Adams v. Northern Illinois Gas Co.

• Decision Date: 28 June 2002
• Docket Number: No. 1-01-0303.,1-01-0303.
• Citation: 266 Ill.Dec. 411,774 N.E.2d 850,333 Ill. App.3d 215
• Parties: Christy A. ADAMS, as Special Adm'r of the Estate of Janice G. Adams, Deceased, Plaintiff-Appellant, v. NORTHERN ILLINOIS GAS COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

774 N.E.2d 850

333 Ill. App.3d 215

266 Ill.Dec. 411

Christy A. ADAMS, as Special Adm'r of the Estate of Janice G. Adams, Deceased, Plaintiff-Appellant, v. NORTHERN ILLINOIS GAS COMPANY, Defendant-Appellee.

No. 1-01-0303.

Appellate Court of Illinois, First District, First Division.

June 28, 2002.

Rehearing Denied August 23, 2002.

As Modified Upon Denial of Rehearing August 26, 2002.

George J. Tzanetopoulos, Robert M. Dow, Jr., Mayer, Brown & Piatt, Chicago, for Plaintiff-Appellee.

Thomas R. Rakowski, Connelly, Roberts & McGivney, LLC, Hilfman, Fogel, Martin & Barr, P.C., Chicago, for Defendant-Appellant.

OPINION MODIFIED UPON DENIAL OF REHEARING

Justice COUSINS delivered the opinion of the court:

On December 7, 1995, Janice Adams died as a result of an explosion and fire at her home in Calumet City, Illinois. Christy Adams (plaintiff), as special administrator of the estate of Janice Adams, deceased, filed a wrongful death suit against Lucia Georgevich and Northern Illinois Gas Company (NI-Gas). On September 13, 2000, the trial court granted summary judgment in favor of NI-Gas and deemed Georgevich's motion for summary judgment moot. On December 22, 2000, the trial court denied Adams' motion to reconsider. On January 18, 2001, the trial court also denied plaintiff's motion to take evidence depositions to preserve testimony. Adams presents the following issues for review on appeal: (1) whether the trial court erred in granting summary judgment in favor of NI-Gas; and (2) whether the trial court abused its discretion in denying plaintiff's motion to perpetuate testimony.

BACKGROUND

Janice Adams was a 48-year-old mother of two when she died on December 7, 1995, as a result of a natural gas explosion and fire at her home. Christy Adams, as special administrator of the estate of Janice Adams, deceased, originally filed a wrongful death action against the homeowner, Lucia Georgevich, and later added NGas.

Assistant chief of the Calumet City fire department Dan A. Smits stated in his pretrial deposition that he believed that the fire originated at the home as a result of an explosion involving natural gas. He further opined that the location of the gas flow was the "Cobra" gas connector.

Cobra is a brand-name corrugated metal connector that was produced between 1955 and 1965 by a Chicago-based manufacturer that is no longer in business. It is undisputed that, in its original state, natural gas is odorless. By law, NI-Gas is required to supply odorized gas to its customers as a detection method. Wayne Genck, a consultant on matters involving natural gas connectors, testified at deposition that the sulfur added to natural gas and phosphorous metal in flexible connectors have a reaction that produces a "corrosion product."

Plaintiff's expert, accident investigator Charles Lamar, testified that the source of the natural gas leak at the Adams' home was the failure of the flexible connector that connected the back of the range to the house piping, called the Cobra. He further testified that there was no failure in the NI-Gas facilities or the gas meter that led to the explosion. Lamar noted that phosphorus brazing was banned in 1968, and NI-Gas knew for decades about the failure of the "brazed joints," but did not take sufficient action to stop the use of those joints and did not warn the public about them.

Norman Breyer, Ph.D., testified that there was a good deal of information circulated to the gas distributors starting in 1968 regarding the inherent weakness of the Cobra tubing connection and the danger of using brazing compounds that contained phosphorus because it caused the joints to become brittle. He further stated that "we know that there are sulphur compounds in the gas put in either as odorants or as trace elements for the gas that's being transmitted over the piping system." Dr. Breyer opined that "[s]ulphur caused the failure of the phosphorous that is inherent in that alloy, the brazing alloy."

The decedent's ex-husband, Leonard Adams, testified in deposition that he had observed NI-Gas employees read the gas meter in the utility room of the home on occasion, but they did not examine anything in the house other than the meter. In late 1978 or 1980, after having a new clothes drier installed by Sears, a gas leak was detected. Janice Adams called NGas. A. NI-Gas employee came to the home and checked a gas pipe that ran along the wall between the meter and the clothes drier. He discovered that it was leaking and tightened the pipe.

