IN THE
Court of Appeals of Indiana Carla Miller, FILED Feb 20 2026, 8:30 am Appellant-Plaintiff CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
Indiana Gas Company, Inc., Appellee-Defendant
February 20, 2026 Court of Appeals Case No. 25A-CT-866 Appeal from the Clark Circuit Court The Honorable William A. Dawkins, Magistrate Trial Court Cause No. 10C02-2005-CT-67
Opinion by Judge Foley Judges May and Altice concur.
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 1 of 23 Foley, Judge.
[1] Carla Miller (“Miller”) appeals from the trial court’s order granting summary
judgment in favor of Indiana Gas Company, Inc. (“Indiana Gas”). Miller
raises the following restated issues for our review:
I. Whether the trial court abused its discretion when it relied on certain evidence designated by Indiana Gas because the evidence was inadmissible;
II. Whether the trial court erred in granting summary judgment in favor of Indiana Gas because genuine issues of material fact existed.
[2] We affirm.
Facts and Procedural History 1 [3] On May 19, 2019, at approximately 4:56 a.m., a natural gas explosion occurred
at 904 Assembly Road, Jeffersonville, Indiana—the residence of Billy and Janet
Phillips (“the Phillips Residence”). Janet Phillips (“Janet”) awoke in the early
morning hours to get ready for work, and when she flipped on a light switch in
her basement, the spark caused an explosion. Billy Phillips (“Billy”) was killed
in the explosion, and the Phillips Residence was destroyed. Janet suffered
grave personal injuries, and Miller, who lived next door to the Phillips
1 Oral argument was heard on this case on January 27, 2025, in the Indiana Court of Appeals courtroom in Indianapolis, Indiana. We commend counsel on the excellent quality of their written and oral advocacy.
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 2 of 23 Residence, also suffered personal injuries and property damage as a result of the
explosion (“the Incident”).
[4] Indiana Gas is a public utility that provides natural gas service to retail
customers through its pipelines subject to regulation by the Indiana Utility
Regulatory Commission (“IURC”) and the federal Pipeline and Hazardous
Materials Safety Administration (“PHMSA”). At the time of the Incident,
Indiana Gas provided natural gas service to the Phillips Residence pursuant to
the terms and conditions of the Tariff for Gas Service approved by the IURC
(“the Tariff”). The Tariff states: “It shall not be the duty of [Indiana Gas] to
inspect [the] Customer’s piping, appliances or equipment.” Appellant’s App.
Vol. VII p. 90. It also states: “[Indiana Gas] shall not be liable for damages
caused by defective piping or appliances on [the] Customer’s Premises.” Id. at
96. Further, “[The] Customer shall furnish, install, and maintain all necessary
piping beyond the outlet side of the [gas] meter. . . .” Id. at 90. The natural gas
industry uses the concept of jurisdiction when addressing whether a natural gas
incident involved pipelines owned by the utility—and thereby under the
regulatory jurisdiction of the IURC and PHMSA—or gas lines owned by the
customer, which would be outside of that jurisdiction. If the cause of a natural
gas incident is deemed to be “not jurisdictional” or “non-jurisdictional,” this
means the source of the natural gas involved in the incident was not a leak from
gas lines the utility owned or was responsible for. Id. at 18.
[5] Natural gas is colorless, odorless, and highly flammable and explosive when
mixed with air. Because of this, federal regulation 49 C.F.R. § 192.625(a) states
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 3 of 23 that “a combustible gas in a distribution line must contain a natural odorant or
be odorized so that at a concentration in air of one-fifth of the lower explosive
limit, the gas is readily detectable by a person with a normal sense of smell.”
The lower explosive limit (“LEL”) of natural gas in air is approximately 5%,
and therefore, the regulation requires that odorant in natural gas be “readily
detectable by a person with a normal sense of smell” at no more than 1% gas in
air. Appellant’s App. Vol. VII pp. 147, 152.
