Hopkins v. Mississippi Valley Gas Co., No. 2002-CA-01185-COA.

• Citation: 866 So.2d 514
• Decision Date: 24 February 2004
• Docket Number: No. 2002-CA-01185-COA.
• Parties: Doris HOPKINS, Appellant, v. MISSISSIPPI VALLEY GAS COMPANY, Appellee.
• Court: Court of Appeals of Mississippi

866 So.2d 514

Doris HOPKINS, Appellant, v. MISSISSIPPI VALLEY GAS COMPANY, Appellee.

No. 2002-CA-01185-COA.

Court of Appeals of Mississippi.

February 24, 2004.

Bennie L. Turner, West Point, Orlando Rodriquez Richmond, Jackson, attorneys for appellant.

Reuben V. Anderson, John P. Sneed, Kay Freeman Dodge, Jackson, G. Bruce Parkerson, attorneys for appellee.

EN BANC.

MODIFIED OPINION ON MOTION FOR CLARIFICATION

KING, P.J., for the Court.

¶ 1. This Court grants the parties' joint motion to clarify opinion, withdraws the Court's prior opinion, and substitutes this opinion in lieu thereof.

¶ 2. Doris Hopkins filed a complaint in the Circuit Court of Noxubee County alleging that Mississippi Valley Gas (MVG) was negligent in reconnecting gas to her home. Hopkins contended MVG was negligent in reconnecting service to an unelevated gas-fired water heater after being put on notice that flammable liquids were being stored near the heater. Two days after MVG reconnected the gas to the Hopkins residence the home was partially destroyed by a fire that erupted from the gas heater. The trial court granted MVG's motion for summary judgment. Aggrieved, Hopkins appeals to this Court and asserts that the trial court erred in granting summary judgment.

FACTS

¶ 3. Doris Hopkins is the owner of a home located within the city limits of Macon, Mississippi. The home was built during 1993-1994 according to plans supplied by the U.S. Government through the Farmer's Home Administration (FHA), and included an outside utility room which opened onto a carport. A natural gas water heater, manufactured by American Water Heater Company, was installed by the builders of the home at floor level, commonly referred to as "unelevated", in the utility room. The natural gas for the water heater was supplied by Mississippi Valley Gas. MVG did not manufacture, retail, or install the water heater in the Hopkins home.

¶ 4. When the house was built in 1994, floor level installation was in compliance with all applicable building codes. Since 1995, MVG has required all heaters which it installs to be elevated at least eighteen inches off the floor. At least a part of the reason for this requirement is the opinion that, "By elevating the water heater, it becomes more difficult for heavier than air flammable vapors to come into contact with the flame in the water heater and be ignited." (Mississippi Valley Gas letter dated April 10, 2000). In its letter, MVG noted that risks of storing flammable liquids, such as gasoline, near a water heater are great, and the risks may possibly be lessened by an elevation of the water heater, but the only safe method was to never store flammable items in the same room with or near a water heater or appliance, elevated or not.

¶ 5. Prior to Hopkins' moving in, the home had passed all inspections conducted by the FHA and the City of Macon. At the time of the fire, in June 2000, the home with its un-elevated heater was still code-compliant with the City of Macon.

¶ 6. It is undisputed that on several occasions MVG enclosed in statements sent to its customers, warnings regarding the danger of storing flammables near a water heater. MVG's records indicate that bills with a safety warning enclosure were mailed to the Hopkins home on September 2, 1999 April 10, 2000, and on May 1, 2000. According to MVG's records each of the bills containing the warnings was paid by Hopkins. The May and September warnings were pictures depicting the danger of keeping flammables near gas appliances. The April warning was a letter from the president of MVG, which specifically outlined the dangers of storing flammables near the water heaters, and even included an adhesive safety sticker to attach to the heater. The record does not indicate whether or not Hopkins affixed the safety sticker to her water heater. The letter stated that "some building codes require and most water heater manufacturers recommend that gas water heaters be elevated 18 inches off the ground where flammable vapors are likely to be present." The letter went on to say "by elevating the water heater, it becomes more difficult for heavier than air flammable vapors to come into contact with the flame in the water heater and be ignited."

¶ 7. On May 31, 2000 Hopkins' service was interrupted when her gas bill was not timely paid. That same day MVG serviceman Doyle Cummins arrived at the Hopkins residence to restore service. As part of restoring service, Cummins was to reignite any pilot lights. Cummins found a gasoline container stored in close proximity to the water heater, but removed the container before re-lighting the pilot light. Hopkins acknowledged that Cummins showed her the container and warned her of the dangers of storing flammable materials in the same room as the water heater. Cummins did not warn Hopkins that there was an increased risk of danger when storing flammables near an un-elevated water heater.

¶ 8. Two days later, on June 2, 2000, the Hopkins home was partially destroyed by fire. It appears that the fire began when flammable gasoline vapors were ignited by the gas-fired water heater. By Hopkins' own admission, at the time of the fire she saw her three year old grandchild, whom she was babysitting, running from the direction of the utility room aflame. Hopkins used her blouse and bare hands in an attempt to extinguish the flames. However, the child was so severely burned that he ultimately died from the burns received in the explosion. After the fire, the red gasoline container which Cummins had removed from the utility room could not be found. It is therefore believed that Hopkins' grandchild moved the red gasoline container back into the utility room.

¶ 9. MVG filed a motion for summary judgment, which was granted on May 29, 2002. The trial judge decided the sole issue was whether MVG had a duty to warn, or refuse service, where no flammable liquids were present when service was initiated. The trial court held that absent actual knowledge of a hazardous condition at the time the service was re-connected MVG's duty "terminated at the meter."

ISSUES AND ANALYSIS

I.

Whether the trial court erred in granting summary judgment

¶ 10. Hopkins contends that the trial court erred in granting summary judgment to MVG. Hopkins claims that although the factual averments as to the cause of the fire are not in dispute, that uncontradicted evidentiary facts do not necessarily entitle a party to summary judgment, and that where materially different yet reasonable inferences or interpretations may be gleaned from undisputed facts, the jury must be allowed to perform its function. Although the trial judge refused to infer negligence by MVG, Hopkins contends that jurors, given the same set of undisputed facts, could infer negligence by MVG, and therefore, a genuine issue of material fact existed that should have precluded summary judgment.

¶ 11. In considering the grant or denial of a summary judgment, this Court conducts a de novo review. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993); Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992). A trial court may grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a...