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A fairly routine personal injury lawsuit under review by the Nebraska Supreme Court has the full attention of fire departments and other emergency first responders.

The ruling could ultimately cause local governments and state law enforcement to reexamine who determines whether a road is safe to drive on following an accident or emergency.

The case began when a woman injured in a traffic accident near Hastings sued the fire department for allegedly failing to properly remove a sloppy spill of corn mash covering the road. At issue is whether state law protecting local governments from certain lawsuits applies in this and similar cases

“That decision will be very interesting,” said Jim Egr, the chief legal counsel for the Nebraska State Volunteer Firefighters Association.
Depending on the justices’ final opinion, the case could prompt local first responders to reexamine procedures for determining if a road or emergency scene is safe for the public.

Police, firefighters and highway workers sometimes struggle with assigning responsibility for which individual or agency ultimately controls an emergency scene and who gives an “all clear.”

“There is no specific state statute that addresses that,” Egr said. “I’m hoping we get some guidelines.”

The case has its roots in a pair of accidents on Showboat Boulevard, southeast of Hastings.

Nebraska State Trooper Monte Dart had stopped a speeder by the side of the road. While writing the ticket a semi driver carrying an uncovered load of corn mash from a nearby ethanol plant apparently saw the patrol car’s flashing lights and hit the brakes. A wave of the liquid cargo sloshed over the truck’s cab and covered the road.

Trooper Dart’s dashboard video camera picks up his radio call to the dispatcher asking for help, requesting “Hastings Rural Fire bring something to wash it off,” adding the spill was “covering both lanes of traffic.” The video shows a thick, bright yellow blanket of the sludge spread from shoulder to shoulder for about 100 feet.

Corn mash is a leftover byproduct of making ethanol and is frequently used as cattle feed.

Members of Hastings Rural and the City of Hastings fire departments responded and according to court documents “the corn mash was shoveled off and swept off the roadway and washed with fire hoses.” The material was not removed from the scene, but apparently was mostly pushed off to the shoulder of the road.

After giving the truck driver a ticket, Trooper Dart inspected the roadway to make sure it was clear, and safe, and made the decision to reopen the roadway.

The lawsuit focuses on what happened the next day.

Kaelynn Kimminau headed out on her Hastings Tribune delivery route when she drove through the same spot where the corn mash spill had occurred the day before.
“I hit it. My back tire went on the shoulder and I lost control and slid all over the place,” Kaelynn remembers. The car ended up in the ditch on its side. She was still in the car, but her arm was pinned outside the driver’s side window. Her arm was badly injured and she claims it remains painful to this day.

Pictures taken by a photographer from the Tribune at the accident scene show a large amount of the yellow corn mash that had been pushed onto the shoulder of the road had returned to the pavement.

Wayne Kimminau remembers seeing the mash on the road when he arrived at the scene of his wife’s accident.

“As I am running up there I actually slipped on it,” Wayne said. He says the accident report filed by police states the corn mash was the cause.

“There’s really no reason that it had to happen,” Wayne said.

“I don’t feel I was responsible at all,” Kaelynn added. “If it would have been cleaned up better, maybe, it wouldn’t have happened.”

Mr. and Mrs. Kimminau filed a lawsuit placing responsibility with the truck driver from R Lazy K Trucking. The suit also claims Adams County, the Hastings Fire Department and the volunteer department responding to clean up the spill “negligently supervised others involved in the failed attempt to clean up the dangerous condition.”

“We argued that because they had notice of the spilled corn mash they had the opportunity to potentially get rid of any possible hazard,” said Scott Pauley, the Kimminau’s attorney. “The other side was trying to argue they didn’t have notice the corn mash had migrated back on to the road.”

Adams County District Court Judge Terri Harder threw the case out before it even got to trial. She ruled the political subdivisions were protected from any lawsuit under state statute. The law says you can’t suit about a problem with the condition of a street if the people responsible didn’t know there was a problem to fix.

While the Kimminau’s attorney argued Hastings had been given notice the day before, the District Court judge ruled this was a new problem and no one had called in to let anyone know the corn mash had made its way off the shoulder and back onto the road.
The Kimminaus appealed. Enter the Nebraska Supreme Court.

Attorneys for all sides presented oral arguments to the court in early March. (Listen to the arguments)

Vincent Valentino represented the City of Hastings. Its fire department responded as part of a mutual aid agreement with the volunteer-run Hastings Rural Fire Department. Valentino declined to be interviewed for this story, but in his presentation to the court, the attorney argued the legal “notice” of a defect, in this case the corn mash, should not extend past when the Nebraska State Trooper originally determined the roadway was properly cleaned and safe for traffic.

The court’s decision on when and how “notice” applies to these types of cases will be a factor in determining if the agencies being sued are protected from the lawsuit under state law.

“Twenty-four hours elapsed between the time of the original defect” and the Kimminau accident. Valentino argued the scene had been “cleaned up (and) no notice given any political subdivision in that next 24-hour period until this accident.”

The corn mash returning to the road should be considered “a new defect” requiring a new alert to authorities, according to Valentino.

Some of the judges hearing the case appeared skeptical of that argument. When Judge John Wright asked Valentino if the firefighters and road workers who pushed the corn mash off to the side had properly exercised their duty to clean the road. Valentino replied with his own question.

“Is the duty supposed to be do something other than take it off the travel portion of the highway?” he asked.

Judge Wright replied he felt it might be “if it’s foreseeable that it could come back on the highway and cause an accident.”

It will be up to the judges to decide in their ruling if there is some duty on the part of first responders to foresee a hazard that might occur after they have determined an emergency scene is safe for the public. An opinion is expected sometime this summer.

Since this particular issue has never been brought to court before, this is a case that will set precedent no matter what the ruling.

“What makes it unique is the political subdivision actually had notice of what ultimately caused the accident,” Pauley said. Few lawsuits get past the notion that notice of a problem is iron-clad protect against lawsuits for local government.

“There’s been no other cases in Nebraska or for that matter in many other states that have analyzed the issue,” Pauley said.

The state law giving limited immunity to state and local government agencies was originally designed to protect local officials and taxpayers from being targets of certain lawsuits viewed as frivolous or opportunistic.

“I think it’s a good thing,” said Egr, who is both an attorney and one time volunteer firefighter in David City. “Political subdivisions (and) taxpayers, you and me, pay the insurance premiums. If political subdivisions get sued too much and aren’t protected that has an effect on taxpayers.”

Pauley says a ruling from the Supreme Court favoring the Kimminaus will have a broader impact.

“It will cause the state and other entities to pay more attention to the procedure they use to clean up spills and it will make the roadways safer for people in Nebraska,” Pauley said.

In her original lawsuit filed in 2009, Kaelynn states her medical bills exceeded $80,000 and she was unable to keep her job. While her hand remains functional, a portion of her arm muscle was amputated and remains painful.

“It’s never going to be normal,” Kaelynn said.

If the Supreme Court determines the city and Adams County are not immune from legal action in this case the Kimmineau’s could return to District Court for a trial. In that venue arguments would be heard about the actual cause of the accident. Court documents filed earlier raise the possibility attorneys will argue speed or distracted driving caused or contributed to the accident.