[6] After the Incident, individuals from Indiana Gas and the IURC arrived at the
scene to investigate. Indiana Gas performed its investigation under the
observation of Dan Novak (“Novak”) and Howard Friend (“Friend”) from the
IURC. Indiana Gas conducted a gas leak survey including bar hole testing,
which consists of making a hole in the soil and testing for the presence of
natural gas using a combustible gas indicator; walking along the gas main to
check cleanouts and sewer manholes using a flame ionization unit to detect the
existence of natural gas; and pressure testing the service line. The gas leak
survey and pressure tests conducted on the service line into the Phillips
Residence were both negative for leaks within the jurisdiction of Indiana Gas’s
facilities. Indiana Gas, accompanied by the Jeffersonville Fire Department,
performed odorator readings at three locations near the Phillips Residence on
the day of the explosion. An odorator is an instrument used to determine the
percentage of gas in air at which the odor becomes readily detectable. The
odorator readings were: 0.21% (next door to the north of the Phillips
Residence); 0.21% (next door to the south of the Phillips Residence); and 0.28%
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 4 of 23 (across the street from the Phillips Residence). All three readings were well
within the regulatory standard of no more than 1% gas in air.
[7] Indiana Gas’s investigation revealed that the source of the natural gas was a
section of gas pipeline inside the Phillips Residence basement that was
uncapped and no longer connected to a fitting. The investigation determined
that “[t]he cap had been removed from the open line by human intervention”
and that “[t]o remove the pipe cap would require two wrenches, one to hold the
pipe nipple and one to remove the cap.” Appellant’s App. Vol. VIII p. 9.
[8] The explosion triggered an excess flow valve installed underground on the
service line to close, which immediately cut off all gas flow to the Phillips
Residence. The excess flow valve functioned as it was designed to do. The gas
meter at the Phillips Residence had an Encoder Receiver Transmitter (“ERT”)
that stored a rolling forty days’ worth of readings. The ERT data collected from
the gas meter showed a sudden increase in gas flow that started between 3:00
p.m. and 4:00 p.m. on May 18, 2019—the day before the explosion. After 4:00
p.m. on May 18, gas continued flowing at a high rate until the explosion, which
indicated natural gas flowed at a high rate into the Phillips Residence for
approximately thirteen hours before the explosion.
[9] No Indiana Gas personnel were at the Phillips Residence on May 18, 2019,
which was a Saturday. The only individuals present at the Phillips Residence
on May 18 were Billy and Janet Phillips. On May 18, both Billy and Janet
worked in the yard from around 8:00 or 9:00 a.m. until 3:00 or 4:00 p.m. When
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 5 of 23 Janet finished, she left to go to the grocery store and get gas for her car while
Billy remained alone at the residence. Billy was the only individual at the
Phillips Residence during the approximate time when the ERT data showed the
sudden increase in gas flow began. There was evidence that Billy completed
plumbing, electrical, painting, drywall, and flooring projects and kept tools at
the Phillips Residence.
[10] The IURC prepared a Final Incident Report (“IURC Report”) authored and
signed by Friend and Novak, who were both present at the scene following the
explosion and observed Indiana Gas’s investigation. The IURC Report
concluded that the “leak survey was negative for gas leaks” on Indiana Gas’s
pipelines, “odorant levels [were] within the acceptable range,” and “the cause
of this [I]ncident [was] not jurisdictional.” Appellant’s App. Vol. VII pp. 135–
36, 140–41. The IURC submitted the IURC Report to PHMSA. The IURC
did not issue any notices of probable violation or take any enforcement action
against Indiana Gas arising from the Incident, nor did it assess any fines against
Indiana Gas.
[11] On May 28, 2020, a complaint was filed on behalf of Billy and Janet Phillips
against multiple entities, including Indiana Gas. On May 19, 2021, Miller filed
a motion to intervene in the action, which was granted by the trial court on
April 12, 2021. Miller brought claims alleging product liability under the
Indiana Product Liability Act (“the IPLA”), negligent product liability,
negligence, negligent hiring, negligent training, negligent supervision, negligent
retention, and negligent failure to warn in connection with the Incident.
