C.F.R. P192.317. Van Houten-Maynard argues that the alleged breach of duty proximately caused her husband's death and other damages (Cplt. 15-16).
In response to plaintiff's claims, ANR moved the court for summary judgment, arguing that it owed no legal duty to Van Houten-Maynard or her decedent. We denied that motion. Van Houten-Maynard v. ANR Pipeline Co., No. 89 C 377, 1993 U.S. Dist. LEXIS 5444, 1993 WL 134887 (N.D.Ill. Apr. 22, 1993). In so doing, we focused on the federal regulation governing exposed pipelines, 49 C.F.R. P192.317, since under Illinois law a violation of a safety standard is relevant to the issue of whether a duty exists. O'Conner v. Commonwealth Edison Co., 748 F. Supp. 672, 676 (C.D.Ill. 1990), aff'd, 13 F.3d 1090 (7th Cir.), cert. denied, 129 L. Ed. 2d 838, 114 S. Ct. 2711 (1994). Part 192.317 requires that facilities like ANR's "be protected from accidental damage by vehicular traffic or other similar causes either by being placed at a safe distance from the traffic or by installing barricades." 49 C.F.R. P192.317. ANR argued that it had satisfied the regulation's requirements by placing its facility 116 feet from the roadway. However, because ANR had presented no evidence that 116 feet was a safe distance, we held that "the present record does not require the conclusion that a reasonable person could not find that ANR violated the regulation" and denied the motion for summary judgment.
Van Houten-Maynard v. ANR Pipeline Co., No. 89 C 377, 1993 U.S. Dist. LEXIS 5444, 1993 WL 134887, at *4 (N.D.Ill. Apr. 22, 1993).
ANR now presents a second motion for summary judgment -- its Renewed Motion for Summary Judgment Based on New Evidence and Expert Testimony -- and again argues that it owed no duty to plaintiff or her decedent. As before, the focus is on ANR's compliance with the applicable federal pipeline regulation. To convince the court that its second motion is not simply a repetition of the first, ANR points to two new aspects of the case. First is the testimony of its expert, Joseph Caldwell, that P192.317 was not in force at the time ANR's facility was built. Rather, the governing regulation was the 1968 version of USA Standard Code for Pressure Piping B31.8, a standard promulgated by the American Society of Mechanical Engineers (Dep. of Joseph Caldwell at 98). Caldwell testified (and plaintiff does not dispute
) that pursuant to the Natural Gas Pipeline Act of 1968 the federal Office of Pipeline Safety adopted B31.8, which had been the industry standard, as an interim regulation before P192.317 came into effect. Id. at 61-62. Therefore, B31.8, not P192.317, is the appropriate standard against which to measure ANR's conduct. In addition to this new legal standard, ANR presents new facts: expert testimony that placing a meter station 100 feet from the roadway would meet the regulation's requirements (Dep. of Joseph Caldwell at 57, 65). ANR argues that, in light of the new legal and factual aspects of the case, it is now entitled to summary judgment.
We disagree. First, beginning with the legal point, B31.8 does not differ significantly from P192.317. Experts for both sides agree that B31.8 was P192.317's predecessor and that P192.317 was modeled after it (Dep. of D. Michael Smith at 14; Dep. of Joseph Caldwell at 103). Plaintiff's expert says that the two are interchangeable (Dep. of D. Michael Smith at 36-37, 74), and defendant's expert says that the two are basically the same (Dep. of Joseph Caldwell at 103). If this were not enough, the language of the two provisions is nearly identical. B31.8 requires that "where pipelines and mains are exposed . . . [they] shall be reasonably protected by distance or barricades from accidental damage by vehicular traffic or other causes." Similarly, P192.317 mandates that pipelines "must be protected from accidental damage by vehicular traffic or other similar causes either by being placed at a safe distance from the traffic or by installing barricades." Although it is conceivable that Congress and the Department of Transportation intended P192.317's "safe distance" to be construed differently from B31.8's "reasonably protected by distance," ANR has presented no evidence to that effect, and the history and language of the two standards (as well as both experts' testimony to their interchangeability) suggest otherwise.
Thus the switch to B31.8 gives ANR no new legal basis for its summary judgment motion.
Similarly, the new evidence ANR presents (in the form of Caldwell's testimony that the meter station complied with B31.8) does not provide a basis for altering our earlier decision. Testifying to how far from the highway ANR's meter station should have been located under the B31.8 standard, plaintiff's expert stated that 263 feet would be the required distance (Dep. of D. Michael Smith at 57), while defendant's expert said 100 feet would be sufficient (Dep. of Joseph Caldwell at 57, 65). Since the station was actually 116 feet from I-80, this dispute is material, that is, its resolution could affect the outcome of the case. See Whetstine v. Gates Rubber Co., 895 F.2d 388, 392 (7th Cir. 1990) (a fact is material only if it could affect a case's outcome). We cannot grant ANR summary judgment in the face of such disagreement since factual disputes between experts, like other factual disputes, are reserved for the trier of fact. Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir. 1990); Egger v. Phillips, 669 F.2d 497, 502 (7th Cir. 1982), rev'd on reh'g on other grounds, 710 F.2d 292 (7th Cir.), cert. denied, 464 U.S. 918 (1983). ANR urges that we can resolve the experts' difference of opinion about what constitutes reasonable protection under B31.8 by resorting to Illinois law.
Relying on a line of recent cases from the Illinois Supreme Court rejecting the liability of property owners for injuries that occurred when vehicles strayed onto their land, ANR asserts that because its facility was located beyond where vehicles might go in the ordinary and foreseeable course of travel, it was "reasonably protect[ed]" for purposes of B31.8. This argument mixes apples and oranges. It assumes that what is reasonable under B31.8 -- a federal regulation -- is the same as what is reasonable under Illinois law. We do not think that the standard of care ordinarily applicable to landowners trumps a safety standard applicable to a specific use, presumably dictated by the enhanced risks of that use. To illustrate by hyperbole, we doubt that Illinois law would absolve from liability a nuclear facility vulnerable to a meltdown by impact if such an event occurred because it was sited, unprotected, adjacent to a busy highway. Even if we found that ANR had no duty to plaintiff under Illinois common law because it placed its meter station a reasonable distance from the roadway,
that conclusion would not necessarily permit us to determine as a matter of law whether the station was reasonably protected for purposes of B31.8. Rather, the determination must be made by the trier of fact based on an evaluation of the experts' conflicting testimony.
In sum, the switch from P192.317 to B31.8, and the addition of Caldwell's testimony that ANR's facility was in compliance with B31.8, do not persuade us to alter our earlier determination that ANR is not entitled to summary judgment. Since ANR's renewed motion presents no other new facts or legal theories to convince us to rule in its favor, the motion is denied.
The defendant's renewed motion for summary judgment is denied.
JAMES B. MORAN
Chief Judge, U.S. District Court
September 26, 1994.