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Adams v. Northern Illinois Gas Co.

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS First District FIRST DIVISION


June 28, 2002

CHRISTY A. ADAMS, AS SPECIAL ADM'R OF THE ESTATE OF JANICE G. ADAMS, DECEASED, PLAINTIFF-APPELLANT,
v.
NORTHERN ILLINOIS GAS COMPANY, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Cook County No. 96 L 00072 The Honorable Sophia Hall, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

UNPUBLISHED

On December 7, 1995, Janice Adams died as a result of an explosion and fire at her home in Calumet City, Illinois. Christy Adams (plaintiff), as special administrator of the estate of Janice Adams, deceased, filed a wrongful death suit against Lucia Georgevich and Northern Illinois Gas Company (NI-Gas). On September 13, 2000, the trial court granted summary judgment in favor of NI-Gas and deemed Georgevich's motion for summary judgment moot. On December 22, 2000, the trial court denied Adams' motion to reconsider. On January 18, 2001, the trial court also denied plaintiff's motion to take evidence depositions to preserve testimony. Adams presents the following issues for review on appeal: (1) whether the trial court erred in granting summary judgment in favor of NI-Gas; and (2) whether the trial court abused its discretion in denying plaintiff's motion to perpetuate testimony.

BACKGROUND

Janice Adams was a 48-year-old mother of two when she died on December 7, 1995, as a result of a natural gas explosion and fire at her home. Christy Adams, as special administrator of the estate of Janice Adams, deceased, originally filed a wrongful death action against the homeowner, Lucia Georgevich, and later added NI-Gas.

Assistant Chief of the Calumet City fire department Dan A. Smits stated in his pretrial deposition that he believed that the fire originated at the home as a result of an explosion involving natural gas. He further opined that the location of the gas flow was the Cobra gas connector.

Plaintiff's expert, accident investigator Charles Lamar, testified that the source of the natural gas leak at the Adams' home was the failure of the flexible connector that connected the back of the range to the house piping, called the Cobra. He further testified that there was no failure in the NI-Gas facilities or the gas meter that led to the explosion. Lamar noted that phosphorus brazing was banned in 1968, and NI-Gas knew for decades about the failure of the "brazed joints," but did not take sufficient action to stop the use of those joints and did not warn the public about them.

Norman Breyer, Ph.D. testified that there was a good deal of information circulated to the gas distributors starting in 1968 regarding the inherent weakness of the Cobra tubing connection and the danger of using brazing compounds that contained phosphorus because it caused the joints to become brittle.

The decedent's ex-husband, Leonard Adams, testified in deposition that he had observed NI-Gas employees read the gas meter in the utility room of the home on occasion, but they did not examine anything in the house other than the meter. In late 1978 or 1980, after having a new clothes drier installed by Sears, a gas leak was detected. Janice Adams called NI-Gas. A NI-Gas employee came to the home and checked a gas pipe that ran along the wall between the meter and the clothes drier. He discovered that it was leaking and tightened the pipe.

On June 21, 2000, NI-Gas filed a motion for summary judgment asserting that it did not owe a legal duty to Janice Adams. Georgevich also filed a motion for summary judgment.

On September 13, 2000, NI-Gas' motion for summary judgment was granted and Georgevich's motion for summary judgment was deemed moot. Plaintiff filed a motion to reconsider the September 13, 2000, order. On December 22, 2000, plaintiff's motion to reconsider was denied.

On January 12, 2001, plaintiff filed an emergency motion to take evidence depositions to preserve expert witness testimony. Plaintiff's emergency motion asserted that she had retained multiple expert witnesses who were "instrumental" to the plaintiff's cause of action, including Charles Lamar, Norman Breyer, and Edward Karnes. Based on the time to complete the appellate process and the age of the plaintiff's experts, plaintiff requested that the testimony of one or more of her experts be preserved in the event that the case was returned for trial. The trial court denied plaintiff's motion, reasoning that "[t]hey're not fact witnesses who are essential to proving the Plaintiff's or Defendant's cases." Plaintiff now appeals the grant of summary judgment in favor of NI-Gas and the denial of her emergency motion to preserve testimony.

ANALYSIS

I.

