Mahowald v. Minnesota Gas Co.

• Decision Date: 16 March 1984
• Docket Number: No. C0-82-1170,C0-82-1170
• Citation: 344 N.W.2d 856
• Parties: Francis MAHOWALD and Mary Ann Mahowald, Appellants, Stephen Bock, Appellant, Michael L. Kannegieter and Alice B. Kannegieter, individually and as husband and wife and natural guardians of Todd Kannegieter and Pamela Kannegieter, Appellants, v. MINNESOTA GAS COMPANY, a.k.a. Minnegasco, Respondent, Century 21 Town and Country Real Estate, Inc., et al., Defendants, Barbarossa and Sons, Respondent.
• Court: Minnesota Supreme Court

Page 856

344 N.W.2d 856

Francis MAHOWALD and Mary Ann Mahowald, Appellants,

Stephen Bock, Appellant,

Michael L. Kannegieter and Alice B. Kannegieter,

individually and as husband and wife and natural

guardians of Todd Kannegieter and Pamela

Kannegieter, Appellants, v. MINNESOTA GAS COMPANY, a.k.a. Minnegasco, Respondent, Century 21 Town and Country Real Estate, Inc., et al., Defendants, Barbarossa and Sons, Respondent.

No. C0-82-1170.

Supreme Court of Minnesota.

March 16, 1984.

Rehearing Denied March 16, 1984.

Syllabus by the Court

1. A gas distributor is not an insurer of damages to person and property of others from an explosion resulting from leaks in gas mains located in public streets.

2. When natural gas escapes from lines and mains of a gas company located in the public streets, the gas company is liable only if negligent. In this case the plaintiffs were entitled to an instruction based upon the doctrine of res ipsa loquitur.

Olson, Gunn & Seran, Ltd. by A.B. Seran, Minneapolis, for Minnesota Gas Co.

Jardine, Logan & O'Brien by Gerald M. Linnihan, St. Paul, for Barbarossa & Sons.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan by James F. Roegge, Minneapolis, for Mahowald.

Steffens, Usset & Rothnem by Gregory L. Rothnem, Minneapolis, for Bock.

Chadwick, Johnson & Condon by Wayne D. Tritbough, Minneapolis, for Blaylock Plumbing.

Rider, Bennett, Egan & Arundel by John B. Lunseth, II, Minneapolis, for Lawrence Schweich Home Bldrs.

David K. Wendel, Minneapolis, for City of Prior Lake.

Faegre & Benson by John B. Gordon, Minneapolis, for Distribution Const. Co.

Lasley, Gaughan, Stich & Angell, P.A. by M.W. Gaughan, Minneapolis, for Century 21, et al.

Heard, considered and decided by the court en banc.

KELLEY, Justice.

On the morning of February 26, 1977, the home of Alice and Michael Kannegieter exploded, causing the total destruction of the home and its contents. The Kannegieters and their two children suffered personal injuries. Two neighboring homes were also damaged. Investigation revealed that a natural gas main pipe located in the right-of-way in front of the Kannegieter residence had fractured, causing natural gas to leak into the home.

Following the explosion, the homeowners filed suit against Minnesota Gas Company, the City of Prior Lake, the home builder, and four contractors who had done excavation work on the Kannegieter lot over a period of 7 years prior to the explosion. Pursuant to agreement by the parties, the court dismissed Wicker-Knox, the home builder, prior to trial. Following conclusion of plaintiffs' case, all defendants, other than the gas company and one contractor, were dismissed. The case went to the jury on the theory of negligence. The jury found damages of $110,850, but no negligence on the part of either defendant.

On appeal plaintiffs challenge the trial court's refusal to impose strict liability and its failure to give a res ipsa loquitur instruction. We decline to impose strict liability but hold it was error to refuse to give a res ipsa loquitur instruction. Accordingly, we reverse.

In November 1970, Minnesota Gas Company ¹ (Minnegasco) installed a gas main in the right-of-way in front of what was to become the Kannegieter residence. Distribution Construction Company did the actual work on the gas main under Minnegasco's supervision. The main was installed at a depth of 42 inches, exceeding the depth required by federal regulations and company policy. Depth requirements are designed to protect the line against stress caused by vehicle loads and superficial digging, such as gardening. There is no evidence in the record that the line was improperly installed.

Pursuant to Minnegasco's ownership and obligation to maintain its gas lines, periodic leak checks were performed on the line in compliance with federal requirements. No leaks in the gas line were ever detected prior to the 1977 explosion.

No further construction occurred in the area of the gas line until 1974 when Barbarossa and Sons was hired by the City of Prior Lake to install water and sewer lines in the Willows Addition, the development in which the Kannegieter residence was to be located. On April 30, 1974, Barbarossa struck and severed a gas main with a backhoe. The strike was reported to and repaired by Minnegasco.

