Turner v. Northern Illinois Gas Company

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-0878 Rel

Case Date: 04/28/2010

Preview:No. 2-08-0878 Filed: 4-28-10 _________________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________________________ NANCY TURNER and STEFANIE TURNER, ) Appeal from the Circuit Court ) of Winnebago County. ) Plaintiffs-Appellants, ) ) v. ) Nos. 02--L--243 ) 04--AR--174 NORTHERN ILLINOIS GAS COMPANY, ) d/b/a Nicor Gas Company, ) ) Defendant-Appellee ) ) Honorable (American Family Mutual Insurance ) J. Edward Prochaska, Company, Plaintiff). ) Judge, Presiding. _________________________________________________________________________________ JUSTICE BURKE delivered the opinion of the court: On May 28, 2002, plaintiffs, Nancy Turner and her teenage daughter, Stefanie Turner, were seriously injured when a natural gas explosion destroyed their rental home. Case number 02--L--243 is a personal injury case that plaintiffs filed against defendant Northern Illinois Gas Company, d/b/a Nicor Gas Company, which had supplied and regulated the gas supply to the building. Case number 04--AR--174 is a subrogation action that American Family Mutual Insurance Company (American Family) filed against defendant to recover sums American Family paid to or on behalf of its insured, Nancy Turner, for personal property damages she incurred from the explosion. Plaintiffs' fifth amended complaint alleged that defendant was negligent for failing to thoroughly inspect the gas piping in their basement and to warn plaintiffs of any risk posed by the

No. 2--08--0878 condition of the piping. Before the date of the explosion, plaintiffs neither detected nor alerted defendant to a possible gas leak. However, plaintiffs alleged that defendant received constructive notice of a problem when defendant's employee was at the premises on a service call 17 months before the explosion. The trial court granted defendant summary judgment on the ground that defendant owed no duty to inspect for the defect or to warn plaintiffs. We affirm. FACTS Plaintiffs were residing at 2025 Eggleston Road in Rockford on May 28, 2002, when they were seriously injured by the natural gas explosion, which destroyed the building. Natural gas is odorless in its original state. The chemical ethyl mercaptan, which is a sulfur component, is added as an odorant to give natural gas its distinctive smell so leaks can be detected more easily. On the night before the explosion, Stefanie, who was a junior in high school at the time, arrived home at 10:30 p.m. She detected a faint odor when she walked into the home, but she did not identify it as natural gas because she did not know what natural gas smells like. The odor seemed to come from the kitchen, so Stefanie believed it was from something her mother had cooked. Nancy was in bed at the time, and Stefanie went to bed also. On May 28, 2002, Nancy woke up around 6:30 a.m. and smelled what she thought was natural gas. Nancy knew that a gas leak created a risk of fire or an explosion. Stefanie recognized the odor as the same she had detected the night before, but the smell had grown much stronger. Following the odor, Nancy and Stefanie descended the basement stairs. Stefanie stated in her affidavit that the staircase was enclosed. The basement was unfinished, but Nancy had placed a bed in the southeast corner of the basement for her son to use when he came home from college. At the bottom of the stairs, various natural-gas-fueled appliances were ahead and to the right in the

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No. 2--08--0878 northwest corner of the basement. Nancy turned left and heard a hissing noise and saw a broken pipe in the ceiling of the southeast corner above the bed. According to Stefanie, if a person stood near the appliances in the northwest corner, the staircase would block the view of the southeast corner where the leak occurred. Nancy described the pipe as hanging in a "V" shape and separated at the bottom. Stefanie saw that the break in the pipe appeared to be directly below the gas stove in the kitchen upstairs. The break was in a long stretch of pipe that appeared to have broken at a connection point. Nancy told Stefanie that they needed to get out of the house. Nancy walked up the stairs to call 911, and Stefanie walked to the laundry area of the basement to retrieve a pair of pants to wear. Nancy testified that the explosion occurred right after she dialed the "9" on the telephone. Stefanie testified that she had reached the foot of the basement stairs when she heard a tick and the house blew up. Nancy was thrown to the front yard, and her left leg was broken in four places and a portion of her foot was severed completely. Nancy also suffered a fractured right clavicle and a collapsed lung. Stefanie felt intense heat during the explosion and could not free herself from the rubble because her right foot was trapped. Stefanie screamed and was helped by neighbors. Stefanie suffered a collapsed lung and severe burns to her arms, hands, abdomen, and back. The explosion was traced to the gas leak in the exposed pipe in the southeast corner of the basement. Following the explosion, Mark Marinaro, a fire scene investigator for the City of Rockford, investigated the scene. Jerry Roberts, one of defendant's representatives, told Marinaro that the gas supplied to plaintiffs' residence contained the odor additive. Marinaro testified at his deposition that he did not know whether there was any deficiency in the gas piping. Marinaro concluded that