Plaintiff asserts that NI-Gas owed Janice Adams a common-law duty to use every reasonable precaution to avoid injury to the person or property of its customers and the trial court erred in granting summary judgment in favor of NI-Gas. NI-Gas responds that it owed no duty to plaintiff or her decedent under Illinois common law.

Appellate courts apply a de novo standard when reviewing summary judgment rulings. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party's right to judgment is clear and free from doubt. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Summary judgment is appropriate only when the pleadings, depositions, admissions, and affidavits on file, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Smith v. Allstate Insurance Co., 312 Ill. App. 3d 246, 251, 726 N.E.2d 1 (1999). Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Pyne v. Witmer, 129 Ill. 2d 351, 358-59, 544 N.E.2d 1304 (1989).

To state a cause of action for negligence, the plaintiff must establish: (1) the defendant owed a duty of care; (2) the defendant breached that duty; and (3) the plaintiff incurred injuries proximately caused by the breach. Espinoza, 165 Ill. 2d at 114. If the plaintiff fails to establish an element of the cause of action, summary judgment for the defendant is proper. Espinoza, 165 Ill. 2d at 114.

Whether a legal duty exists is a question of law and is determined by reference to whether the parties stood in such a relationship to each other that the law imposes an obligation on one to act for the protection of the other. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238, 665 N.E.2d 1260 (1996). The factors relevant to the court's imposition of a duty include the likelihood of injury, the reasonable foresee ability of such injury, the magnitude of guarding against the injury, and the consequences of placing that burden on the defendant. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 425, 706 N.E.2d 460 (1998).

It is well-settled in Illinois that "'where a gas company does not install the pipes or fixtures and does not own them and has no control over them it is not responsible for their condition or for their maintenance, and as a result is not liable for injuries caused by a leak therein of which it has no knowledge.'" Pioneer Hi-Bred Corn Co. of Illinois v. Northern Illinois Gas Co., 61 Ill. 2d 6, 13, 329 N.E.2d 228 (1975), quoting Clare v. Bond County Gas Co., 356 Ill. 241, 244, 190 N.E. 278 (1934).

Plaintiff here asserts that the evidence presented established that NI-Gas had actual knowledge that adding sulfur to natural gas caused the brazed connectors to fail, the likelihood of injury was great, the magnitude of the burden of guarding against the injury was minuscule compared to the potential hazard, and the consequence of placing the burden of guarding against the injury is insignificant when compared to the potential danger.

While the evidence in the instant case indicates that NI-Gas was aware of the potential danger of deteriorated flexible gas connectors, there is no evidence that it installed or provided the Cobra connector used on Janice Adams' gas range or was aware that Adams used a Cobra connector. There is also no evidence that NI-Gas ever serviced the gas connector or was aware of a gas leak associated with Adams' gas range. Plaintiff relies on two out-of-state cases to support her contention that NI-Gas, nonetheless, owes a duty to the deceased: Lemke v. Metropolitan Utilities District, 243 Neb. 633, 502 N.W.2d 80 (1993); and Halliburton v. Public Service Co. of Colorado, 804 P.2d 213 (Colo. App. 1990)).

In Lemke, the defendant gas company asserted that it had no duty to notify its customers concerning a potential hazard from Cobra connectors. Although there was no evidence that the gas provider installed the Cobra connector to the plaintiff's gas range, it was undisputed that the company installed thousands of Cobra connectors for customers' gas appliances. Lemke, 243 Neb. at 647, 502 N.W.2d at 89. There was also evidence that gas provider personnel had worked on and adjusted gas appliances in the Lemke house. The gas provider failed to disseminate the information it possessed about the dangerous condition and potential hazard involving Cobra connectors. Lemke, 243 Neb. at 648, 502 N.W.2d at 89. The Nebraska Supreme Court held that when a governmental entity has actual or constructive notice of a dangerous condition or hazard caused by or under the control of the governmental entity and the dangerous condition or hazard is not readily apparent to persons who are likely to be injured by the dangerous condition or hazard, the governmental entity has a non-discretionary duty to warn of the danger or take other protective measures that may prevent injury as the result of the dangerous condition or hazard. Lemke, 243 Neb. at 647, 502 N.W.2d at 89. In Lemke, unlike the instant case, the gas provider failed to distribute the information that it had regarding the potential danger of Cobra connectors.

