Turner v. Northern Ill. Gas Co.

• Decision Date: 28 June 2010
• Docket Number: No. 2-08-0878.,2-08-0878.
• Citation: Turner v. Northern Illinois Gas Co., 401 Ill.App.3d 698, 930 N.E.2d 418, 341 Ill.Dec. 208 (Ill. App. 2010)
• Parties: Nancy TURNER and Stefanie Turner, Plaintiffs-Appellants,v.NORTHERN ILLINOIS GAS COMPANY, d/b/a Nicor Gas Company, Defendant-Appellee (American Family Mutual Insurance Company, Plaintiff).
• Court: Appellate Court of Illinois

401 Ill.App.3d 698

930 N.E.2d 418

341 Ill.Dec. 208

Nancy TURNER and Stefanie Turner, Plaintiffs-Appellants,v.NORTHERN ILLINOIS GAS COMPANY, d/b/a Nicor Gas Company, Defendant-Appellee (American Family Mutual Insurance Company, Plaintiff).

No. 2-08-0878.

Appellate Court of Illinois Second District.

April 28, 2010.

Rehearing Denied June 28, 2010.

COPYRIGHT MATERIAL OMITTED

Kirsten M. Dunne, Goldberg, Weisman & Cairo, Ltd., J. Thomas Chute, Rhatigan & Chute, LLC, Chicago, for Appellant.

Troy A. Lundquist, Langhenry, Gillen, Lundquist & Johnson, LLC, Joliet, Adam K. Mortara, Bartlit, Beck, Herman, Palenchar & Scott, LLP, Chicago, for Appellee.

Justice BURKE delivered the opinion of the court:

On May 28, 2002, plaintiffs, Nancy Turner and her teenage daughter, Stefanie Turner, were seriously injured when a natural gas explosion destroyed their rental home. Case number 02-L-243 is a personal injury case that plaintiffs filed against defendant Northern Illinois Gas Company, d/b/a Nicor Gas Company, which had supplied and regulated the gas supply to the building. Case number 04-AR-174 is a subrogation action that American Family Mutual Insurance Company (American Family) filed against defendant to recover sums American Family paid to or on behalf of its insured, Nancy Turner, for personal property damages she incurred from the explosion.

Plaintiffs' fifth amended complaint alleged that defendant was negligent for failing to thoroughly inspect the gas piping in their basement and to warn plaintiffs of any risk posed by the condition of the piping. Before the date of the explosion, plaintiffs neither detected nor alerted defendant to a possible gas leak. However, plaintiffs alleged that defendant received constructive notice of a problem when defendant's employee was at the premises on a service call 17 months before the explosion. The trial court granted defendant summary judgment on the ground that defendant owed no duty to inspect for the defect or to warn plaintiffs. We affirm.

FACTS

Plaintiffs were residing at 2025 Eggleston Road in Rockford on May 28, 2002, when they were seriously injured by the natural gas explosion, which destroyed the building. Natural gas is odorless in its original state. The chemical ethyl mercaptan which is a sulfur component, is added as an odorant to give natural gas its distinctive smell so leaks can be detected more easily. On the night before the explosion, Stefanie, who was a junior in high school at the time, arrived home at 10:30 p.m. She detected a faint odor when she walked into the home, but she did not identify it as natural gas because she did not know what natural gas smells like. The odor seemed to come from the kitchen, so Stefanie believed it was from something her mother had cooked. Nancy was in bed at the time, and Stefanie went to bed also.

On May 28, 2002, Nancy woke up around 6:30 a.m. and smelled what she thought was natural gas. Nancy knew that a gas leak created a risk of fire or an explosion. Stefanie recognized the odor as the same she had detected the night before, but the smell had grown much stronger. Following the odor, Nancy and Stefanie descended the basement stairs. Stefanie stated in her affidavit that the staircase was enclosed. The basement was unfinished, but Nancy had placed a bed in the southeast corner of the basement for her son to use when he came home from college. At the bottom of the stairs, various natural-gas-fueled appliances were ahead and to the right in the northwest corner of the basement. Nancy turned left and heard a hissing noise and saw a broken pipe in the ceiling of the southeast corner above the bed. According to Stefanie, if a person stood near the appliances in the northwest corner, the staircase would block the view of the southeast corner where the leak occurred.

Nancy described the pipe as hanging in a “V” shape and separated at the bottom. Stefanie saw that the break in the pipe appeared to be directly below the gas stove in the kitchen upstairs. The break was in a long stretch of pipe that appeared to have broken at a connection point.

Nancy told Stefanie that they needed to get out of the house. Nancy walked up the stairs to call 911, and Stefanie walked to the laundry area of the basement to retrieve a pair of pants to wear. Nancy testified that the explosion occurred right after she dialed the “9” on the telephone. Stefanie testified that she had reached the foot of the basement stairs when she heard a tick and the house blew up.

