Constance Tondra Henry v. Atlanta Gas Light Company ( 2020 )

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 11, 2020
In the Court of Appeals of Georgia
A19A1990. HENRY et al. v. ATLANTA GAS LIGHT COMPANY.
DOYLE, Presiding Judge.
Constance Tondra Henry (“Henry”), acting individually and as the
representative and surviving daughter of Patricia Ann Henry and Samuel Christopher
Henry, is the plaintiff in a personal injury and wrongful death action against Atlanta
Gas Light Company (“AGL”), based on a natural gas explosion caused by a
residential gas furnace. Henry appeals from the grant of summary judgment to AGL,
contending that the trial court erred by ruling that, under the facts of this case, the
injuries at issue did not arise from a breach of a legal duty owed them by AGL. For
the reasons that follow, we affirm.
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.
A de novo standard of review applies to an appeal from a grant of
summary judgment, and we view the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most favorable to
the nonmovant.1
So viewed, the record shows that Andrea Wood owned a rental home, and in
preparation for new tenants, she called AGL to ask them to turn on the natural gas
service at the rental home. Nobody was home, but Wood made arrangements to allow
AGL access into the house.
On September 12, 2015, Richard West, a field specialist for AGL, visited the
house to turn on the gas. The gas meter supply valve was locked in the off position,
and consistent with AGL policy, West performed a fuel line and appliance inspection
to discover any safety concerns before turning on the gas service. As part of this
process, he unlocked the gas meter valve to check for leaks downstream of the gas
meter and found none.2 He also performed a visual inspection of the appliances and
discovered problems with both the water heater and the furnace, specifically noting
1
(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1)
(486 SE2d 684) (1997).
2
This test is called “spotting” the meter: turning on the gas at the meter with
all household appliances turned off and observing the meter for five minutes. If the
meter shows that the downstream gas line is holding pressure, i.e., the meter stays in
the same spot, this indicates that no gas is flowing due to a leak in the line.
2
that the gas supply line to the furnace was a flexible line that improperly led into the
furnace without a grommet in the opening.3 The grommet is a protective ring around
the inside of the supply-line opening in the furnace cabinet. The grommet is intended
to minimize the risk that vibration by the thin metal edge of the furnace cabinet would
rub a hole in the flexible line, causing a gas leak. West also observed that the furnace
gas line lacked a sediment trap, and the furnace thermostat was inoperable, so he
could not further check the furnace operation or perform repairs.
Based on his observations of the furnace, West did not attempt to light it, and
instead, he turned off the dedicated furnace supply valve (“cut-off valve”). To warn
others about the condition of the flexible furnace line, West wrapped warning tape
around the furnace cut-off valve, so that someone would have to physically remove
the tape before turning on the gas supply to the furnace. Also, West attached a
warning card to the furnace, writing a notation about the flexible gas line, and he left
a copy of the written warning card on the kitchen counter. Specifically, with respect
to the furnace, the warning cards stated:
3
The water heater required an additional combustion air vent in the utility
room in which it was installed. It is undisputed that the water heater was not the cause
of the explosion.
3
The following gas appliance/equipment has been turned/left off due to
the below reasons: . . . Furnace. . . Explanation: thermostat not
displaying, no sediment trap, flex line thru [sic] top of furnace, left off.
. . . DO NOT CONNECT OR USE THE TAGGED APPLIANCE(S)
OR CUSTOMER PIPING UNTIL YOU HAVE A PROPERLY
LICENSED AND QUALIFIED AGENCY/PERSON PERFORM
THE NECESSARY REPAIRS.4
After leaving the warning cards and the warning tape on the furnace cut-off valve,
West left the house with the house gas supply on and the furnace gas supply off.5
Soon thereafter, the property owner’s stepson, Scott Wood, was preparing the
house for the new tenants and discovered that the house did not have hot water.6 Scott
also noticed the warning card in the kitchen and called the owner to tell her that the
furnace gas supply could not be turned on until the furnace was serviced. Andrea
Wood, the owner, called AGL to resolve the issue, and AGL indicated that Andrea
needed to “get somebody out there” to fix the appliances. Andrea then contacted a
4
(Emphasis in original.)
5
West deposed that AGL policy did not require a resident to be at the house
if the gas was turned on and warning cards are left.
6
The record is not clear as to why hot water was not available.
4
plumber to address the water heater, and she called Houser Heating and Air
Conditioner to work on the furnace.
Houser sent a technician to the house on September 24, 2015. The technician
saw the warning card on the furnace, and he conducted an independent examination
of the appliances. The technician agreed that the furnace needed a hard gas inlet pipe
instead of the flexible line, and he also noticed that certain components needed
cleaning. The technician prepared a quote for the work, and after receiving
authorization, the technician returned a few days later to perform the work.
During that process, the technician replaced the flexible line leading into the
furnace with a hard pipe, but he reused the flexible line to reattach the gas supply line
and the newly installed hard pipe going into the furnace. Due to the length of the
flexible connector, it curved and made contact with the furnace exterior. The
technician then opened the furnace cut-off valve, and the new tenant was able to
operate the furnace.
Over time, the furnace housing vibrated as the blower motor ran, and the
friction between the housing and the flexible connector created a hole in the flexible
connector. On June 12, 2016, approximately nine months after AGL turned on the
gas, a gas explosion occurred at the house, causing injuries to Henry and killing two
5
members of her family. The parties do not dispute that the flexible furnace gas line
was the source of the explosion, and there is expert testimony based on data from the
gas meter that the flexible connector began leaking on June 5 and catastrophically
ruptured on June 12.