In Halliburton, the defendant company knew that a large number of connector tubes were failing because of the interaction between its gas and the tubes. Defendant made several radio and television announcements and sent periodic messages in its newsletter with the customer's monthly billing. An internal memorandum written by a supervisor for the defendant acknowledged the hazard and instructed servicemen to inspect all gas appliances for the tubes and to provide warning information. The servicemen that visited the Halliburton home on several occasions to correct problems with the hot water tank and the furnace did not inspect the gas range or the connector tube. Ola Halliburton was injured and her husband, Clarence, died as a result of an explosion caused by a leaking flexible connector tube on the gas range. In imposing a duty upon defendant to inspect the Halliburtons' connector tube, the Colorado court of appeals found the fact that the natural gas was a substantial factor in causing the deterioration of the connector tube particularly important. Halliburton, 804 P.2d at 216. The court held that when a party can reasonably foresee that its product will be used as an integral component of a defective and unreasonably dangerous product, there is a duty upon that party to undertake corrective action to alleviate, if possible, the hazard. Halliburton, 804 P.2d at 216. Further, the court reasoned that when a supplier of natural gas knows its customers' appliances or connectors are leaking gas, then the supplier has a duty to take corrective action which includes actively warning of the danger. Halliburton, 804 P.2d at 217.

Defendant gas provider, here, NI-Gas, cites Muniz v. Masco Corp., 744 F. Supp. 266 (W.D. Okla. 1990), as instructive. In Muniz, a mobile home fire resulted in the deaths of two persons. The federal court held that plaintiffs' product liability claim could not stand because the gas company was neither the manufacturer, seller, nor supplier of the allegedly defective connector. Muniz, 744 F. Supp. at 267. The court reasoned that without actual notice of a defect, a gas company has no duty to inspect a customer's lines and fittings which it does not install, control, or maintain. Muniz, 744 F. Supp. at 268. Further, a gas company could not be held liable for injuries caused by leaks therein of which it has no knowledge. Muniz, 744 F. Supp. at 268. Illinois case law holds similarly.

In Clare, Margaret Clare occupied, as a tenant, a one-story brick building where she operated a gift and bookshop. Shortly after having a stove installed to heat the shop, Clare noticed an offensive and irritating odor. She notified the president of the gas company, who, after examining the premises with the plumber that installed the stove, concluded that the odor was caused by the fumes of burned gas and recommended that a pipe be extended from the stove to the flue to carry off the fumes. Clare, 356 Ill. at 242. The pipe was installed but the odor continued. The flue was cleaned, the pipe was cemented to it, and the flue was raised in an effort to remedy what the president thought was the cause of the problem. There was still no improvement. The odor was worse when the stove was turned on and was so strong in the meter closet that it was necessary to keep the door closed. The plumber made three inspections and could find nothing wrong, but the odor continued. The pipe from the gas company's curb box belonged to the owner of the building and not the gas company. Clare, 356 Ill. at 242. Horace Williams, a friend of Clare, complained to the gas company about the odor problem several times. Several weeks after the attempts to remedy the problem, Williams opened the door of the meter closet, while holding a lighted match. An explosion occurred. An upheaval of the floor beneath the closet and at the southwest corner of the room showed the greatest force of the explosion was at that point. It was later discovered that the pipe under the floor contained holes, caused by rust, which allowed the gas to escape. Clare, 356 Ill. at 243.

The court in Clare noted that "[w]here it appears that a gas company has knowledge that gas is escaping in a building occupied by one of its consumers[,] it becomes the duty of the gas company to shut off the gas supply until the necessary repairs have been made[,] although the defective pipe or apparatus does not belong to the company and is not in its charge or custody." Clare, 356 Ill. at 243-44. The court held, "[i]n the absence of notice of defects[,] it is not incumbent upon a gas company to exercise reasonable care to ascertain whether or not service pipes under the control of the property owner or the consumer are fit for the furnishing of gas." (Emphasis added.) Clare, 356 Ill. at 244. Therefore, there was no duty imposed upon the defendant gas company to inspect the pipes within Clare's premises and under her control. Clare, 356 Ill. at 245.