Nancy was thrown to the front yard, and her left leg was broken in four places and a portion of her foot was severed completely. Nancy also suffered a fractured right clavicle and a collapsed lung. Stefanie felt intense heat during the explosion and could not free herself from the rubble because her right foot was trapped. Stefanie screamed and was helped by neighbors. Stefanie suffered a collapsed lung and severe burns to her arms, hands, abdomen, and back. The explosion was traced to the gas leak in the exposed pipe in the southeast corner of the basement.

Following the explosion, Mark Marinaro, a fire scene investigator for the City of Rockford, investigated the scene. Jerry Roberts, one of defendant's representatives, told Marinaro that the gas supplied to plaintiffs' residence contained the odor additive. Marinaro testified at his deposition that he did not know whether there was any deficiency in the gas piping. Marinaro concluded that defendant's exterior gas meter was not involved in the gas leak at plaintiffs' residence and that no other residence on the street had been leaking gas. Marinaro concluded that the source of the ignition was either the furnace or the water heater and that the explosion was caused by a single leak in the broken pipe that Nancy had identified.

The parties submitted evidence of the installation and maintenance of the gas piping. In 1995, Maynard Jarl built the duplex at 2023-25 Eggleston Road. Warren Plumbing Company installed the interior plumbing and gas lines. In 1998, the City of Rockford sent Latisha Cardeno, a building inspector, to evaluate the building. Cardeno's inspection ticket does not show any code violations or problems with the gas piping.

On December 5, 2000, Carol Miranda resided at 2025 Eggleston and called defendant to report that she had no gas or hot water. Defendant's technician Gerald Dray determined that the exterior gas meter was “stuck” and would not send gas to the residence. Dray performed the ordinary repair for the problem. He turned off the gas service, replaced the meter, reactivated the gas service, and went inside to relight the pilot lights on the gas-fueled appliances, including the furnace and the water heater in the basement.

Plaintiffs introduced evidence of service calls to the adjacent apartment, which was a mirror image of plaintiffs' residence. On May 18, 1999, Cindy Sommers called defendant about an odor from her range at 2023 Eggleston. The record of the service call contains the note “Left Range Valved Off,” which indicates that the technician must have found a condition hazardous enough to warrant shutting off the appliance. The technician left a hazard tag on the range, and a copy of the tag would have been returned to defendant.

On February 1, 2001, which was just two months after the meter replacement at 2025 Eggleston, Sommers reported poor gas pressure at 2023 Eggleston. Defendant's technician responded to the call and determined that Sommers' meter also was stuck. The meter was replaced.

Plaintiffs moved into 2025 Eggleston on March 1, 2001. Until the explosion on May 28, 2002, plaintiffs' only contact with defendant was to initiate gas service.

In 2002, plaintiffs filed a complaint against Jarl, who was the owner and general manager of the premises, and against Warren Plumbing Company, which had installed the gas piping. Plaintiffs alleged that their interior gas piping had been installed negligently and had caused the explosion. In 2004, plaintiffs added defendant to the suit. Plaintiffs settled with Jarl and Warren Plumbing Company and filed a fifth amended complaint, against defendant alone.

The fifth amended complaint alleged the negligent operation of defendant's gas facilities, such as meters, and negligent failure to inspect or to warn plaintiffs about the condition of the customer-owned interior gas piping. Plaintiffs alleged that, “for some time” before the explosion, the gas piping created hazardous conditions, including the following: the gas lines were not piped according to particular codes; the pipes lacked adequate hangers; the hangers were insufficiently spaced; the pipes were connected with improper couplings and bushings; at least one of the pipes was cross-threaded; a pipe was uncapped; and a pipe in the basement was not properly affixed to the ceiling. Plaintiffs alleged that defendant knew or should have known of these hazardous conditions.

Plaintiffs allege that defendant owed and breached duties (1) “to inspect, maintain, and regulate the gas service at 2025 Eggleston Road in Rockford, Illinois in a reasonably safe manner for the safety of its users, in particular the plaintiffs” and (2) “to warn the plaintiffs * * * of any dangerous and/or hazardous conditions related to the gas lines, gas meter, gas service and/or gas appliances” that defendant knew or should have known were present. Plaintiffs alleged that defendant acted negligently and proximately caused the injuries by inadequately inspecting the premises, failing to correct the dangerous conditions, failing to warn plaintiffs of the risk, and failing to provide adequate gas service.

Defendant moved for summary judgment under section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2008)). Plaintiffs abandoned their allegation of negligent operation of defendant's gas facilities, but they defended their claim for negligent failure to inspect or to warn plaintiffs about the interior gas piping.

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