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No. 2--08--0878 defendant's exterior gas meter was not involved in the gas leak at plaintiffs' residence and that no other residence on the street had been leaking gas. Marinaro concluded that the source of the ignition was either the furnace or the water heater and that the explosion was caused by a single leak in the broken pipe that Nancy had identified. The parties submitted evidence of the installation and maintenance of the gas piping. In 1995, Maynard Jarl built the duplex at 2023-25 Eggleston Road. Warren Plumbing Company installed the interior plumbing and gas lines. In 1998, the City of Rockford sent Latisha Cardeno, a building inspector, to evaluate the building. Cardeno's inspection ticket does not show any code violations or problems with the gas piping. On December 5, 2000, Carol Miranda resided at 2025 Eggleston and called defendant to report that she had no gas or hot water. Defendant's technician Gerald Dray determined that the exterior gas meter was "stuck" and would not send gas to the residence. Dray performed the ordinary repair for the problem. He turned off the gas service, replaced the meter, reactivated the gas service, and went inside to relight the pilot lights on the gas-fueled appliances, including the furnace and the water heater in the basement. Plaintiffs introduced evidence of service calls to the adjacent apartment, which was a mirror image of plaintiffs' residence. On May 18, 1999, Cindy Sommers called defendant about an odor from her range at 2023 Eggleston. The record of the service call contains the note "Left Range Valved Off," which indicates that the technician must have found a condition hazardous enough to warrant shutting off the appliance. The technician left a hazard tag on the range, and a copy of the tag would have been returned to defendant.

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No. 2--08--0878 On February 1, 2001, which was just two months after the meter replacement at 2025 Eggleston, Sommers reported poor gas pressure at 2023 Eggleston. Defendant's technician

responded to the call and determined that Sommers' meter also was stuck. The meter was replaced. Plaintiffs moved into 2025 Eggleston on March 1, 2001. Until the explosion on May 28, 2002, plaintiffs' only contact with defendant was to initiate gas service. In 2002, plaintiffs filed a complaint against Jarl, who was the owner and general manager of the premises, and against Warren Plumbing Company, which had installed the gas piping. Plaintiffs alleged that their interior gas piping had been installed negligently and had caused the explosion. In 2004, plaintiffs added defendant to the suit. Plaintiffs settled with Jarl and Warren Plumbing Company and filed a fifth amended complaint, against defendant alone. The fifth amended complaint alleged the negligent operation of defendant's gas facilities, such as meters, and negligent failure to inspect or to warn plaintiffs about the condition of the customerowned interior gas piping. Plaintiffs alleged that, "for some time" before the explosion, the gas piping created hazardous conditions, including the following: the gas lines were not piped according to particular codes; the pipes lacked adequate hangers; the hangers were insufficiently spaced; the pipes were connected with improper couplings and bushings; at least one of the pipes was cross-threaded; a pipe was uncapped; and a pipe in the basement was not properly affixed to the ceiling. Plaintiffs alleged that defendant knew or should have known of these hazardous conditions. Plaintiffs allege that defendant owed and breached duties (1) "to inspect, maintain, and regulate the gas service at 2025 Eggleston Road in Rockford, Illinois in a reasonably safe manner for the safety of its users, in particular the plaintiffs" and (2) "to warn the plaintiffs *** of any dangerous and/or hazardous conditions related to the gas lines, gas meter, gas service and/or gas appliances" that