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 6 of 23 Miller’s product liability claim under the IPLA alleged that Indiana Gas’s
“natural gas distribution system” was defective and that the natural gas Indiana
Gas supplied to its customers was also defective because it purportedly “lacked
the required odorant.” Appellant’s App. Vol. II pp. 118, 120. Miller’s
negligence-based theories identified a number of alleged breaches, including
Indiana Gas’s purported failure to “properly perform tests on its natural gas
lines” and the natural gas, “inspect the gas lines” and other facilities, and
supply its customers with natural gas containing “levels of odorant consistent
with the requirements of any and all applicable Local, State, and/or Federal
laws and/or Administrative regulations[.]” Id. at 120–21.
[12] On November 26, 2024, Indiana Gas filed a motion for summary judgment on
Miller’s claims, arguing that a gas utility only has a duty for gas lines that it
owns and does not owe a duty for customer-owned gas lines. Indiana Gas
asserted that its duty ended at the outlet side of the gas meter and did not
extend inside the Phillips Residence. In support of this assertion, Indiana Gas
designated evidence, including the determination of the IURC, that the cause of
the Incident was “non-jurisdictional,” meaning the cause of the Incident was
not a leak on the gas lines that Indiana Gas owned or was responsible for.
Appellant’s App. Vol. VII pp. 16–18, 131, 133, 135–36, 138, 140–41, 147–48,
157, 167–68, 172; Appellant’s App. Vol. VIII p. 14.
[13] Indiana Gas also contended that the natural gas supplied to the Phillips
Residence was not defective and had been properly odorized as required by
federal regulation. Indiana Gas’s designated evidence in support of this
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 7 of 23 contention included odorator readings, which found natural gas odorant levels
in the area to be well within the regulatory standard, and the IURC’s
determination that “the odorant levels [were] within the acceptable range.”
Appellant’s App. Vol. VII pp. 17, 121, 135–36, 138, 140–41. Indiana Gas
further designated evidence that the source of the natural gas involved in the
Incident was an uncapped gas line inside the Phillips Residence that someone
other than Indiana Gas had intentionally opened. Id. at 18, 131, 159, 168;
Appellant’s App. Vol. VIII pp. 9, 14. Based on the designated evidence,
Indiana Gas asserted that it could not be liable for the Incident because it did
not have any duty concerning the leak on a customer-owned gas line, because
the gas was properly odorized, and because Indiana Gas did not proximately
cause the Incident.
[14] On December 13, 2024, Miller and Indiana Gas submitted a Proposed Agreed
Order, which the trial court approved, extending Miller’s deadline to respond to
Indiana Gas’s Motion for Summary Judgment to January 10, 2025. On
January 2, 2025, the trial court approved an amended case management plan
that had been agreed to by the parties. This case management plan established
separate deadlines for Miller to disclose her expert witnesses by January 24,
2025, and for the parties to complete discovery by May 9, 2025. Miller did not
file a motion under Trial Rule 56(I) to extend the time within which to respond
to Indiana Gas’s Motion for Summary Judgment past the January 10, 2025
deadline, and she did not submit any affidavits under Trial Rule 56(F) showing
the need for a continuance of the January 10, 2025 deadline to obtain
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 8 of 23 additional affidavits, take additional depositions, or conduct more discovery
before responding to Indiana Gas’s motion for summary judgment.
[15] On January 10, 2025, Miller filed her brief and designation of evidence
opposing Indiana Gas’s motion for summary judgment. Miller argued that
summary judgment was not appropriate because there were material issues of
fact in dispute as to whether Indiana Gas properly odorized the natural gas it
provided to the Phillips Residence and whether it had a duty to warn of odor
fade, which is a condition where the odorant in the gas “is depleted by
adsorption onto the inner pipe wall of newly installed gas pipelines thus
reducing the level of odorant in the gas.” Appellant’s App. Vol. VII at 153.
Miller also contended that the IURC Report and the affidavits of Friend and
Novak were inadmissible and should be stricken. Miller did not designate any
expert reports or expert testimony in opposition to Indiana Gas’s motion.
Instead, Miller designated evidence including deposition testimony of Janet that
she never smelled natural gas in her home prior to the explosion. She stated
that Billy never told her that he smelled gas at their residence during the time
they lived there. Miller also designated evidence that several individuals who
arrived to the scene of the Incident did not smell natural gas; these individuals
included Jeffersonville Fire Department Captain Jason Sharp (“Captain
Sharp”) and Indiana Gas employee Jeff Higdon (“Higdon”).
