Dudley v. Baltimore Gas & Elec. Co.

• Decision Date: 01 September 1993
• Docket Number: No. 264,264
• Citation: 98 Md.App. 182,632 A.2d 492
• Court: Court of Special Appeals of Maryland
• Parties: , 22 UCC Rep.Serv.2d 481 Susie J. DUDLEY, v. BALTIMORE GAS & ELECTRIC COMPANY. ,

Page 182

98 Md.App. 182

632 A.2d 492, 22 UCC Rep.Serv.2d 481

Susie J. DUDLEY, v. BALTIMORE GAS & ELECTRIC COMPANY.

No. 264, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Nov. 3, 1993.

Robert A. Suls (Michael B. Mann and Mann & Whelley, P.A., on the brief), Towson, for appellant.

Kerry B. Fisher (Stephen J. Rosasco, on the brief), Baltimore, for appellee.

Argued before GARRITY, BLOOM and MOTZ, JJ.

MOTZ, Judge.

This case involves the liability, vel non, of a gas company to one of its customers for damages resulting from an unexplained fire in the customer's home.

Appellant, Susie J. Dudley, appeals from the entry of summary judgment against her and in favor of appellee, Baltimore Gas & Electric Company (BG & E), by the Circuit Court for Baltimore City (Ward, J.). Until March 18, 1989, Ms. Dudley resided at 4300 Fairview Avenue in Baltimore City; since 1963, she had purchased gas from BG & E. Ms. Dudley left her home on the afternoon of March 18, 1989. When she returned that evening her home had been totally demolished by fire.

On April 4, 1991, Ms. Dudley filed a five-count complaint against BG & E in the circuit court. She alleged that BG & E was negligent in "failing to properly select, maintain, test and inspect its meter box, gas piping and appurtenances ... and in failing to warn [her] of the dangerous condition of same" (Count 1); that BG & E was strictly liable to her because it provided "gas piping, a meter box and natural gas which were defective and in an unreasonably dangerous condition in that the gas was flammable and highly explosive and the pipes, appurtenances and meter box were faulty, deteriorated and subject to leaking (Count 2); that BG & E breached its implied warranty to deliver gas in a safe and effective manner (Count 3); that BG & E breached its contract to supply her with gas in a safe and effective manner (Count 4); and finally that BG & E's placement "within its land, property and piping system highly volatile and explosive natural gas" subjected it to "liability without fault" (Count 5).

BG & E answered the complaint and the parties engaged in discovery for a number of months. Ms. Dudley conceded in deposition that prior to March 18, 1989, she never had any problems with natural gas leaks in her home, never smelled the odor of natural gas in or around her house, never notified BG & E of any gas leaks in or around her house, did not know of any neighbors who had notified BG & E of any gas leaks in the area of her house, and did not recall ever observing BG & E employees working in the area around her house. BG & E's corporate designee testified in his deposition that BG & E records indicated "no calls for gas leaks at any of the homes of the 4300 block of Fairview Avenue were received" at any time during the week before the explosion. Another BG & E official confirmed that BG & E records for a "five year period" prior to the accident indicate BG & E "has no record of a call for a gas leak at any of the houses in the 4300 block of Fairview Avenue prior to the March 18, 1989 occurrence at issue." The Baltimore City Fire Department's fire investigation report stated that the first officer on the scene found "heavy blue flames from the front of the basement and the walls were already down" and that "it is the opinion of this investigator there was a natural gas leak in the area of the gas meter, which over a period of time built up in the basement ceiling and upper regions of the house." The report of a BG & E customer service supervisor stated that after the fire a test "on the existing service and metal installation ... indicated a slight gas leak." Other facts are set forth within as necessary.

On November 4, 1992, BG & E moved for summary judgment; Ms. Dudley opposed the motion. On December 28, 1992, the circuit court issued an order granting the motion. Ms. Dudley raises five questions on appeal, one paralleling each of the five counts of her complaint:

1. Did the trial court err in granting summary judgment to the defendant on plaintiff's claims that BG & E had been negligent when there were sufficient facts presented from which the jury could reasonably conclude that BG & E failed to properly select, maintain, test and inspect its meter box, gas piping and appurtenances and failed to warn Dudley of the dangerous conditions of these components?

2. Did the trial court err in granting summary judgment to the defendant on plaintiff's claims that BG & E should be held strictly liable when there were sufficient facts presented from which the jury could reasonably conclude that BG & E furnished defective and unreasonably dangerous gas piping, meter box and natural gas which items were defective at the time they left the possession and control of BG & E?