In Oliver v. Peoples Gas Light & Coke Co., 5 Ill. App. 3d 1093, 284 N.E.2d 432 (1972), the court observed that "[t]he rule in Illinois as to the liability of a gas company is such company is responsible for a customer's pipe if it has knowledge of a leak or of a possible defect therein." (Emphasis added.) Oliver, 5 Ill. App. 3d at 1099, citing McClure v. Hoopeston Gas Co., 303 Ill. 89, 135 N.E. 43 (1922). Importantly, in Oliver, unlike the instant case, the defendant company had actually installed the gas meters with lead connections that were known to be faulty.

Relative to Janice Adams' stove gas connector in the instant case, NI-Gas did not install or maintain that connector. There is no evidence that NI-Gas, or even Janice Adams, was aware of a gas leak or defect with the connector. Accordingly, NI-Gas cannot be held liable. "'[T]he duty to warn co-exists with the corresponding liability for the hazard if no warning is given. If the defendant is not liable for the existence of the hazard in the first instance, he is under no duty to warn of it.'" Sculles v. American Environmental Products, Inc., 227 Ill. App. 3d 741, 744, 392 N.E.2d 271 (1992), quoting Lansing v. County of McLean, 69 Ill. 2d 562, 574, 372 N.E.2d 822 (1978).

Plaintiff alternatively argues that if NI-Gas did not owe a common-law duty to warn consumers of the hazards of flexible gas connectors, it undertook that duty when it issued warnings in its consumer newsletter. In plaintiff's view, the warning that was given by NI-Gas "was woefully inadequate" and, therefore, NI-Gas is subject to liability under a voluntary undertaking theory. We disagree.

Pursuant to the voluntary undertaking theory of liability, one who gratuitously or for consideration renders services to another is subject to liability for bodily harm caused to the other by one's failure to exercise due care. Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32, 605 N.E.2d 557 (1992). Under the voluntary undertaking theory of liability, the duty of care to be imposed upon a defendant is limited to the extent of its undertaking. Frye, 153 Ill. 2d at 32. The Frye court found section 323 of the Restatement (Second) of Torts particularly relevant to the voluntary undertaking theory of liability, which provides that one is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if: "'(a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.'" Frye, 153 Ill. 2d at 32, quoting Restatement (Second) of Torts §323 (1965).

The record here included copies of the April/May 1975, August/September 1978, June/July 1980, summer/fall 1981, December 1981, June/July 1983, January 1985, May 1986, and June 1987 "Consumer News" notices. The August/September 1978, June/July 1980, summer/fall 1981, and December 1981 notices indicated that an old connector could crack, creating an unsafe condition, when the appliance was moved. The January 1985, May 1986, June 1987, and December 1981 warnings provided: "The U.S. Consumer Product Safety Commission has warned that certain appliance connectors manufactured prior to 1968 may be unsafe. If you are concerned, do not try to move the appliance to inspect the connector. Instead, call a qualified service agency of NI-Gas to make the inspection."

Plaintiff's contention that the "Consumer News" warnings created confusion or a false sense of security for the customers is unconvincing. The warnings indicated that old flexible connectors created unsafe conditions and instructed the customer to call a qualified service agency or NI-Gas agent to make the inspection if an owner was concerned that his or her home contained questionable connector. The warnings did not suggest that Adams' gas appliances or connectors were in good condition or that NI-Gas was even aware that Adams possessed a Cobra gas connector.

Further, the extent of NI-Gas' undertaking was limited to issuing the warning that certain flexible connectors may be potentially unsafe. The act of warning customers of potential dangerous conditions did not increase the danger of connector failure or give customers false assurances to rely upon. In our view, it would be an overstatement of NI-Gas's undertaking to hold it liable for defects in equipment that it was not aware Janice Adams owned and had never inspected.

Plaintiff also asserts that the terms and conditions found in the NI-Gas tariff filed with the Illinois Commerce Commission do not preclude the imposition of a duty on NI-Gas. The NI-Gas tariff on file with the Illinois Commerce Commission on March 1, 1995, provided:

"All gas utilization equipment, piping, and vents furnished by the Customer shall be suitable for the purposes hereof and shall be installed and maintained by the Customer at all times in accordance with accepted practice and in conformity with requirements of public health and safety, as set forth by the properly constituted authorities and by the Company.

The Company assumes no responsibility in connection with the installation, maintenance or operation of the Customer's equipment and reserves the right to discontinue service if such equipment is in unsatisfactory condition." (Emphasis added.)