[16] Miller also designated evidence that “[a] person with a normal sense of smell
should have been able to identify a readily detectable odorant in the—in the gas
that we delivered to them” given the amount of gas in the home prior to the
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 9 of 23 explosion. Appellant’s App. Vol. X p. 101. Miller designated evidence that in
April 2019 Indiana Gas performed “sniff tests” in Madison, Indiana, which is
approximately forty miles from the Phillips Residence. The “sniff testing”
revealed that the amount of odorant in the natural gas did not become readily
apparent until the reading was 1%. Id. at 40. Indiana Gas’s corporate
representative testified that readings of 1% or above would “raise a question”
and “could be an indication that . . . the odorant level could be low, . . . or it
could be the equipment they’re utilizing is a problem.” Appellant’s App. Vol.
IX p. 244; Appellant’s App. Vol. X p. 41.
[17] Indiana Gas filed its reply in support of its motion for summary judgment on
January 24, 2025, arguing that there is no genuine issue of material fact that
Indiana Gas’s responsibility for the natural gas delivered ended at the outlet
side of the gas meter and that the source of the gas involved in the Incident was
non-jurisdictional as it involved a pipe inside the Phillips Residence. Indiana
Gas also asserted that it had no duty to warn of odor fade. Indiana Gas
claimed that there was no genuine issue of material fact that the natural gas
involved in the Incident was properly odorized under the applicable law and
that the question for the trial court was not whether Janet smelled natural gas
but whether the natural gas was properly odorized under 49 C.F.R. § 192.625,
which is the legal standard for gas odorization. Indiana Gas further contended
that there was no genuine issue of fact that it was not the proximate cause of the
Incident.
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 10 of 23 [18] To support its arguments in the reply brief, Indiana Gas relied on evidence it
previously designated with its motion for summary judgment. Specifically, as
to whether Janet could smell the gas, Indiana Gas highlighted evidence that
Billy smoked marijuana in the house daily and that there were a dog and a cat
in the home, which could have masked the odor of gas. Further, as to the issue
of odor fade, it pointed to the affidavit of John Erickson, an expert on the
natural gas industry, who explained that “[o]dor fade is a condition where
odorant in gas is depleted by adsorption onto the inner pipe wall of newly
installed gas pipelines thus reducing the level of odorant in the gas.”
Appellant’s App. Vol. VII p. 153. He also stated that “[o]dor fade can occur on
newly installed plastic or steel pipelines until the pipe has become ‘pickled,’ e.g.
the inner wall of the pipe has adsorbed as much odorant as it can adsorb.” Id.
Regarding the Phillips Residence specifically, Erickson noted that “[t]he gas to
[the Phillips Residence] on May 19, 2019 was delivered through a steel main
that had been in service for approximately 48 years and a plastic service line
that had been in service for over 18 years[,]” and that “[o]dor fade is not an
issue with pipe that has been exposed to odorized gas for years.” Id. He further
stated that “[t]here is no evidence that odor fade was occurring in the gas”
going to a neighboring residence and that there is “ample evidence that odor
fade was not occurring in the Assembly Road area including post-accident
odorant tests and Dan Novak of the IURC smelling gas at the meter set at 908
Assembly Road.” Id. Further, Indiana Gas’s evidence sets out that there is no
state or federal regulation that requires it to notify customers or third parties
about odor fade. Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 11 of 23 [19] On February 3, 2025, a hearing was held on Indiana Gas’s summary judgment
motion. On March 14, 2025, the trial court entered its order granting summary
judgment in favor of Indiana Gas and against Miller. Miller now appeals.
Discussion and Decision [20] “We review the trial court’s summary judgment decision de novo.” Z.D. v.
