Goodhart v. Atlanta Gas Light Co.

• Decision Date: 04 March 2019
• Docket Number: A18A1965
• Citation: 349 Ga.App. 65,825 S.E.2d 465
• Parties: GOODHART et al. v. ATLANTA GAS LIGHT COMPANY.
• Court: Georgia Court of Appeals

349 Ga.App. 65

825 S.E.2d 465

GOODHART et al.

v.ATLANTA GAS LIGHT COMPANY.

A18A1965

Court of Appeals of Georgia.

March 4, 2019

Shiver Hamilton, Jeffrey P. Shiver, Alan J. Hamilton, R. Scott Campbell ; The Summerville Firm, J. Darren Summerville, Angela R. Fox, Kurt G. Kastorf, for appellants.

Thompson Hine, J. Timothy McDonald, Alexandra C. Nelson, Russell J. Rogers, for appellee.

Miller, Presiding Judge.

This appeal arises from the death of Lauren Goodhart, who was found in her apartment after having suffered an apparent asthma attack. Lauren's estate, along with her parents ("the Goodharts"), filed a wrongful death lawsuit against Atlanta Gas Light Company ("AGL"),¹ premised on a gas leak found in Lauren's apartment around the time of her death. The Goodharts appeal from the trial court's grant of summary judgment to AGL, arguing that the trial court incorrectly determined that AGL did not owe Lauren a duty. Because the record shows that AGL did not owe Lauren a duty under statute or case law, or engage in a voluntary undertaking subjecting the company to liability under the Restatement (Second) of Torts, we affirm.

"To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law." Beasley v. A Better Gas Co. , 269 Ga. App. 426, 604 S.E.2d 202 (2004). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Id.

So viewed, the evidence shows that Lauren lived in an apartment in Atlanta. In 2009, the landlord purchased a washer and gas dryer from Home Depot. Home Depot personnel delivered the appliances and "put them in place," the landlord "saw them do some kind of connecting work," and the Home Depot personnel turned on the dryer.

In February 2010, AGL went to the property to activate gas service in the name of Lauren's then-boyfriend, with whom Lauren had been living. The gas meters in this case are located at the rear of the building. Later that year, in October 2010, AGL returned to the property to reconnect the gas after the service was disconnected. At this point, gas service was still in the name of Lauren's ex-boyfriend. Both of the 2010 service orders show that the AGL field service representative "spotted" the meter during the visit, which reveals whether there are any gas leaks. Neither of the 2010 service orders showed a gas leak.

AGL does not install customers’ gas appliances. When AGL turns on customers’ gas, however, the field service representative does go into the residence, ask the customer to identify the gas appliances in the home, and "check for ... issues that may be happening." If the representative observes any "codes or violations" that he or she can fix "within [his or her] parameters," the representative "make[s] those adjustments" before turning on the gas. The AGL representative also checks for "issues with combustion." If the representative finds combustion issues, the gas is not turned on.

Lauren began renting the apartment from the landlord in 2011. On the morning of December 31, 2013, more than three years after AGL did the 2010 reconnect, Lauren called 911 to report that she could not breathe and that she suffered from asthma. The following day, Lauren's mother asked Lauren's law partner, Peter New, to check on Lauren because she was not returning her calls. When New went to Lauren's apartment, he found Lauren's body. New noted that the apartment smelled "kind of like eggs" but did not recall smelling any gas in Lauren's bedroom. He testified that Lauren had not been feeling well for approximately a week and a half prior, and had been coughing on the day that he last saw her, which was December 30.

New testified that after he was interviewed, an unknown first responder exited the laundry room and "said that they had found a—like a letter or a—a confirmation of a service call from the gas company." According to New, the person was holding a "piece of paper," and stated "it was from Atlanta Gas Light, and that it indicated that [Lauren] had called previously. And the company had asked her if they thought that the leak was serious, and that she had said that—it was written on there that she said she didn't know." New did not see the contents of the paper and although he is familiar with the AGL trademark, he could not tell if the paper bore the trademark. No reports from first responders mention this paper and it was not submitted to the trial court.