On May 15, 1974, Barbarossa again struck a gas main. The pipe was scraped and bent a distance of approximately 16 feet from where the explosion-causing fracture eventually occurred. Minnegasco was notified of the hit and sent a repairman to the site. Because the pipe itself was not physically damaged, the pipe was wrapped with special tape, sealed, and reburied.

In April 1976, Schweich Home Builders, a subcontractor for Wicker-Knox Associates, Inc., the home builder, graded and excavated the Kannegieter lot. There is no evidence of any gas line hits by Schweich. In May 1976, Blaylock Plumbing Company installed sewer and water lines to the Kannegieter residence from the sewer and water stubs previously installed by Barbarossa. Schweich subsequently returned to prepare the lot for sodding.

In addition to the above-named parties, other entities apparently engaged in excavating or other digging activities in the street. These entities were not named as defendants and the location and extent of their activity is not of record. These entities include telephone, electric, and landscaping companies.

Alice and Michael Kannegieter and their two children moved into their newly built home on Elm Avenue in the Willows Addition of Prior Lake in September 1976. On Saturday morning, February 26, 1977, Alice went to the garage to start the family car, while Michael gathered the children in the family room. Alice placed her key into the car's ignition. The house exploded causing its total destruction.

At trial, Dr. C.F. Quest, an employee of Minnegasco, was called both by plaintiffs and the gas company. He was the only expert to testify as to the cause of the explosion. He testified that the pipe fractured as a result of corrosion and stress caused by a prior hit on the pipe. The hit could have occurred at any time prior to the fracture, but likely occurred at least several months previously. The seeping gas migrated into the home due to the frozen condition of the ground and was leached of its odor and therefore not detectable without mechanical testing devices. No witness was able to state which hit caused the eventual fracture. It is therefore not known who caused the eventual fracture and the resulting explosion.

Prior to trial, plaintiffs agreed to dismiss all defendants except Barbarossa and Minnegasco. Due to dispute among the various defendants, only the home builder, Wicker-Knox, was dismissed. At the conclusion of the plaintiffs' case, directed verdicts were granted in favor of the City of Prior Lake, Schweich Home Builders, Blaylock, and Distribution Construction. On this appeal no objection is raised as to these dispositions. Over plaintiffs' objection, the case was submitted to the jury under a theory of negligence only. The jury found both defendants not negligent and set damages at $110,850.

This appeal raises two issues. The first is whether a distributor of natural gas should be held strictly liable for the escape of gas from its mains laid in a public street. Secondly, if a gas company is not strictly liable, whether it was error on the part of the trial court to refuse to give a res ipsa loquitur instruction.

1. Appellants urge us in this case to make a natural gas distributor who has gas mains in the public streets an insurer of the person and property of its customers, and others, if they sustain damage as a direct result of a gas leak from one of the distributor's gas lines located in the public street. They invite us to explicitly overrule Gould v. Winona Gas Co., 100 Minn. 258, 111 N.W. 254 (1907), and to implicitly overrule a number of later cases which applied and reaffirmed the rule of Gould that a gas distributor's liability for damage resulting from leaks from mains located in public streets rests on negligence--the duty to exercise reasonable care commensurate with the risk of harm. To do so, we would have to overrule a long line of our own cases and also announce a rule contrary to that prevailing in our sister jurisdictions. A minority of the court feels the time has come to take that step. However, it appears to us that such a departure from general rules of liability of gas distributors is neither advisable nor necessary. Equity in this type of case will better be served by the less drastic measure of shifting to the gas distributor the burden of overcoming an inference of negligence on its part under the doctrine of res ipsa loquitur.

Gould established the rule in Minnesota that a distributor of natural gas was liable to those sustaining damages from a gas leak in mains in the public street only if the distributor was negligent. It expressly rejected a ruling that would make the distributor an insurer. In a number of cases following Gould up until recent times, this court has consistently followed Gould. The negligence rule was recognized in Bellefuil v. Willmar Gas Co., 243 Minn. 123, 66 N.W.2d 779 (1954). We rejected an invitation to make a gas distributor, in effect, an insurer of the safety of its operations in DeVries v. City of Austin, 261 Minn. 52, 110 N.W.2d 529 (1961). Again, in Wilson v. Home Gas Co., 267 Minn. 162, 125 N.W.2d 725 (1964), we affirmed the trial judge's instruction that defined the defendant gas supplier's liability in negligence terms. See also Ruberg v. Skelly Oil Co., 297 N.W.2d 746 (Minn.1980). Thus, we have a line of cases until very recent times either declining to impose strict liability on a gas distributor or defining its responsibility in terms of negligence.

Those arguing for a rule to impose liability without proof of negligence contend that such a rule is consistent with a line of cases involving...