Cmty. Health Network, Inc., 217 N.E.3d 527, 531 (Ind. 2023). A party is entitled
to summary judgment “if the designated evidentiary matter shows that there is
no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Ind. Trial Rule 56(C). “A genuine issue of
material fact exists when there is ‘contrary evidence showing differing accounts
of the truth,’ or when ‘conflicting reasonable inferences’ may be drawn from the
parties’ consistent accounts and resolution of that conflict will affect the
outcome of a claim.” Z.D., 217 N.E.3d at 532 (quoting Wilkes v. Celadon Grp.,
Inc., 177 N.E.3d 786, 789 (Ind. 2021)). “A fact is ‘material’ for summary
judgment purposes if it helps to prove or disprove an essential element of the
plaintiff's cause of action.” Ind. Farmers Mut. Ins. Grp. v. Blaskie, 727 N.E.2d 13,
15 (Ind. 2000). “A factual issue is ‘genuine’ if the trier of fact is required to
resolve an opposing party’s different version of the underlying facts.” Id.
[21] “In viewing the matter through the same lens as the trial court, we construe all
designated evidence and reasonable inferences therefrom in favor of the non-
moving party.” Ryan v. TCI Architects/Eng’rs/Contractors, Inc., 72 N.E.3d 908,
912 (Ind. 2017). “If there is any doubt, the motion should be resolved in favor
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 12 of 23 of the party opposing the motion.” Mullin v. Mun. City of S. Bend, 639 N.E.2d
278, 281 (Ind. 1994). The initial burden is on the moving party to demonstrate
the absence of any genuine issue of fact as to a determinative issue, at which
point the burden shifts to the non-movant to come forward with contrary
evidence showing an issue for the trier of fact. Hughley v. State, 15 N.E.3d 1000,
1003 (Ind. 2014).
I. Reliance on Inadmissible Evidence [22] Miller argues that, in granting summary judgment in favor of Indiana Gas, the
trial court improperly relied on inadmissible hearsay and unauthenticated
documents. She specifically takes issue with the trial court’s reliance on the
IURC Report and the affidavits of Novak and Friend. A trial court’s decision
to admit evidence is generally reviewed for an abuse of discretion, and such
discretion extends to rulings on motions to strike affidavits on the grounds that
they fail to comply with the summary judgment rules. Webb v. City of Carmel,
101 N.E.3d 850, 856–57 (Ind. Ct. App. 2018) (citing Morris v. Crain, 71 N.E.3d
871, 877 (Ind. Ct. App. 2017)). We reverse a trial court’s decision to admit
evidence only if that decision is clearly against the logic and effect of the facts
and circumstances before the court. Id. at 857. In ruling on a motion for
summary judgment, a court will consider only properly designated evidence
that would be admissible at trial. 487 Broadway Co., LLC v. Robinson, 147
N.E.3d 347, 353 (Ind. Ct. App. 2020).
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 13 of 23 [23] Miller asserts that the IURC Report was inadmissible hearsay and did not fall
under the public records exception in Evidence Rule 803. Although Evidence
Rule 803 exempts public records from the rule against hearsay, certain public
records are excluded from this exemption, including “factual findings resulting
from a special investigation of a particular complaint, case, or incident, except
when offered by an accused in a criminal case.” Ind. Evidence Rule
803(8)(B)(iv). However, here, Rule 803 is not applicable because the IURC
Report did not constitute hearsay. Hearsay is defined as “a statement that . . .
is not made by the declarant while testifying at the trial or hearing” that is
offered for the truth of the statement. Evid. R. 801(c). The IURC Report
contained the findings and conclusions of the declarants who prepared them,
Friend and Novak, and was attached to the affidavits of both Friend and
Novak, which served to authenticate the IURC Report. Both Friend and
Novak were present at the scene of the Incident, personally observed the
investigation conducted by Indiana Gas, and authored the IURC Report. See
Evid. R. 901(a) (stating that the requirement of authenticating or identifying an
item of evidence is satisfied when the proponent produces evidence sufficient to
support a finding that the item is what the proponent claims it is); Evid. R.
901(b) (evidence may be authenticated by testimony of a witness with
knowledge that an item is what it is claimed to be). The IURC Report was not
hearsay, was properly authenticated by the accompanying affidavits, and was,
therefore, admissible.
