Westbrook v. Atlanta Gas Light Co.
| Decision Date | 20 December 2016 |
| Docket Number | A16A2072 |
| Parties | WESTBROOK et al. v. ATLANTA GAS LIGHT COMPANY. |
| Court | Georgia Court of Appeals |
Christopher Dorian Britt, Jeremy Springer McKenzie, Savannah, for Appellant.
Ryburn Clay Ratterree, Russell James Rogers, Atlanta, for Appellee.
Kevin Westbrook and Shaunda Gould brought this lawsuit against Atlanta Gas Light Company ("AGL") over a residential natural gas explosion that physically injured the plaintiffs. The plaintiffs appeal the trial court's grant of summary judgment to AGL, arguing that the trial court erred by finding that AGL's actions involving a pre-explosion service call did not proximately cause their injuries and that a warning provided by AGL was adequate as a matter of law. With the benefit of oral argument, we find that the trial court did not err in granting summary judgment for those reasons.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Ass'n of Savannah v. Chatham Cty. , 276 Ga. 243, 245 (1), 577 S.E.2d 564 (2003).
So viewed, this case stems from an explosion that occurred on November 4, 2010, at a detached apartment on residential property owned by Herschel Thomas. Some time prior to the accident, Thomas had arranged for the natural gas to both the apartment and the main house (in which he lived with his family) to be turned off, because the outbuilding was vacant and gas was not being used in the main house. Thomas subsequently agreed to rent the outbuilding to Westbrook, a co-worker.
In anticipation of Westbrook living in the apartment, Thomas requested (via a natural gas marking company) that AGL turn the gas back on. An AGL field representative, Kenny Newell, visited the home on October 22, 2010. Thomas was not at home at the time. Tiffany "Buffy" Northcutt, the 20-year-old girlfriend of Thomas' stepson, Vincent Gardner, was at the house to meet the AGL representative. Gardner informed Northcutt that the AGL representative was coming, based on a conversation with his stepfather. Although Thomas testified that Northcutt was not his "agent," Northcutt testified that meeting the AGL representative was her reason for being at the house:
After being let into the house, Newell found a note in the kitchen asking him to check the gas line behind the electric range to see if it needed to be capped. He capped the line behind the stove and inspected a furnace in the attic. He subsequently examined the gas meter, unlocked it, and turned the gas on. The meter showed there was a leak in the fuel line or an open line so he turned the gas back off. After confirming that "everything was off" in the house, Newell turned the gas back on and let it run for a few seconds before going into the house again and determining that he "didn't smell anything inside." Newell deposed that, rather than take further steps to determine the location of the leak, he "left the meter off in a safe and secure position where no gas would escape unless it was physically turned on by someone." He did not, however, replace the lock that he previously had removed from the meter. Newell deposed that, at the time he made his service call, he was not aware of the existence of the apartment behind the house.
Newell filled out a warning card before he left. The top of the card read: Below that warning, an X indicated that there was a "[l]eak in house piping[.]" Newell also handwrote, Newell marked with an X a line that said, "Have the qualified agency/person connect and/or activate the appliance." An affirmation on the same card, which was signed by Northcutt, read:
I have been duly notified of the condition of the foregoing equipment and I will not use nor permit its use by any person until the listed condition(s) is corrected. I further understand that I must ensure that only a qualified agency or person performs the repairs. A person not experienced and qualified in this type work is not allowed to perform the repairs or turn the gas on.
Newell left one copy of the card with Northcutt. Consistent with a checked entry on the card, Newell testified that he left another copy of the card on the meter. In his deposition, however, Thomas disputed whether Newell really left a card on the meter.
Newell deposed that he explained the situation to both Northcutt and Gardner, telling them that there was a leak in the fuel line, that he was leaving the meter off, and that a plumber was needed. Northcutt deposed that she did not recall having such a conversation with the AGL representative:
Gardner testified that, in fact, he was not home when Newell came by, but had gone out to pick up some food.
Northcutt told Thomas that the AGL employee told her that Thomas needed to arrange for someone else to come to the house to turn on the gas. Northcutt did not tell Thomas that the AGL employee could not turn the gas on because there was a leak in the line. Northcutt deposed that she did not recall whether she gave Thomas the copy of the card the AGL representative left with her, saying she might have left the card at the house when she left, but Thomas testified that he saw it. Specifically, Thomas testified as follows:
Thomas deposed that he did not understand the card to mean that he had a leak in his gas system. Thomas understood "that the meter had been left off and that a plumber was supposed to come and do whatever needed to be done before the gas was turned on" and that "everything was good."
Thomas asked a friend named John, who had performed odd jobs for him in the past, to turn the gas on. Thomas was not home when John came to perform the work, but Thomas understood that John "turned [the gas] on." Thomas testified that he did not know the extent of John's background in plumbing, but doubted John was trained as a plumber.
On the morning of November 4, 2010, Westbrook visited the apartment to move in some of his personal belongings. Westbrook was accompanied by Gould, an acquaintance. Westbrook unloaded items from his vehicle and placed them in the apartment, making several trips between the vehicle and the apartment. Westbrook did not smell anything unusual in the apartment, although he noted that it smelled "old" as was the case during his earlier visits. As Westbrook prepared to leave, he ignited a lighter to light some incense while standing by the open door of the apartment, to get rid of the "old" smell. As soon as Westbrook ignited his lighter, there was an explosion that set the apartment on fire. Westbrook was hospitalized for burns on his hands and face. Gould, who was further into the house behind Westbrook when he ignited his lighter, also was injured. A fire department investigation determined that an open natural gas line was the source of the explosion.
On September 27, 2010, a few weeks before Newell visited Thomas' property, AGL's corporate superintendent decreed via e-mail that anytime an AGL representative turns off an AGL-owned gas meter valve, "it needs to be locked." Newell was trained on this new policy, and multiple AGL witnesses testified that...
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