Henry sued Houser and AGL, and her father also sued on behalf of himself and
his son’s estate. The two cases were consolidated into the present case, and after the
unrelated death of Henry’s father, she is the plaintiff on behalf of herself, the estate
of Patricia, and the estate of her father. Houser settled the claims against it, and AGL
successfully moved for summary judgment. Henry now appeals from the grant of
summary judgment to AGL.
1. Henry argues that the trial court erred by concluding as a matter of law that
the injuries at issue did not arise from a breach of duty by AGL. We disagree.
As a general matter of tort law,
the essential elements of a negligence claim are the existence of a legal
duty; breach of that duty; a [sufficient] causal connection between the
defendant’s conduct and the plaintiff’s injury; and damages. Thus, the
threshold issue in a negligence action is whether and to what extent the
defendant owes a legal duty to the plaintiff. This issue is a question of
law. A legal duty sufficient to support liability in negligence is either a
duty imposed by a valid statutory enactment of the legislature or a duty
6
imposed by a recognized common law principle declared in the reported
decisions of our appellate courts.7
In the context of a natural gas supplier, Georgia common law defines the gas
supplier’s duty as follows:
[A]bsent actual knowledge of a dangerous condition, a gas supplier is
not generally liable beyond the meter and service pipes. Where . . . gas
appliances on private property, [are] owned or controlled by the owner
or occupant of the premises, a company which merely furnishes . . . gas
for such respective appliances is not responsible for the . . . condition of
the . . . gas appliances, . . . and is not liable to the owner or occupant or
to third persons on the premises for injuries, . . . caused by such
defective condition. The rule is subject to the exception that whenever
such . . . gas is supplied with actual knowledge on the part of the one
supplying it of the defective and dangerous condition of the customer’s
appliances[,] he is liable for injuries caused by the . . . gas thus supplied
for use on such defective and dangerous appliances, but no duty of
inspection rests on the one supplying the electricity or the gas from the
mere fact of rendering such service to the customer owning or
controlling the equipment.8
7
(Punctuation and emphasis omitted.) Garvin v. Atlanta Gas Light Co., 334
Ga. App. 450, 453 (1) (779 SE2d 687) (2015).
8
Id. at 453-454 (1) (a).
7
Here, it is undisputed that the explosion resulted from a hole in the flexible gas
line that developed over the course of nine months after it was improperly installed
by Houser. It is also clear that AGL had no knowledge of Houser’s improper repair
when AGL first visited the property to turn on the gas — that hazard was later caused
by Houser. Further, the specific hazard identified by West and communicated to
Henry was actually remedied by Houser when it installed the hard gas pipe into the
furnace.
Based on this record, Henry cannot meet her burden to identify a duty breached
by AGL. Consistent with AGL policy, after discovering the initial hazard, West
placed warning cards on the appliance and on the kitchen counter, he turned off the
gas to the furnace, and he wrapped the valve in warning tape so that it could not be
turned on without removing the tape. The fact that Houser performed a negligent
repair cannot be attributed to AGL because “[a] gas company is not an insurer of the
safety of its customers and their agents and invitees, but is liable only for [its] acts of
negligence.”9 AGL left the furnace in a safe condition (with the gas supply valve
9
Womack v. Central Ga. Gas Co., 85 Ga. App. 799, 803 (70 SE2d 398) (1952).
See also Westbrook v. Atlanta Gas Light Co., 340 Ga. App. 11, 18 (1) (795 SE2d 320)
(2016) (“[I]t is plain that the subsequent actions of [the property owner], assisted by
his handyman, to turn on the gas without fixing the leak was a ‘new cause . . .
sufficient to stand as the cause of’ the explosion.”).
8
turned off and taped) and warned the property owner of the hazard it discovered. No
one notified AGL of any repair or requested it to reinspect the gas appliances; AGL
simply had no knowledge of the hazard that caused the injuries in this case. Absent
such knowledge, AGL had no duty to further inspect its customer’s gas lines after
warning the customer to repair the hazards known to it.10 Accordingly, the trial court
correctly granted summary judgment to AGL.
2. Henry’s remaining enumerations are moot.
Judgment affirmed. Coomer and Markle, JJ., concur.
10
See Garvin, 334 Ga. App. at 454 (1) (a) (“[K]nowledge of the existence of
the customer[-]installed gas line to the outbuilding, without knowledge of an actual
gas leak, is simply insufficient to give rise to a duty on the part of AGL to inspect the
line to ensure that it was capped, instead of terminating with a valve.”). See also
Goodhart v. Atlanta Gas Light Co., 349 Ga. App. 65, 75 (2) (b) (825 SE2d 465)
(2019) (“[W]e certainly cannot say that AGL created a risk with the loose flexible
connector behind the dryer because there is no evidence that AGL attached the
connector in the first place, or ever adjusted it after the dryer was installed.”). The
present case is distinct from cases such as Bray v. Atlanta Gas Light Co., 46 Ga. App.
629 (168 SE 96) (1933), in which this Court reversed the grant of AGL’s general
demurrer because AGL had knowledge of open, uncapped gas lines in a house and
did not lock, warn, or otherwise prevent the gas supply to the house from being
turned on by an unknown person.
9