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 14 of 23 [24] Miller further contends that the affidavits of Novak and Friend were likewise
inadmissible because they contained secondhand information from the
individuals who actually performed the tests and were therefore inadmissible
hearsay and not based on their personal knowledge. Trial Rule 56(E) states that
“[s]upporting and opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein.” An affidavit does not need to “contain an explicit recital of personal
knowledge when it can be reasonably inferred from its contents that the
material parts thereof are within the affiant’s personal knowledge.” City of Fort
Wayne v. Consol. Elec. Distribs., Inc., 998 N.E.2d 733, 738 (Ind. Ct. App. 2013)
(citations omitted).
[25] Although Miller contends that Friend’s and Novak’s affidavits contain
secondhand information, the affidavits clearly establish that both Friend and
Novak were present at the scene of the Incident and personally observed the
testing discussed in the IURC Report. This information was thus not
secondhand and did not constitute hearsay as the statements in the affidavits
came from the personal knowledge and observations of both Friend and Novak.
To the extent that Miller argues that Friend and Novak were not qualified as
experts and therefore their testimony is not reliable under Evidence Rule 702,
there is no evidence that Friend and Novak were proffered as expert witnesses.
Both Friend and Novak were witnesses who had firsthand knowledge of the
event contained within their affidavits, and their affidavits contained their
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 15 of 23 observations and not any expert opinions. Further, although Miller argues that
both the IURC Report and the affidavits were inconsequential and irrelevant,
the challenged evidence was relevant in that it constituted evidence regarding
the IURC’s investigation of the Incident and its report to the PHMSA, which is
a federal agency that regulated gas pipelines. The IURC’s investigation into the
Incident was clearly relevant to determining the cause of the Incident. We,
therefore, conclude that the trial court did not abuse its discretion in allowing
the IURC Report and the affidavits of Friend and Novak to be used as
designated evidence.
II. Summary Judgment Determination [26] Miller argues that the trial court erred when it granted summary judgment in
favor of Indiana Gas as to her product liability claim. 2 She contends genuine
issues of material fact exist as to whether the natural gas delivered to the
Phillips Residence was properly odorized, which bars the granting of summary
judgment. 3 Miller asserts that she designated evidence that created such an
2 Although Miller’s complaint contained a product liability claim and numerous negligence-based claims, on appeal she has abandoned her negligence-based claims and focuses solely on whether the trial court erred when it granted summary judgment as to her product liability claim. Miller does raise assertions in her brief that the trial court misapplied the IPLA in determining that summary judgment was proper and cites to findings made by the trial court discussing whether Indiana Gas was responsible for gas lines it does not own. See Appellant’s Br. pp. 30, 31 (citing to Appellants’ App. Vol II pp. 49, 52). In its order, the trial court granted summary judgment as to both the product liability claim and all of Miller’s negligence claims, and the findings that she cites to dealt with the negligence-based claims. Therefore, to the extent that Miller argues that the trial court misapplied the IPLA, we focus only on the findings and conclusions pertinent to the product liability claims. 3 In her complaint, Miller alleged a product liability claim under the IPLA regarding both the natural gas itself and the natural gas distribution system. In its summary judgment order, the trial court granted summary judgment as to all of Miller’s claims against Indiana Gas. On appeal, Miller focuses her arguments
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 16 of 23 issue of material fact because the evidence established that Janet did not smell
natural gas prior to the explosion and that Captain Sharp and Higdon did not
smell gas when they arrived to the scene of the Incident. Miller claims that, in
light of this designated evidence, the trial court engaged in improper weighing
of the evidence in its determination that there was no genuine issue of material
fact as to whether the natural gas was properly odorized. Miller further
maintains that the trial court erred when it found that Indiana Gas had no duty
to warn of odor fade in the present circumstances.
[27] The IPLA governs all actions that are: (1) brought by a user or consumer; (2)
against a manufacturer or seller; and (3) for physical harm caused by a product;
regardless of the substantive legal theory or theories upon which the action is
brought.” Ind. Code § 34-20-1-1. The IPLA recognizes three ways that a
product can be defective: (i) a manufacturing defect; (ii) a defective design; or
(iii) the manufacturer failed to give adequate information about the product,
such as the failure to warn of dangers while using the product or inadequate
instructions. Brewer v. PACCAR, Inc., 124 N.E.3d 616, 621 (Ind. 2019) (citations
omitted). Here, Miller alleged a manufacturing defect in the natural gas.
