Of all things, a corn mash spill could make it easier to sue your Nebraska fire department

The corn mash is in the foreground.

Pick it up, clean it up, do it right and keep it safe. Local governments in Nebraska… from city hall to your volunteer fire department… will need to make sure hazards on roads and public spaces get taken care of completely.   

In a ruling issued today the Nebraska Supreme Court narrowed the protection of immunity local government has against personal injury lawsuits.

I covered the story of Kaelynn Kimminau of Hastings this spring for NET News. The Adams County District Court threw out her lawsuit against the City of Hastings fire department and its rural volunteer counterpart. She claimed they hadn’t properly cleaned corn mash spilled from an open truck picking up the sloppy leftovers from a local ethanol plant. Firefighters on the scene had pushed the corn mash off to the shoulder. The accident occurred a full day after the original spill.

Did the fire department act negligently? In its opinion the Supreme Court says at the very least the judge in Adams County should not have dismissed the case even before hearing the evidence. The court ruled local governments do not have immunity from lawsuits when an emergency scene clean up may have been responsible for later injuries or harm. 

As the justices wrote in today's opinion, they don’t read state statute covering these matters “as provid­ing immunity to a political subdivision with respect to a claim alleging it took inadequate measures to repair a spot or localized defect of which it had notice.” 

In this case, the firefighters had been told of the problem the day before the accident. The possibility they didn’t clean the corn mash mess at the time takes away automatic protection from lawsuits. The implications? Attorneys NET spoke with before today’s ruling wondered if a ruling against the City of Hastings would mean in the future it could apply to emergency crews not picking up debris from a traffic accident or not making full repairs on a public building.

The case has been sent back to Adams County District Court where Kaelynn Kimminau will have the opportunity to argue the City of Hastings was the blame for the accident. That has not been resolved.  In fact the Supreme Court justices made the point of adding:

We do not comment on the merits of the Kimminaus’ claims against the political subdivisions, includ­ing questions with respect to duty, as those issues have not yet been addressed by the district court.

Read the court’s full opinion HERE.

Questionable Nebraska Autopsy Deserves Civil Trial

For over five years a Lincoln, Neb. day care provider felt she deserved an explanation for why she was wrongly accused of felony child abuse. She may now get her day in court.

A pathologist used over the years by a number of Nebraska law enforcement agencies will have to defend himself against accusations he botched an autopsy that lead to criminal charges being filed against a Lincoln women.   

The Nebraska Supreme Court ruled today, Carla McKinney had sufficient cause to have her day in court.  

McKinney ran a day care out her home for more than 20 years.  In 2009  a 6-week-old infant died in her care.  Dr. Matthias I. Okoye performed an autopsy and determined the baby had died of “blunt force trauma to the head.”   The Lancaster County Attorney charged McKinney with felony child abuse resulting in death, but dropped the charges a year later. Medical experts she had hired discovered the baby had actually died of Sudden Infant Death Syndrome, rather than from any injury.  They found the doctor’s autopsy “shockingly” misrepresented the cause of the baby’s death. McKinney sued Okoye for malicious prosecution.  

Okoye successfully kept the case from going to trial in District Court.  Today, the Nebraska Supreme Court said McKinney should be allowed to present her case.  The Supreme Court justices felt there was “evidence of reckless disregard for established pathology procedures could lead to the inference that Okoye was unconcerned with establishing a truthful report.”   

The District Court judge who threw the case out, according to the high court, should have let the evidence be heard so a jury could have decided if Dr. Okoye had acted irresponsibility when he filed the autopsy report with the County Attorney.

The Lancaster County (Neb.) County Attorney's Office ended its contract with Okoye in  2009.  He still serves as president of the business he founded, the Nebraska Institute of Forensic Science.

No Jail Likely In Deadly Cantaloupe Case

Eating cantaloupe made six Nebraskans very, very sick. 

One 81 year-old-man from Chadron died.  

The Colorado farmers who grew fruit tainted with Listeria will be in Federal District Court in Denver later this month for sentencing.  The brothers who own Jensen Farms, Eric and Ryan Jensen, were charged with six criminal counts of selling an adulterated food in 2011.  

According to TheGrower.com, a news site for the produce industry, the Jensen brothers struck a deal with the U.S. Attorney that will keep the farmers out of jail.  They could have been sentenced up to six years in federal prison.

Distribution of cantaloupe food poisoning cases. (Map: CDC)

The food poisoning outbreak prompted a massive investigation by the Centers for Disease Control to trace the source of the bacteria that killed 33 people and sickened another 147 in 28 states.  The CDC traced it back to melons grown on the Jensen's Colorado farm.

(Read the summary of the investigation here) 

Among the dead was George Drinkwater of Chadron, Neb. who ate the tainted melon for breakfast a couple of days in a row.  TheGrower.com reports there are currently 66 civil lawsuits pending across the country, filed by victims and their family members against the Jensens, distributor Frontera Produce, a food safety auditing company, PrimusLabs, and grocery stores that sold the cantaloupe, including WalMart. 

The Jensens filed their own lawsuit against Primus claiming they would not have shipped their fruit if the auditor had done its job and reported back that their operation was not up to standards.