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No. 2--08--0878 defendant knew or should have known were present. Plaintiffs alleged that defendant acted negligently and proximately caused the injuries by inadequately inspecting the premises, failing to correct the dangerous conditions, failing to warn plaintiffs of the risk, and failing to provide adequate gas service. Defendant moved for summary judgment under section 2--1005 of the Code of Civil Procedure (735 ILCS 5/2--1005 (West 2008)). Plaintiffs abandoned their allegation of negligent operation of defendant's gas facilities, but they defended their claim for negligent failure to inspect or to warn plaintiffs about the interior gas piping. In its motion for summary judgment, defendant argued that (1) none of defendant's equipment caused the explosion and (2) defendant owed plaintiffs no duty under common law and, even if any common-law duty existed, it was disclaimed by the tariff defendant had filed with the Illinois Commerce Commission (ICC). A tariff is a public document setting forth the services being offered; the rates and the charges for the services; and the governing rules, regulations, and practices relating to those services. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 55 (2004). The Public Utilities Act requires public utilities such as defendant to file tariffs with the ICC. 220 ILCS 5/9--102 (West 2008); Adams, 211 Ill. 2d at 55. A tariff is usually drafted by the regulated utility, but when duly filed with the ICC, it binds both the utility and the customer and governs their relationship. Adams, 211 Ill. 2d at 55. Once the ICC approves a tariff, it " 'is a law, not a contract, and has the force and effect of a statute.' " Adams, 211 Ill. 2d at 55, quoting Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc., 67 Ill. App. 3d 435, 439 (1978), aff'd, 78 Ill. 2d 56 (1979). Defendant's tariff on file with the ICC provides in relevant part as follows: "Equipment Furnished and Maintained by Customer

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No. 2--08--0878 All gas utilization equipment, piping, and vents furnished by the customer shall be suitable for the purposes hereof and shall be installed and maintained by the customer at all times in accordance with accepted practice and in conformity with public health and safety, as set forth by the properly constituted authorities and by the company. The company assumes no responsibility in connection with the installation, maintenance or operation of the customer's equipment and reserves the right to discontinue service if such equipment is in unsatisfactory condition." Such tariff provisions are usually referred to as liability limitations. Adams, 211 Ill. 2d at 56. The underlying theory of liability limitations is that, because a public utility is strictly regulated, its liability should be defined and limited so that it can provide service at reasonable rates. A reasonable rate depends in part on a rule limiting liability. Adams, 211 Ill. 2d at 57. The goal of a tariff is to secure reasonable and just rates for all without undue preference or advantage to any; and because that end is attainable only by adherence to the approved rate, based upon an authorized classification, that rate represents the whole duty and the whole liability of the company. Adams, 211 Ill. 2d at 57. The trial court granted defendant summary judgment on the basis that defendant owed no duty to inspect the interior gas piping for defects or to warn plaintiffs. The trial court identified several undisputed facts. Defendant did not install, own, or have any control over the interior pipes or fixtures on plaintiffs' premises. Defendant was not responsible for the condition of plaintiffs' interior pipes or fixtures. Defendant never received a report of a gas leak at plaintiffs' premises. Defendant had no actual notice of a defect in plaintiffs' interior pipes or fixtures. First, the court held that "the gas company in the present case had absolutely no notice of the defect in plaintiffs' interior piping, actual or constructive" and "the mere presence of [defendant's]