“[T]he IPLA imposes liability although the manufacturer exercised all
solely on whether the natural gas itself was defective under the IPLA because it was under odorized. Because she has narrowed her argument on appeal to only this claim, she has waived any argument that summary judgment was improper on her claims that the natural gas distribution system was defective. See Akin v. Simons, 180 N.E.3d 366, 375 (Ind. Ct. App. 2021) (providing that “the law is well settled that grounds for error may only be framed in an appellant's initial brief and if addressed for the first time in the reply brief, they are waived”).
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 17 of 23 reasonable care in the manufacture and preparation of the product[,]” and
“[t]herefore, a strict-liability standard applies to manufacturing-defect claims.”
Bayer Corp. v. Leach, 153 N.E.3d 1168, 1179 (Ind. Ct. App. 2020) (internal
citations omitted). Under Indiana Code section 34-20-4-1:
A product is in a defective condition . . . if, at the time [the product] is conveyed by the seller to another party, it is in a condition: (1) not contemplated by reasonable persons among those considered expected users of the product; and (2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
Therefore, Miller was required to prove that the natural gas was in a defective
condition at the time it was distributed to the Phillips Residence and the
improper odorization was what caused this defective condition.
[28] In its order, the trial court found that “[a]ll evidence in the [summary judgment]
record supports the conclusion that Indiana Gas met the legal regulatory
standard set forth in 49 [C.F.R. §] 192.625 for odorizing the natural gas
delivered to the Phillips Residence.” Appellant’s App. Vol. II p. 54. The trial
court acknowledged that Miller designated evidence that Janet did not smell gas
prior to the explosion but concluded that this did not generate a genuine issue
of material fact that the gas was properly odorized.
[29] Indiana Gas’s designated evidence established that the odorization of natural
gas is controlled by federal regulation. The federal regulation promulgated by
PHMSA provides that “a combustible gas in a distribution line must contain a
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 18 of 23 natural odorant or be odorized so that at a concentration in air of one-fifth of
the lower explosive limit, the gas is readily detectable by a person with a normal
sense of smell.” 49 C.F.R. § 192.625. Under this regulation, the odorant in
natural gas must be “readily detectible by a person with a normal sense of
smell” at no more than 1% gas in air. Appellant’s App. Vol. VII p. 147 n.11.
Indiana Gas designated evidence that odorator readings taken at the scene of
the Incident in neighboring homes showed natural gas odorant levels to be well
within the 1% upper limit for detection under the federal standard: 0.21% (next
door to the north); 0.21% (next door to the south); and 0.28% (across the
street). Id. at 17, 121. Indiana Gas’s evidence also established that the IURC
determined in its Final Incident Report that “odorant levels [were] within the
acceptable range.” Id. at 135–36, 140–41. The designated evidence also
demonstrated that the Incident triggered an excess flow valve installed
underground on the service line to close, which immediately cut off all gas flow
to the Phillips Residence. The excess flow valve functioned as it was designed
to do. This evidence designated by Indiana Gas was not disputed by Miller.
Instead, Miller designated evidence that, prior to the Incident, Janet did not
smell gas in the Phillips Residence and that Billy never told Janet that he
smelled gas in the Phillips Residence. She also designated evidence that, when
they arrived at the scene of the Incident, neither Captain Sharp nor Higdon
smelled gas from the line located at the Phillips Residence.
[30] Construing the evidence in a light most favorable to Miller as the non-movant,
we conclude that Indiana Gas’s designated evidence established that there was
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 19 of 23 no genuine issue of material fact. Under the IPLA, Miller was required to
prove that the natural gas provided by Indiana Gas was defective. However,
Indiana Gas’s designated evidence established that the odorization of natural
gas is governed by federal regulation, and all of the odorator readings taken in
the area surrounding the Phillips Residence were within the range required by
federal regulation. After Indiana Gas presented its designated evidence
demonstrating the absence of any genuine issue of fact as to a determinative
issue of whether the natural gas was defective, the burden shifted to Miller to
come forward with contrary evidence showing an issue for the trier of fact. See
Hughley, 15 N.E.3d at 1003.