In responding to the scene, fire service personnel noted "a strong odor of gas at the home." A field service representative from AGL was also called to the apartment. Upon examining the rear of the dryer, he observed that "[t]he unit was leaking from the flex line to the connector," and that the connector had been hand-tightened, rather than tightened using a wrench.² The flex connector connects the dryer to the gas line. Tightening and sealing fittings is a part of the installation process.

The AGL representative's "gas tracker" detected "60% LEL [lower explosive limit] coming from [the dryer]," which AGL's operating manual describes as a "dangerous concentration." When the AGL representative "spotted" the meter at the rear of the building, he found that "[t]he meter would not hold its spot" because of the loose "flex line." He turned off the gas valve to the dryer, wrench-tightened and applied pipe sealant to the connector, and turned off the gas to the apartment.

According to the autopsy report, Lauren died from "[b]ronchial asthma exacerbated by bronchopneumonia." The attending forensic pathologist, Dr. Stauffenberg, explained as follows: "the cause of death is asthma and ... it's made worse by the fact that she has this inflammation on top of the constriction of her airways. That would be the bronchopneumonia." Toxicologic screening tests performed on Lauren were positive for codeine, corresponding with cough syrup that Lauren's father had prescribed for her. However, Dr. Stauffenberg testified that the level of codeine in Lauren's blood was "nowhere near enough to be lethal" and she did not believe that the cough syrup played a role in Lauren's death. Dr. Stauffenberg further testified that she did not think that Lauren's death was caused by vitiated atmosphere³ or natural gas. She added, "[g]enerally[,] that's extremely rare in a residence. Homes, as much as we try to seal them up are usually fairly well ventilated." Rather, she found that "it just looked like a really bad asthma attack with a really strong inflammatory infiltrate." She also explained that blood testing will not detect any "specific chemical that is due to natural gas or even the odorant that's added to it. We can't do testing for that. We can't even test for lack of oxygen because after death everybody loses oxygen. So ... we can't really confirm that at all by the autopsy."

One of the Goodharts’ medical doctor experts testified that "it's at least plausible that the environment was already somewhat compromised with regard to oxygen" such that Lauren had an asthma flare which caused her to become nonresponsive. Another of their medical doctor experts opined that it was more likely than not that the gas leak was a significant contributing factor in Lauren's death, describing the leak as a "domino that fell," "set[ting] off all these other dominoes."

The Goodharts filed a wrongful death lawsuit, naming AGL as one of the defendants. The Goodharts alleged that AGL had been negligent in failing to investigate and correct a hazardous condition on the premises, and in failing to warn Lauren of a dangerous existing condition on the premises. AGL moved for summary judgment, arguing that neither case law nor statute impose any duty on AGL to inspect or maintain the gas piping and appliances of its customers. Following a hearing, the trial court granted AGL's motion for summary judgment. The trial court found that (1) New's testimony suggesting that AGL had prior knowledge of a gas leak was inadmissible hearsay, and there was otherwise no evidence that the company had such knowledge so as to engender a duty; and (2) Section 324A of the Restatement (Second) of Torts did not give rise to a duty on the part of AGL. This appeal followed.

In interrelated enumerations of error, the Goodharts argue that the trial court erred in not considering New's testimony regarding the first responder's reading of the piece of paper, and also erred in finding that AGL did not undertake a duty to Lauren. These arguments are unpersuasive.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant's conduct and the plaintiff's injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law. A legal duty sufficient to support liability in negligence is either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of our appellate courts.

(Citation, punctuation and emphasis omitted.) Garvin v. Atlanta Gas Light , 334 Ga. App. 450, 453 (1), 779 S.E.2d 687 (2015). "In the absence of a legally cognizable duty, there can be no fault or negligence." Ford Motor Co. v. Reese , 300 Ga. App. 82, 84 (1) (a), 684 S.E.2d 279 (2009). "No matter how innocent the plaintiff may be, [s]he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something that it should have done pursuant to the duty owed the plaintiff." (Citation and punctuation omitted.) City of Douglasville v. Queen , 270 Ga. 770, 771 (1), 514 S.E.2d 195 (1999).

Here, the Goodharts contend that AGL's...