On June 21, 2000, NI-Gas filed a motion for summary judgment asserting that it did not owe a legal duty to Janice Adams. Georgevich also filed a motion for summary judgment.

On September 13, 2000, NI-Gas' motion for summary judgment was granted and Georgevich's motion for summary judgment was deemed moot. Plaintiff filed a motion to reconsider the September 13, 2000, order. On December 22, 2000, plaintiff's motion to reconsider was denied.

On January 12, 2001, plaintiff filed an emergency motion to take evidence depositions to preserve expert witness testimony. Plaintiff's emergency motion asserted that she had retained multiple expert witnesses who were "instrumental" to the plaintiff's cause of action, including Charles Lamar, Norman Breyer, and Edward Karnes. Based on the time to complete the appellate process and the age of the plaintiff's experts, plaintiff requested that the testimony of one or more of her experts be preserved in the event that the case was returned for trial. The trial court denied plaintiff's motion, reasoning that "[t]hey're not fact witnesses who are essential to proving the Plaintiff's or Defendant's cases." Plaintiff now appeals the grant of summary judgment in favor of NI-Gas and the denial of her emergency motion to preserve testimony.

ANALYSIS

I

Plaintiff asserts that NI-Gas owed Janice Adams a common-law duty to use every reasonable precaution to avoid injury to the person or property of its customers and the trial court erred in granting summary judgment in favor of NI-Gas. NI-Gas responds that it owed no duty to plaintiff or her decedent under Illinois common law. Upon petition for rehearing, plaintiff frames the issue as follows: "whether a utility company which has actual knowledge of a dangerous condition associated with the use of its product * * * which was in part created by the utility company, has any responsibility to its customers to warn them of that danger." Appellate courts apply a de novo standard when reviewing summary judgment rulings. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party's right to judgment is clear and free from doubt. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). Summary judgment is appropriate only when the pleadings, depositions, admissions, and affidavits on file, if any, 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. Smith v. Allstate Insurance Co., 312 Ill.App.3d 246, 251, 244 Ill.Dec. 405, 726 N.E.2d 1 (1999). Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Pyne v. Witmer, 129 Ill.2d 351, 358-59, 135 Ill.Dec. 557, 543 N.E.2d 1304 (1989).

Duty is defined as "a legal obligation to conform one's conduct to a certain standard for the benefit or protection of another. [Citations.]" Kurtz v. Wright Garage Corp., 262 Ill.App.3d 1103, 1107, 200 Ill.Dec. 558, 635 N.E.2d 897 (1994). Whether a duty exists in a particular case is a question of law to be determined by the court (Ward v. K mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990)) and is determined by reference to whether the parties stood in such a relationship to each other that the law imposes an obligation on one to act for the protection of the other (Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 238, 216 Ill.Dec. 703, 665 N.E.2d 1260 (1996)). The factors relevant to the court's imposition of a duty include: (1) the likelihood of injury; (2) the reasonable foreseeability of such injury; (3) the magnitude of guarding against the injury; (4) and the consequences of placing that burden on the defendant. Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 425, 235 Ill.Dec. 905, 706 N.E.2d 460 (1998); Lee v. Chicago Transit Authority, 152 Ill.2d 432, 453, 178 Ill.Dec. 699, 605 N.E.2d 493 (1992).

It is well-settled in Illinois that "`where a gas company does not install the pipes or fixtures and does not own them and has no control over them it is not responsible for their condition or for their maintenance, and as a result is not liable for injuries caused by a leak therein of which it has no knowledge.'" Pioneer Hi-Bred Corn Co. of Illinois v. Northern Illinois Gas Co., 61 Ill.2d 6, 13, 329 N.E.2d 228 (1975), quoting Clare v. Bond County Gas Co., 356 Ill. 241, 244, 190 N.E. 278 (1934). However, Illinois has not addressed a gas company's duty to warn its customers of the possible deterioration of those fixtures when they are damaged, in part, due to the gas product itself.

Plaintiff relies on two out-of-state cases to support her contention that NI-Gas owes a duty to warn: Lemke v. Metropolitan Utilities District, 243 Neb. 633, 502 N.W.2d 80 (1993), and Halliburton v. Public Service Co. of Colorado, 804 P.2d 213 (Colo.App.1990).

In Lemke, the defendant gas company, Metropolitan Utilities District (MUD), asserted that it had no duty to notify its customers concerning a potential hazard from Cobra connectors. MUD service personnel had adjusted some of the plaintiff's gas ranges in 1986. Lemke, 243 Neb. at 652,502 N.W.2d at 92. Although there was no evidence that the gas provider installed the Cobra connector to the plaintiffs gas range, there was...