s 

“no dogs” policy only during the schoolday was a discretionary function and that the school district was immune from 

suit under the PSTCA when it did not supervise a school 

playground after school hours. We reasoned that school administrators were given broad discretion to place restrictions on 

the use of school buildings and grounds, and also in utilizing 

staff to supervise school grounds, because such decisions were 

grounded in social, economic, and political policy. 18

Conversely, in Kimminau v. City of Hastings,

 19 we held that 

the failure to remove corn mash from the side of the road was 

not protected from liability by virtue of the discretionary function exception to the PSTCA. We noted that the maintenance 

of roads and highways was not a matter of choice, but was 

required under state law. We reasoned that specific actions to 

undertake a duty to maintain the roads were not policy decisions, but were ministerial acts at the operational level pursuant to the statutory duty to maintain roads, and thus were 

not immune under the discretionary function exception to 

the PSTCA.

17 Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 (2020).

18 Id.

19 Kimminau v. City of Hastings, supra note 7.
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In Lemke v. Metropolitan Utilities Dist.,

 20 we found that the 

discretionary function exception was not applicable and that 

MUD had a nondiscretionary duty to warn its customers that 

a flexible natural gas connector linking their range to a gas 

line was defective, even if MUD did not provide the connector. We observed that the failure to warn in the instance where 

the governmental entity had notice of a dangerous condition 

and the dangerous condition was not readily apparent was 

not a planning-level decision involving a social, economic, or 

political policy judgment falling within the discretionary function exception.

Marking of Gas Line.

We turn first to whether the marking of the gas lines in 

question was a matter of choice for the MUD locators. We 

conclude that it was not. Section 76-2323 is clear that MUD 

and Nebraska One-Call’s other members have a duty to “advise 

the excavator of the approximate location of underground 

facilities in the area of the proposed excavation by marking 

or identifying the location of the underground facilities with 

stakes, flags, paint, or any other clearly identifiable marking or 

reference point.” MUD’s own locating manual also emphasizes 

this necessity.

Our decision in Lemke informs of this duty. There, we considered whether MUD had a nondiscretionary duty to warn, 

considering first, whether it had actual or constructive notice 

of a dangerous condition or hazard caused by or under the 

control of the governmental entity, and second, whether the 

dangerous condition or hazard was readily apparent to persons who are likely to be injured by the dangerous condition 

or hazard. 21

MUD argues that the HDD was the dangerous condition 

or hazard and that because it was being performed by NCS, 

it was not under MUD’s control. We disagree. While HDD is 

20 Lemke v. Metropolitan Utilities Dist., supra note 13.

21 Id.
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undoubtedly a dangerous activity, any danger was a result of 

the potential for striking buried utility lines. Those lines are 

under MUD’s sole control. The record demonstrates that the 

buried gas lines servicing the Mercer Building were known 

to MUD and were under MUD’s control but, because of their 

buried nature, were not readily apparent to the excavators who 

eventually struck the lines.

While we agree that some discretion is given to MUD in 

how these lines are marked, there is no discretion—as set forth 

by the applicable state statutes, the excavator manual, MUD’s 

own locating manual, and the test set forth in Lemke—with 

respect to the ultimate responsibility to mark the lines. As such, 

MUD’s marking of the lines was not a matter of choice for 

purposes of the discretionary function exception.

To the extent that there was discretion given to MUD locators as to the method of marking used by MUD, such discretion 

is not of the social, economic, or political policy that the discretionary function exception was designed to protect. Rather, 

the method the MUD locator used to mark the gas lines in 

question is the type of operational discretion not protected by 

the discretionary function exception.

Gas Shutoff.

We conclude the same as to allegations that MUD failed 

to timely shut off the gas and to properly abandon the out-ofservice gas line outside of the Mercer Building.

MUD’s own gas emergency procedure requires MUD to 

respond to emergencies and, upon request, shut off the natural gas; one MUD employee testified in a deposition that in 

responding to a gas fire, the number one priority is to shut off 

the gas “as quickly as possible.” The exercise of this action 

was not a matter of choice.

We note MUD contends that while at the fire, its employees were acting in emergency conditions and their actions 

should be reviewed in light of those conditions. MUD takes 

issue with the appellees’ listing of all of MUD’s perceived 

wrongs at the scene and suggests that those are the types of 
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discretionary acts made in an emergency that should not be 

second-guessed.

But we read the appellees’ primary assertion to be that MUD 

had a duty to turn off the gas as soon as possible and that as 

a result of its various deficiencies at the scene, MUD failed to 

do so. Regardless of the emergency—indeed because of the 

emergency—for purposes of the discretionary function exception, MUD had no choice as to whether it needed to turn off 

the gas in a timely manner. As such, the discretionary function 

exception is inapplicable.

Abandonment of Old Gas Line.

Finally, with respect to the improperly abandoned gas line, 

there was testimony that upon discovering this line, the locator, Sacco, had a responsibility to tell a supervisor that the line 

had not been properly abandoned. MUD’s locating manual sets 

forth the procedure to be followed in this event. Where service 

records are in need of correction, the locating manual provides 

that a locator “shall” call it into dispatch or fill out forms 

reporting the error. In addition, MUD has a separate procedure 

manual for use in the event that it needed to abandon a gas 

line. This, also, was not a matter of choice, and the discretionary function exception does not provide immunity. There is no 

merit to MUD’s assignments of error.

CONCLUSION

We find no error in the district court’s denial of summary 

judgment in each case finding that MUD was not immune 

from suit. That the gas lines were to be clearly marked, the 

gas to be shut off by MUD in the event of a gas fire, and the 

gas lines to be properly abandoned were not matters of choice. 

Each was required, at a minimum, by our case law regarding 

dangerous conditions and by MUD’s own policies, and were 

not protected by the discretionary function exception to the 

PSTCA. As such, in each case, the decision of the district 

court is affirmed.

Affirmed.