[31] Essentially, the only contrary evidence that Miller presented was that Janet did
not smell any gas. Even if Janet did not smell gas in the Phillips Residence
prior to the Incident, this merely establishes that she did not smell gas, not that
it was not properly odorized under the federal regulation, which was the
material fact at issue. Further, the evidence that Captain Sharp and Higdon did
not smell gas when they arrived on the scene of the Incident is explained by the
fact that the gas had been shut off to the Phillips Residence when the excess
flow valve was triggered because of the Incident. Simply put, Miller’s
designated evidence is not material to the question of whether the gas provided
by Indiana Gas was defective. The designated evidence establishes that there is
no genuine issue of material fact that the natural gas was properly odorized
under the federal regulatory standard and was therefore not defective under the
IPLA.
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 20 of 23 [32] Miller next argues that the trial court erred when it held that Indiana Gas had
no duty to warn of odor fade under the circumstances of this case. In its order,
the trial court found that the only evidence in the summary judgment record
established that odor fade was not implicated in the Incident, and even if it had
been implicated, the evidence provided that there are no state or federal
regulations that require Indiana Gas to notify customers about odor fade.
[33] As to odor fade, Indiana Gas designated evidence that odor fade is a
phenomenon that “can occur on newly installed plastic or steel pipelines until
the pipe has become ‘pickled,’ e.g. the inner wall of the pipe has adsorbed as
much odorant as it can adsorb.” Appellant’s App. Vol. VII p. 153. However,
the evidence here established that the pipes at issue for the Phillips Residence
were older, with the steel main being in service for approximately forty-eight
years and the plastic service line being in service for over eighteen years.
Because these pipes had been exposed to natural gas for years, odor fade was
not an issue. Indiana Gas also designated evidence that there are no state or
federal regulations that require it to notify customers about odor fade. In
response, Miller did not designate any evidence that odor fade was implicated
in the Incident.
[34] Instead of relying on an evidentiary dispute as to the existence of odor fade,
Miller relies on Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155 (Ind. Ct.
App. 1997), trans. denied, where our court found that the designated evidence
led to a conclusion that a genuine issue of material fact existed as to whether
the odorant performed as intended because the parties disputed the duration of
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 21 of 23 the gas leak, the extent to which the gas had migrated into the home, if at all, as
well as the plaintiffs’ ability to detect the smell of natural gas. Id. at 161.
Therefore, odor fade was found to be implicated in circumstances present in
that case. Id. at 160–61. However, here the evidence designated to the trial
court established that odor fade was not implicated in the Incident based on the
age of the pipes involved. Thus, the Downs case is inapposite to the present
case. Because Indiana Gas’s designated evidence established that odor fade
was not implicated in the Incident, and Miller designated no evidence to oppose
this, there was no genuine issue of material fact regarding the duty to warn of
odor fade.
[35] The moving party bears the initial burden of demonstrating the absence of any
genuine issue of fact as to a determinative issue, and then the burden shifts to
the non-moving party to come forward with contrary evidence showing a
genuine issue of material fact for the trial court. Ali v. All. Home Health Care,
LLC, 53 N.E.3d 420, 427 (Ind. Ct. App. 2016) (citing Williams v. Tharp, 914
N.E.2d 756, 761 (Ind. 2009)). Because the designated evidence here shows that
there was no genuine issue of material fact as to whether the natural gas was
properly odorized under the federal regulatory standard and that there was no
duty to warn of odor fade, Indiana Gas was entitled to judgment as a matter of
law. The trial court did not err when it granted summary judgment in favor of
[36] Affirmed.
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 22 of 23 May, J. and Altice, J., concur.
ATTORNEYS FOR APPELLANT Ashton Rose Smith Emily A. DeVuono Moore Law Group, PLLC Louisville, Kentucky
ATTORNEYS FOR APPELLEE Thomas J. Costakis Libby Yin Goodknight Hilary K. Leighty Krieg DeVault LLP Indianapolis, Indiana Blake P. Holler Krieg DeVault LLP Carmel, Indiana
Court of Appeals of Indiana | Opinion 25A-CT-866 | February 20, 2026 Page 23 of 23