Reed v. Smith Lumber Co.

• Decision Date: 15 July 1980
• Docket Number: No. 14557,14557
• Citation: 165 W.Va. 415,268 S.E.2d 70
• Court: West Virginia Supreme Court
• Parties: Maxine P. REED et al. v. SMITH LUMBER CO., etc. et al.

Page 70

268 S.E.2d 70

165 W.Va. 415

Maxine P. REED et al. v. SMITH LUMBER CO., etc. et al.

No. 14557.

Supreme Court of Appeals of West Virginia.

July 15, 1980.

Syllabus by the Court

"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Aetna Casualty and Surety Company v. Federal Insurance Company, 148 W.Va. 160, 172, 133 S.E.2d 770, 778 (1963), Syllabus Point 3.

Preiser & Wilson, Barbara H. Fleisher and John H. Kozak, Charleston, for appellants.

Love, Wise, Robinson & Woodroe and Charles M. Love, Charleston, for appellee-Carnegie.

HARSHBARGER, Justice:

This appeal challenges a summary judgment entered by the Circuit Court of Doddridge County. Mr. and Mrs. Reed sued Smith Lumber Company, Carnegie Natural Gas Company, and Amana Refrigeration Company for improper installation, assembly, and inspection of a gas furnace. Mrs. Reed alleged that she suffered severe, permanent injuries to her body and mind caused by gas leakage from the furnace.

Carnegie served and filed a "no genuine issue of material fact" motion for summary judgment, Rule 56(b) and (c), R.C.P., relying on the pleadings, depositions, and answers to interrogatories. The Reeds did not respond to the motion by counter-affidavit, motion, or traverse of any kind; and after a hearing, the trial judge granted it.

"As a general proposition, issues of negligence are not ordinarily susceptible to adjudication upon a motion for summary judgment made pursuant to Rule 56 of the West Virginia Rules of Civil Procedure . . . ." Anderson v. Turner, 155 W.Va. 283, 184 S.E.2d 304 (1971), Syllabus Point 7. "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence . . . is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Hatten v. Mason Realty Company, 148 W.Va. 380, 135 S.E.2d 236 (1964), Syllabus Point 5.

We have written about the use of products of discovery as bases for summary judgment:

A party may often undertake very little discovery or limit the discovery to certain critical areas with the knowledge that he has the requisite proof available without the necessity of any further discovery. Frequently, discovery depositions of the parties or their key witnesses do not reflect all relevant facts. This is because these depositions are taken by adverse counsel and the deponents do not care to volunteer information and, therefore, they give limited answers to the questions. While discovery procedures are useful to develop the facts of a case, there is no requirement that all facts must be developed through discovery, and certainly no grounds for the assumption that they have been developed by discovery. Masinter v. WEBCO Co., W.Va., 262 S.E.2d 433, 436 (1980).

It is improper to pre-try a case on a summary judgment motion. Masinter v. WEBCO, supra. And, most pertinent: "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Aetna Casualty and Surety Company v. Federal Insurance Company, 148 W.Va. 160, 172, 133 S.E.2d 770, 778 (1963), Syllabus Point 3.

There are material facts at issue here and inquiry about facts is desirable to clarify the law about Carnegie's liability. A Carnegie Gas employee testified by deposition that he went to the Reed home on August 27, 1971, to change meters. At that time, he made a customary inspection to ascertain whether the fire in the furnace was venting properly. He informed Mrs. Reed that the furnace was in backwards, but turned on the gas, and lit the furnace. When called back to correct a problem of oil in the gas lines on March 23, 1973, he noticed that the fire was not vented properly. At that time, Carnegie shut off the gas. There is also testimony from Mrs. Reed's deposition that when the furnace was lit in 1971, the house filled with smoke. So there were obviously questions of fact about Carnegie's knowledge of a dangerous condition. Then there is the ultimate question about its negligence.

In Long v. City of Weirton, W.Va., 214 S.E.2d 832 (1975), Syllabus Point 2, we noted that:

Appropriate and immediate response to hazards attendant to known gas leaks is a duty of one who is charged with controlling substances of dangerous character; reasonableness of response to such hazards is normally a question for the jury.

The gas company, as a distributor of a dangerous substance, has a duty to the public to exercise care and diligence proportionate to any danger, which is known or should be known to the utility. This duty includes "inspection, oversight and superintendence." Groff v. Charleston-Dunbar Natural Gas Co., 110 W.Va. 54, 156 S.E. 881, 882 (1931).

Other states recognize the dangerous character of natural gas and the correlative duty of utility companies that furnish it: Hammond v. Nebraska Natural Gas Company, 204 Neb. 80, 281 N.W.2d 520 (1979); Denniston v. Skelly Oil Company, 47 Ill.App.3d 1054, 6 Ill.Dec. 77, 362 N.E.2d 712 (1977); Suiter v. The Ohio Valley Gas Company, 10 Ohio St.2d 77, 225 N.E.2d 792 (1967); Wolff v. Buzzards Bay Gas Company, 353 Mass. 57, 228 N.E.2d 94 (1967); Brown v. Wisconsin Natural Gas Company, 59 Wis.2d 334, 208 N.W.2d 769 (1973); Firestone v. R. H. Lincoln, Inc., 23 Ill.App.3d 320, 319 N.E.2d 60 (1974); Brauer v. James J. Igoe & Sons Construction, Inc., N.D., 186 N.W.2d 459 (1971); Haddad v. Louisville Gas & Electric Company, Ky., 449 S.W.2d 916 (1979); Watkins v. Beicker, Tex.Civ.App., 579 S.W.2d 519 (1979); City of Richmond v. James, 170 Va. 553, 197 S.E. 416 (1938); Southern Indiana Gas Company v. Tyner, 49 Ind.App. 475, 97 N.E. 580 (1912); Schmeer v. Gaslight Company, 147 N.Y. 529, 42 N.E. 202 (1895).

In Bell v. Huntington Development & Gas Company, 106 W.Va. 155, 145 S.E. 165, 168 (1928), plaintiff sued the public utility after a natural gas explosion at her home. She had called the gas company to check her meter because she believed that her bills were excessive. Employees of the utility repaired her gas meter a few hours before the accident. The Court reasoned:

This action is based on a charge of negligence, and the ordinary rules governing the proof of negligence obtain here. Wherein lies any act of omission or commission on the part of the gas company, or its employees, which brought about or contributed to this unfortunate accident? We are not pointed thereto, except the plaintiff says that the company, having received notice that gas was leaking in the house, did not use due and reasonable diligence either to repair the leak or cut the gas off from the house, and it is said that whether or not such diligence was used is a jury question. Such is, in fact, a...