3. Did the trial court err in granting summary judgment to the defendant on plaintiff's claims that BG & E breached its warranty when there were sufficient facts presented from which the jury could reasonably conclude that BG & E failed to deliver gas in a safe and effective manner so as not to damage the plaintiff's property?

4. Did the trial court err in granting summary judgment to the defendant on plaintiff's claims that BG & E breached its contract when there were sufficient facts presented from which the jury could reasonably conclude that BG & E failed to supply Dudley with natural gas in a safe and effective manner so as not to damage her property?

5. Did the trial court err in granting summary judgment to the defendant on plaintiff's claims that BG & E should be held liable without regard to fault when there were sufficient facts presented from which the jury could reasonably conclude that BG & E placed within its land, property and piping system highly volatile and explosive natural gas, permitted the artificial accumulation of natural gas within its property which escaped into the plaintiff's property causing an explosion and destroying Dudley's home and personal property?

The circuit court did not issue an oral or written opinion in granting the summary judgment motion. Rather, its order stated in its entirety:

Upon consideration of Defendant Baltimore Gas and Electric Company's Motion for Summary Judgment, and any response filed thereto, it is this 28 day of December, 1992

ORDERED, by the Circuit Court for Baltimore City, that said Motion for Summary Judgment regarding the Plaintiff's Complaint is hereby GRANTED.

Costs assessed to plaintiff.

Although it would be preferable to have the benefit of the circuit court's rationale as to why summary judgment was proper here, in the absence of any such explanation, "we must assume that the circuit court carefully considered all of the asserted grounds and determined that all or at least enough of them as to merit the grant of summary judgment were meritorious." Bond v. NIBCO, Inc., 96 Md.App. 127, 133, 623 A.2d 731 (1993). In reviewing a lower court's grant of summary judgment, we determine whether the lower court was "legally correct." Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737, 625 A.2d 1005 (1993); Heat & Power Corp. v. Air Prods. & Chems., 320 Md. 584, 592, 578 A.2d 1202 (1990).

(i)

Ms. Dudley's first and principal contention is that the circuit court "erred in concluding as a matter of law that there was insufficient evidence presented to raise a jury issue on [her] negligence claim."

BG & E asserts that because it had no notice of a gas leak in Ms. Dudley's house, under Maryland law, it has no liability to her for damage caused by the leak. There is no recent Maryland case involving the liability of a utility in a similar situation. Three early Court of Appeals cases, however, assertedly provide the basis for BG & E's argument. In the first, Consolidated Gas Co. v. Crocker, 82 Md. 113, 33 A. 423 (1895), the Court found that a gas company was negligent when it had been given notice of a gas leak and failed to resolve the problem. The Crocker court reasoned:

When a gas company is made aware, as in this case, that large quantities of gas are escaping into a building, it becomes its plain duty to use reasonable diligence to discover and to stop the leak. It cannot discharge that duty by assuming without knowing that the leak proceeds from one source, when, in fact, it proceeds from a totally different source which could have been discovered by proper inspection. This rule requires nothing unreasonable--it does not require that the company shall keep up a constant inspection all along its lines, without reference to the existence or non-existence of a probable cause for the occurrence of leaks or escapes of gas--but it does require that when notice of the existence of a leak has been given to a company, the company shall use reasonable care to discover the cause of the leak and appropriate means to remedy it.

Id. at 124, 33 A. 423 (emphasis added). Two years later in Brady v. Consolidated Gas Co., 85 Md. 637, 37 A. 263 (1897), the Court used the Crocker dicta as the basis for holding that a gas company was not negligent as a matter of law when it was not given notice of a gas leak.

It was not negligence on the part of the company to leave its pipes on the premises, nor does the fact that it made no examination of the pipes raise any presumption of negligence, in the absence of any notice of the existence of any cause for an examination. Had there been such notice its duty would have been to have discovered the cause of the leak, and to have used proper means to remedy it. It was not required to keep up a constant inspection all along its lines, without reference to the existence or non-existence of a probable cause for the occurrence of leaks, or escape of gas.

Id. at 642, 37 A. 263. See also Consolidated Gas Co. v. Connor, 114 Md. 140, 151-52, 78 A. 725 (1910) (when gas company was notified of a gas leak three or four days before inhalation of gas injured plaintiffs, sufficient evidence to show negligence on part of gas...