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No. 2--08--0878 employee in plaintiffs' basement did not provide notice of the problem *** nor did it create a duty to inspect the interior piping in the basement." Second, the court ruled that defendant owed plaintiff no duty of care to inspect the premises, because the explosion was not reasonably foreseeable. Third, the court held that defendant's internal policies did not create a duty to inspect, despite plaintiffs' allegations. Fourth, the court ruled that defendant's tariff had the force and effect of law and that it disclaimed any responsibility in connection with the installation, maintenance, or operation of plaintiffs' equipment. ANALYSIS Plaintiffs' fifth amended complaint alleges that defendant was negligent for failing to inspect the interior pipes in plaintiffs' basement during a service call 17 months before the explosion. During the service call, the technician replaced a "frozen" or "stuck" exterior gas meter and, as part of his job, went into the basement of plaintiffs' home to restart the pilot lights on several natural-gaspowered appliances. Under plaintiffs' theory, the technician should have recognized that the pipes in another area of the basement had been installed incorrectly so as to create a dangerous condition and he then should have turned off the gas supply and warned plaintiffs of the risk, even though there was no evidence of a leak at that time. The trial court concluded that defendant owed no such duty to inspect. On appeal, plaintiffs argue that, construed most favorably to them, the record supports the conclusion that defendant owed plaintiffs a duty to inspect the premises, to warn of the risks, and to exercise reasonable care in its provision and regulation of the gas service. Plaintiffs contend that (1) defendant's tariff did not foreclose a duty under common law; (2) defendant had constructive notice of the defect and therefore owed plaintiffs a duty; (3) defendant owed plaintiffs a duty even though

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No. 2--08--0878 defendant neither caused nor contributed to the defect; and (4) the likelihood and foreseeability of an injury to plaintiffs outweighed any burden associated with defendant's duty. Plaintiffs argue that summary judgment was precluded by a genuine issue of material fact as to whether defendant had constructive notice of the gas piping defects at the premises. For the reasons that follow, we conclude that the trial court correctly granted defendant summary judgment because defendant had neither constructive nor actual knowledge of the defect, and therefore defendant did not owe plaintiffs a duty to inspect the piping, warn of the risk, or repair any defect in the piping. Our conclusion that defendant owed no common-law duty obviates the need to consider plaintiffs' argument regarding defendant's tariff. In a negligence action, the plaintiff must provide sufficient facts showing the existence of a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from the breach. Klitzka v. Hellios, 348 Ill. App. 3d 594, 596 (2004), citing Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991). The existence of a duty is a question of law for the court to decide, but the issues of breach of that duty and of proximate cause are factual matters for a jury to decide. Adams, 211 Ill. 2d at 43-44. There can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. Adams, 211 Ill. 2d at 44. Duty is a question of whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. Adams, 211 Ill. 2d at 44. In determining whether a duty exists, a court looks to certain relevant factors, including: (1) the reasonable foreseeability that the defendant's conduct may injure another; (2) the likelihood of an injury occurring; (3) the magnitude of the burden of guarding against such injury; and (4) the consequences of placing that burden on the defendant. Adams, 211 Ill. 2d at 44.

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No. 2--08--0878 "Where the plaintiff fails to provide facts 'from which the court could infer the existence of a duty,' summary judgment for the defendant is appropriate." Klitzka, 348 Ill. App. 3d at 596, quoting Vesey, 145 Ill. 2d at 411. In all appeals from the entry of summary judgment, we conduct a de novo review of the record. Klitzka, 348 Ill. App. 3d at 596-97, citing Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). The purpose of summary judgment is not to try a question of fact but, rather, to determine whether a genuine issue of material fact exists. Adams, 211 Ill. 2d at 42-43. Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2008); Klitzka, 348 Ill. App. 3d at 597. In reviewing a grant of summary judgment, this court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the nonmoving party. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact. Espinoza, 165 Ill. 2d at 114. If a party moving for summary judgment introduces facts that, if not contradicted, would entitle him to a judgment as a matter of law, the opposing party may not rely on his pleadings alone to raise issues of material fact. Klitzka, 348 Ill. App. 3d at 597, citing Hermes v. Fischer, 226 Ill. App. 3d 820, 824 (1992). The summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit. Adams, 211 Ill. 2d at 43. However, summary judgment is a drastic means of disposing

