Natural Gas Odorizing, Inc. v. Downs
| Decision Date | 18 September 1997 |
| Docket Number | No. 61A01-9612-CV-396,61A01-9612-CV-396 |
| Citation | 685 N.E.2d 155 |
| Parties | Prod.Liab.Rep. (CCH) P 15,136 NATURAL GAS ODORIZING, INC., Appellant-Defendant, v. Kristy S. DOWNS, Individually and as Personal Representative of the Estate of Ivan Dean Downs, and as Guardian of Susan Downs and Matthew Downs, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
By amended complaint, Kristy S. Downs, individually, as the personal representative of the Estate of Ivan Dean Downs and as the guardian of Susan and Matthew Downs ("Downs"), joined Natural Gas Odorizing, Inc. ("NGO") as a defendant in a previously initiated lawsuit. 1 Downs alleged that NGO was strictly liable under the Indiana Product Liability Act for the death of Ivan Dean Downs ("Dean"), and for the injuries that Kristy Downs and her children, Susan and Matthew, had sustained in a natural gas explosion. Downs maintained that the odorant supplied by NGO had lost its distinctive odor, that it did not serve its purpose as a warning agent and that NGO failed to warn either Montezuma or the Downs that the odorant could lose its odorized characteristics. 2 NGO moved for summary judgment. After a hearing and several related motions, the trial court denied summary judgment in part and granted summary judgment in part for NGO. NGO now appeals, and Downs cross-appeals.
We reverse in part, affirm in part and remand. 3
NGO and Downs present several issues for our review which we consolidate and restate as:
1. Whether a genuine issue of material fact exists as to the odorant's failure to perform as intended.
2. Whether NGO had a duty to warn about the dangers associated with odor fade.
3. Whether a genuine issue of material fact exists as to NGO's satisfaction of its duty to warn.
The Downs family lived at 1113 Jefferson Street in Montezuma. Their residence consisted of a one-story home with a full basement and a crawl space. They used a wood-burning stove in their living room for heat during the winter months and also employed a gas-fueled furnace and water heater, both located in the basement. Montezuma Municipal Gas Utility ("Montezuma") supplied the natural gas to the residents of Montezuma, including the Downs family. NGO, an Oklahoma corporation, supplied the odorant to Montezuma that was used in Montezuma's natural gas supply as required by federal law. 5
On January 21, 1993, the night of the explosion, Kristy and her children returned home after 9:00 p.m. and were in bed by about 11:30 p.m. Dean returned home from work at approximately 12:30 a.m. 6 Around 1:10 a.m., the Downs' house exploded, blowing out the walls and collapsing the roof. Witnesses reported hearing two explosions. Those explosions and the resulting fire destroyed the residence. Kristy, Suzanne and Matthew sustained injuries, including second and third-degree burns. Investigators discovered Dean's body the following day in what had been the living room.
The National Transportation Safety Board issued an accident report which concluded that "the probable cause of the accident was the failure of a corroded bare steel [pipe] coupling under stress from a growing tree root pressing downward on the curb box and transferring the load to the pipe and coupling." The Indiana Utility Regulatory Commission also issued a report which stated:
The service line was leaking at a screw joint coupling just under the edge of the road east of the house. Cause of leak probably corrosion at screw joint threads. A hard dry ball of dirt about leak indicated leakage for about two weeks. Entire area--gravel--and bar tests showed gas up to house and to house direct[ly] south.
Downs filed suit against multiple parties involved in the sale, distribution, and supply of natural gas to the town of Montezuma for wrongful death, personal injury, and property damage. Downs' Amended Complaint, as it relates to NGO, alleges:
The odorant sold by [NGO] to Montezuma failed to alert the Downs or any other person to the dangerous accumulation of natural gas in the Downs residence prior to the explosion and fire. The odorant was inherently defective or became defective due to a failure by [NGO] to instruct Montezuma in its proper use, or to warn Montezuma about conditions under which the odorant might lose its odor. [NGO] is strictly liable in tort, for damage suffered by the Downs' family ... to the extent that it supplied odorant to Montezuma in a defective condition unreasonabl[y] dangerous to consumers and their property.
Summary judgment is only appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). At the time of filing a summary judgment motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice and any other matters upon which the party relies for purposes of the motion. T.R. 56(C). Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). In ruling on a summary judgment motion, all evidence must be construed in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Bailey v. Manors Group, 642 N.E.2d 249, 252 (Ind.Ct.App.1994), trans. denied. When reviewing the grant or denial of summary judgment, we apply the same standard as that used by the trial court. Ramon v. Glenroy Constr. Co., 609 N.E.2d 1123, 1127 (Ind.Ct.App.1993), trans. denied.
Strict product liability actions in Indiana are governed by the Indiana Product Liability Act ("the Act"). IND.CODE §§ 33-1-1.5-1 to 33-1-1.5-8 (amended 1995). 7 A product manufacturer is liable under the following statutory terms:
(a) One who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or
consumer or to his property is subject to liability for physical harm caused by that product to the user or consumer or to his property if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition, and if:
(1) the seller is engaged in the business of selling such a product; and
(2) the product is expected to and does reach the user or consumer without substantial alteration in the condition in which it is sold by the person sought to be held liable under this chapter.
IND.CODE § 33-1-1.5-3(a) (emphasis added). The Act further provides in relevant part:
(a) A product is in a defective condition under this chapter if, at the time it is conveyed by the seller to another party, it is in a condition:
(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and
(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
(b) A product is defective under this chapter if the seller fails to:
(1) properly package or label the product to give reasonable warnings of danger about the product; or
(2) give reasonably complete instruction on the proper use of the product;
when the seller, by exercising reasonable diligence, could have made such warnings or instructions available to the user or consumer.
IND.CODE § 33-1-1.5-2.5 (emphasis added). To establish a prima facie case of strict liability, the plaintiff must show that (1) the product is defective and unreasonably dangerous, (2) the defective condition existed at the time the product left the defendant's control, and (3) the defective condition is the proximate cause of the plaintiff's injuries.
Issue One: "Odor Fade"
Downs' action is based upon NGO's failure to warn Montezuma and/or the Downs about the odorant's allegedly latent defect of "odor fade." As a threshold question, we must determine whether Downs has established that odor fade, and thus, the duty to warn against it, may have been implicated in the natural gas explosion at issue in this case. See Issue Two, discussed infra. Stated differently, to defeat NGO's motion for summary judgment, Downs must demonstrate that a genuine issue of material fact exists as to whether the odorant failed to perform as intended, thereby proximately causing their injuries. 8
Downs directs us to the report issued by the Indiana Utility Regulatory Commission which concluded that gas had been leaking from the corroded pipeline for two weeks. Downs also designated the affidavit of Dr. Douglas B. Chisholm, an expert in the field of natural gas and odorants, who testified that natural gas was present in the Downs' basement at detectible levels for days prior to the explosion. Tests performed by the Indiana Utility Regulatory Commission indicate that significant concentrations of natural gas remained in the soil almost twenty-four hours after the gas line had been turned off on the morning after the explosion. Dr. Chisholm testified in his affidavit that because "[t]he rate that gas dissipates at atmospheric pressure is approximately equal to the rate that gas will accumulate under the same conditions," one could assume that gas had been accumulating in the Downs' basement over a period of days.
Chisholm further stated that accumulated gas in the...
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