Giordano v. Rheem Mfg. Co.

643 So. 2d 492, 1994 WL 541974
CourtLouisiana Court of Appeal
DecidedOctober 5, 1994
Docket93-1614
StatusPublished
Cited by8 cases

This text of 643 So. 2d 492 (Giordano v. Rheem Mfg. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giordano v. Rheem Mfg. Co., 643 So. 2d 492, 1994 WL 541974 (La. Ct. App. 1994).

Opinion

643 So.2d 492 (1994)

Johnny Joseph GIORDANO, Jr. and Julie Diane Corbello Giordano, Plaintiffs-Appellants
v.
RHEEM MANUFACTURING COMPANY, et al, Defendants-Appellees.

No. 93-1614.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1994.

*493 Joseph Walter Greenwald, Ernest C. Hunt Jr., and Bernard Seymour Smith, for Johnny Joseph Giordano Jr. et ux.

Laurence E. Larmann, for Rheem Mfg. Co., et al.

Charles Leonard Patin Jr. and Jay Morton Jalenak Jr., for City of Westlake.

Before GUIDRY, C.J., and DECUIR and PETERS, JJ.

GUIDRY, Chief Judge.

Plaintiffs, Johnny and Julie Giordano, appeal from a summary judgment rendered in favor of defendant, the City of Westlake (Westlake), which dismissed with prejudice their negligence claims and the similar claims of defendant/cross-claimant, Rheem Manufacturing Company.[1] We affirm.

PROCEDURAL HISTORY AND FACTS

This wrongful death and survival action arises from the death of plaintiffs' two-year old son, Gavin Giordano. The child died from burn injuries sustained on April 20, *494 1991 when the Giordano's natural gas hot water heater caught fire as a result of its exposure to flammable gasoline and/or gasoline vapors. The Giordanos originally sued Rheem Manufacturing Company, the alleged manufacturer of the hot water heater; Westlake, the natural gas supplier; and, William and Diane Stewart, the former owners of the Giordano home. In their petition, plaintiffs alleged that Westlake was negligent in the following respects:

a. Connecting its natural gas transmission lines to the water heater and placing the water heater in operation when it knew or should have known that the heater was installed in a location where flammable materials would likely be stored and/or used and said installation was improper under the applicable standards and codes creating an unreasonable dangerous condition to the users of the water heater or those in close proximity thereto; and,
b. In failing to correct the above described condition by either stopping the flow of gas to the heater or warning the users or persons in close proximity of the dangerous condition which these defendants knew or should have known.

Rheem answered plaintiffs' suit and therein asserted a cross-claim against Westlake by pleading the same allegations of negligence contained in plaintiffs' petition.

After a period of discovery, Westlake filed the motion for summary judgment. The trial court determined that no material facts were in dispute and that, because Westlake owed no duty to plaintiffs under the particular facts, Westlake was entitled to summary judgment. On appeal, plaintiffs assert that the trial court erred because genuine issues of material fact are in dispute regarding conflicts in testimony and the duties assumed by Westlake.

In support of its motion for summary judgment, Westlake presented the deposition testimony of Johnny Giordano and Michael Johnson, Westlake's natural gas serviceman, along with other exhibits. Giordano stated that he and his family moved into their home in late September of 1990. They rented the home for four months before purchasing it on January 31, 1991. The home is located in Moss Bluff, an unincorporated area of Calcasieu Parish east of Lake Charles. Although this area is outside the geographical city limits of Westlake, the city supplies the area with natural gas service through its city-owned utility system. According to Giordano, the home contained two natural gas powered appliances, the central heating unit and the hot water heater involved in this case. The hot water heater was located in a separate 9' × 6' storage room at the rear of the carport.

It is undisputed that Johnson went to the Giordano home on September 28, 1990 to connect the natural gas. At the time, the Giordanos were in the process of moving into the house. According to Giordano, Johnson first turned on the gas supply to the home then, at Giordano's request, went to the storage room where the hot water heater was located. Giordano was having difficulty trying to light the hot water heater pilot light and asked Johnson for assistance. Giordano testified that Johnson declined to actually light the pilot light because he was not supposed to do that for anyone. However, Giordano further stated that Johnson instructed him as to how to light the pilot light. According to Giordano, Johnson did not get down on his hands and knees to look at or inspect the heater and said nothing to him about the storage of flammable substances in the vicinity of the hot water heater installation. Giordano remembered having some things stored in the room on that date, but he could not specifically recall what exactly was in there. He declined to speculate but did remember that the storage room was not completely empty. Also, Giordano stated that Johnson made no comment "one way or the other" about the hot water heater.

Giordano expressly stated that this was the only occasion when a Westlake employee entered the storeroom. After being instructed by Johnson, he properly lit the pilot light. Sometime later in the winter, a strong northerly wind extinguished the flame. Giordano once again successfully lit the pilot light. After this, he had no further problems with the hot water heater until the April 20, 1991 accident in question.

*495 Johnson's testimony concerning the September 28, 1990 service call to the Giordano residence varies from that of Giordano. Johnson testified that he and Peter Datenhoff, a co-worker, went to the residence to connect natural gas service. He stated, preliminarily, that, when connecting natural gas service to a customer's home, he must first conduct a shut-in test of the customer's line to determine if any leaks exist in the house. The test is accomplished by turning on the natural gas, unlocking the meter, slowly opening the valve and looking at the meter dial. If the dial turns, this indicates a leak is present in the house. If so, he is required to turn off the main valve and inform the customer to repair the leak before natural gas service can begin. He recalled doing this at the Giordano house and, upon determining that no leaks existed, left the natural gas valve on.

Contrary to Giordano's testimony, Johnson stated that he is allowed to and routinely does light customers' natural gas appliance pilot lights. Johnson went into the house and lit the pilot light on the central heating unit while Datenhoff went to the storage room to do the same on the hot water heater. When the central heating unit pilot light was successfully lit, Johnson went to the storage room. He explained that Datenhoff was having trouble lighting the hot water heater pilot light. Datenhoff enlisted Johnson's assistance. Johnson tried to light it but it kept going out. He informed Giordano that something was wrong with the pilot light and that he could not light it. According to Johnson, he told Giordano that he would have to turn off the hot water heater and disconnect or isolate it from the rest of the system. Johnson advised him to have a plumber or a heater repairman repair the hot water heater. He turned off the natural gas line valve as well as the hot water heater control valve and temperature control. He did not shut off the main natural gas line at the meter. Thereafter, he and Datenhoff left the premises and did not return to the home.

Johnson stated that, while at the Giordano residence, he saw nothing other than the hot water heater in the storage room. He specifically recalled not seeing any gasoline stored therein.

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Cite This Page — Counsel Stack

Bluebook (online)
643 So. 2d 492, 1994 WL 541974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giordano-v-rheem-mfg-co-lactapp-1994.