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No. 2--08--0878 of litigation that should not be granted unless the movant's right to judgment is clear and free from doubt. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). Natural gas is a dangerous substance when it is not under control. A gas company is not liable as an insurer for injuries sustained as the result of the escape of gas but, rather, for its negligence in permitting the gas to escape. Adams, 211 Ill. 2d at 45. Expressions of the degree of care that a gas company must exercise range from "reasonable" to "high," and the variety of expression simply means that the degree of care to prevent the escape of gas from its pipes must be proportional to the level of danger that the company must avoid. Adams, 211 Ill. 2d at 45. Although a gas company must exercise the requisite degree of care so that no injury occurs in the distribution of gas while it is under the company's control, such responsibility is limited to when the gas is in the company's own pipes. Adams, 211 Ill. 2d at 46, citing Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 826-27, 154 P.2d 498, 504 (1944). In Illinois, the seminal example of the common-law rule pertaining to gas distribution in a consumer's pipes and fixtures is Clare v. Bond County Gas Co., 356 Ill. 241 (1934). In Clare, the plaintiff operated a shop in a building that had been piped for natural gas. Clare, 356 Ill. at 242. In 1931, the natural gas delivered to the building was odorless. Clare, 356 Ill. at 243. The plaintiff bought a gas stove for heat and hired a plumber to install it. After the installation, the plaintiff noticed an offensive odor that gave her a headache and irritated her eyes and respiratory organs. Clare, 356 Ill. at 242. The plaintiff notified the gas company, whose president visited the shop with the plumber and concluded that the odor was caused by the fumes of burned gas. The company president made several visits and recommended various remedies, including checking the stove and the gas meter. The suggestions were implemented, but the problem continued. Clare, 356

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No. 2--08--0878 Ill. at 242. The smell was so strong in the closet where the gas meter was located that the plaintiff kept the closet door closed. The source of the odor could not be found. Clare, 356 Ill. at 242. Several weeks later, a friend of the plaintiff was looking for a screwdriver in the dark closet and lit a match to see. An explosion occurred, blowing apart the floor. An investigation disclosed that a gas pipe running beneath the floor contained holes caused by rust. The gas that escaped from the pipe had accumulated in the closet and was ignited by the match. Clare, 356 Ill. at 242-43. The gas company presented evidence that some natural gas has a faint odor, if confined to a small room, but the gas furnished by the company had none at all, and that the fumes from burned gas affect the nose and eyes, but unburned gas does not. The company's president made several attempts to locate the odor's source, he had no knowledge that gas was escaping, and the plaintiff's complaints of eye and respiratory irritation convinced him that the trouble came from burned gas fumes. Clare, 356 Ill. at 243. The plaintiff obtained a judgment against the gas company. On appeal, the company argued that "there was no evidence in the record to warrant the finding that it [the gas company] had notice and knowledge that the pipes were leaking and gas was escaping into the building; that without such notice or knowledge there was no duty incumbent upon it to shut off the gas supply." Clare, 356 Ill. at 243. The Clare court ruled for the gas company, relying on established common law: "In the absence of notice of defects it is not incumbent upon a gas company to exercise reasonable care to ascertain whether or not service pipes under the control of the property owner or the consumer are fit for the furnishing of gas." Clare, 356 Ill. at 244. The court held that, where a gas company does not install the pipes or fixtures on a customer's premises, does not own them, and has no control over

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No. 2--08--0878 them, the company is not responsible for their condition or for their maintenance, and therefore the company is not liable for injuries caused by a leak therein of which the company had no knowledge. Clare, 356 Ill. at 244. The Clare court looked to the common law as it had evolved to that time, and Clare continues to accord with our understanding of the common-law rule. Adams, 211 Ill. 2d at 47, citing Oliver v. Peoples Gas Light & Coke Co., 5 Ill. App. 3d 1093, 1099 (1972); Bellefuil v. Willmar Gas Co., 243 Minn. 123, 126, 66 N.W.2d 779, 782 (1954) (discussing rule in context of gas appliances); Doxstater, 65 Idaho at 827-28, 154 P.2d at 504, quoting Kelley v. Public Service Co. of Northern Illinois, 300 Ill. App. 354, 362 (1939); 27A Am. Jur. 2d Energy & Power Sources

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