In her brief, plaintiff reasons that since her claim against NI-Gas is not based on NI-Gas' responsibility in connection with the "installation, maintenance or operation" of her equipment, but its liability resulting from NI-Gas' breach of its common-law duty to use reasonable precautions to avoid injury and failure to adequately warn its customers of the hazard, the tariff provision is not applicable. We find plaintiff's reasoning unpersuasive.

The NI-Gas tariff applies to the instant case first, because it was effective at the time of the incident. Next, the NI-Gas tariff applies because plaintiff is indeed attempting to hold NI-Gas "responsible" for an alleged breach of a common-law duty based on the resulting condition of Adams' equipment. An effective utility tariff has the force of law. Bloom Township High School v. Illinois Commerce Comm., 309 Ill. App. 3d 163, 175, 722 N.E.2d 676 (1999). A public utility's legal obligations are determined by the particular provisions of the tariff. Sarelas v. Illinois Bell Telephone Co., 42 Ill. App. 2d 372, 375, 192, N.E.2d 451 (1963). Whether a utility tariff is ambiguous is a question of law and subject to de novo review. Bloom Township, 309 Ill. App. 3d at 174. Although a utility tariff is not a legislative enactment, its interpretation is governed by the rules of statutory construction. Bloom Township, 309 Ill. App. 3d at 174. We hold that the tariff does apply to the plaintiff's claim.

We also hold that the NI-Gas tariff is unambiguous. The tariff provision at issue plainly indicates that NI-Gas assumes no responsibility in connection with the installation, maintenance or operation of the customer's equipment, including all gas utilization equipment, piping, and vents furnished, installed, and maintained by the customer. While NI-Gas is responsible for inspecting and maintaining the safety of its own equipment, piping, and vents, it has no duty to inspect a customer's equipment, piping, and vents. We hold, as a matter of law, that the plain, unambiguous language of the tariff absolves NI-Gas from liability relative to equipment owned and maintained by the customer.

The tariff, in our view, also conforms with public policy. Absent the liability limitations found in the tariff, NI-Gas would be susceptible to a myriad of claims for injuries sustained from a variety of sources under the sole control of the customer. After reviewing the pleadings, depositions, and admissions on file, we hold, as a matter of law, that no genuine issue of material fact exists that precludes the grant of summary judgment in favor of NI-Gas.

II.

Plaintiff also avers that she established good cause for preserving the evidence depositions of the witnesses in question and the trial court abused its discretion in denying her motion to preserve testimony. NI-Gas responds that the trial court did not abuse its discretion in denying plaintiff's motion to preserve testimony because plaintiff had ample time to depose her retained expert witnesses prior to the grant of summary judgment; also, the witnesses were not fact witnesses who were essential to proving plaintiff's case. We agree.

Rule 217 provides for the taking of depositions in order to preserve testimony. 134 Ill. 2d R. 217. A trial court may, on a motion and for good cause shown, allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in that court. 134 Ill. 2d R. 217(b).

NI-Gas' motion for summary judgment was granted on September 13, 2000. Plaintiff's motion to reconsider was denied on December 22, 2000. Plaintiff represented in her January 12, 2001, motion to preserve testimony that: due to the "schedules" of the witnesses and the attorneys, she was unable to complete the evidence depositions of her two expert witnesses; and based on the time to complete the appellate process and the age of her experts, she would "suffer great prejudice if the testimony of one or more of her experts is not preserved for trial." The trial court denied the motion to preserve, noting that "[t]hey're not fact witnesses who are essential to proving the Plaintiff's or Defendant's cases. They're retained experts. We substitute experts quite frequently." In our view, the trial court did not abuse its discretion in denying plaintiff's motion. Plaintiff's reasons for not completing the depositions and her need to preserve the testimony fail to demonstrate good cause to warrant preservation.

For the foregoing reasons, we affirm the grant of summary judgment in favor of NI-Gas and affirm the denial of plaintiff's motion to preserve testimony.

Affirmed.

McNULTY, J., consents.

TULLY, J., concurs in part and dissents in part.

JUSTICE TULLY, concurring in part and dissenting in part.

I respectfully dissent.

I believe that the majority's duty analysis fails to consider the unique circumstances presented in this case and that defendant's superior knowledge of the dangers of Cobra connectors warrants the creation of an exception to the general rule that a gas company has no duty to prevent injuries caused by defective customer equipment absent knowledge of a leak.

Generally, a court's assessment of whether a duty exists involves, in part, a policy consideration. A court must consider, among other things, the magnitude of guarding against an injury and the consequences of placing that burden on the defendant. Jackson, 185 Ill. 2d at 425. The rule set forth by our supreme court in Clare reflect such policy considerations.

Natural gas is potentially dangerous explosive commodity. Defendant's superior knowledge of the dangerous characteristics of that commodity obligates it to safeguard those that it supplies. See Oliver, 5 Ill. App. 3d at 1098. However, in Clare, our supreme court recognized that this obligation is not without limits. The court recognized that it would place an undue burden on gas companies to impose on them an obligation to inspect customers' pipes and fittings when a gas company has no corresponding right to enter premises for that purpose. Clare, 356 Ill. at 244. Accordingly, the court held that absent knowledge of defects, no duty exists on the part of a gas company to ascertain whether or not property under the control of a customer is suitable for the use of gas. Clare, 356 Ill. at 244.

In general, I agree with the balance between the obligations of gas companies and consumers established by this rule. A gas company may have superior knowledge, but the ordinary dangers created by the use of natural gas, leaks, fires, and explosions, are generally well understood. It would place a great burden on gas companies to require them to regularly inspect every connection to the gas supply. Individual consumers have control over the equipment in their homes and the burden of inspecting that equipment for obvious dangers such as rusting pipes, loose connections, or appliances needing repair is not overwhelming. The rule that a gas companies obligation ends where the customer's equipment begins is reasonable when the ordinary, generally understood dangers of natural gas are considered.

However, this case does not involve an ordinary or generally understood danger of the use of natural gas. The limitation on a gas company's duty recognized in Clare is well established in Illinois. However, we are dealing with the common law, and when a court recognizes a change in the circumstances upon which that law is based, it may be required to effect a change in the law. See Pashihian v. Haritonoff, 81 Ill. 2d 377, 381 (1980). I believe that the circumstances in this case, mandate the creation of an exception to the general rule that a gas company has no duty with respect to a connection owned by a customer.

The source of the danger in this case was a chemical reaction between the sulfur in the gas supplied by defendant and the phosphorus contained in the brazing compound used by the connector manufacturer. Over time, the brazed joints would become brittle and prone to leaks. I do not believe that it is reasonable to assume that the average consumer would be aware of this potentially dangerous chemical reaction occurring in the gas fittings in his or her home. Unlike the dangers generally associated with the use of gas, the average consumer is unlikely to be aware of the danger and unlikely to possess the knowledge necessary to recognize a potentially faulty connector. These connectors were quite literally time bombs hidden behind consumers' appliances and waiting to go off. To the contrary, defendant was aware of the source of this danger, knew what actions were required to correct the problem, and employed technicians qualified to both identify and replace the dangerous connectors. I believe that under these circumstances the balance that weighed against imposing a duty in Clare shifts and favors imposition of a duty on defendant to mitigate the danger posed by these connectors. Therefore, I would impose this duty as an exception to the general rule set forth in Clare.

Defendant could have responded to this duty in a variety of ways, e.g., requiring technicians to check for faulty connectors if on a customer's property, or warning customers of the danger. However, I express no opinion on what standard of care this duty imposed on defendant. Although the existence of a duty is determined as a matter of law, whether a duty has been breached is a factual matter. Kavales v. City of Berwyn, 305 Ill. App. 3d 536, 547 (1999). I believe that the evidence presented by the parties created a genuine issues of fact regarding the standard of care required of defendant and whether defendant breached this standard. Therefore, I would reverse the order of the circuit court granting summary judgment in defendant's favor and remand this matter for a trial on the merits.

Defendant alternatively contends that its tariff immunizes it from liability for injuries caused by defective equipment owned by customers. The language of the tariff is in substance identical to the common-law limitation on a gas company's duty regarding customer equipment. I believe that to the extent this tariff provision reflects the common law, it should also reflect the exception to the common-law rule I have identified. See Hormel Foods Corp. v. Zehnder, 316 Ill. App. 3d 1200, 1210 (2000) (holding a statute should be interpreted as changing the common law only to the extent that the terms thereof warrant). Accordingly, I would interpret this tariff to include the same exception.

I concur in the majority's conclusion regarding the preservation of evidence.

20020628


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