No. 2-08-0878 Filed: 4-28-10 _________________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT _________________________________________________________________________________
NANCY TURNER and ) Appeal from the Circuit Court STEFANIE TURNER, ) of Winnebago County. ) Plaintiffs-Appellants, ) ) v. ) Nos. 02--L--243 ) 04--AR--174 NORTHERN ILLINOIS GAS COMPANY, ) d/b/a Nicor Gas Company, ) ) Defendant-Appellee ) ) Honorable (American Family Mutual Insurance ) J. Edward Prochaska, Company, Plaintiff). ) Judge, Presiding. _________________________________________________________________________________
JUSTICE BURKE delivered the opinion of the court:
On May 28, 2002, plaintiffs, Nancy Turner and her teenage daughter, Stefanie Turner, were
seriously injured when a natural gas explosion destroyed their rental home. Case number 02--L--243
is a personal injury case that plaintiffs filed against defendant Northern Illinois Gas Company, d/b/a
Nicor Gas Company, which had supplied and regulated the gas supply to the building. Case number
04--AR--174 is a subrogation action that American Family Mutual Insurance Company (American
Family) filed against defendant to recover sums American Family paid to or on behalf of its insured,
Nancy Turner, for personal property damages she incurred from the explosion.
Plaintiffs' fifth amended complaint alleged that defendant was negligent for failing to
thoroughly inspect the gas piping in their basement and to warn plaintiffs of any risk posed by the No. 2--08--0878
condition of the piping. Before the date of the explosion, plaintiffs neither detected nor alerted
defendant to a possible gas leak. However, plaintiffs alleged that defendant received constructive
notice of a problem when defendant's employee was at the premises on a service call 17 months
before the explosion. The trial court granted defendant summary judgment on the ground that
defendant owed no duty to inspect for the defect or to warn plaintiffs. We affirm.
FACTS
Plaintiffs were residing at 2025 Eggleston Road in Rockford on May 28, 2002, when they
were seriously injured by the natural gas explosion, which destroyed the building. Natural gas is
odorless in its original state. The chemical ethyl mercaptan, which is a sulfur component, is added
as an odorant to give natural gas its distinctive smell so leaks can be detected more easily. On the
night before the explosion, Stefanie, who was a junior in high school at the time, arrived home at
10:30 p.m. She detected a faint odor when she walked into the home, but she did not identify it as
natural gas because she did not know what natural gas smells like. The odor seemed to come from
the kitchen, so Stefanie believed it was from something her mother had cooked. Nancy was in bed
at the time, and Stefanie went to bed also.
On May 28, 2002, Nancy woke up around 6:30 a.m. and smelled what she thought was
natural gas. Nancy knew that a gas leak created a risk of fire or an explosion. Stefanie recognized
the odor as the same she had detected the night before, but the smell had grown much stronger.
Following the odor, Nancy and Stefanie descended the basement stairs. Stefanie stated in her
affidavit that the staircase was enclosed. The basement was unfinished, but Nancy had placed a bed
in the southeast corner of the basement for her son to use when he came home from college. At the
bottom of the stairs, various natural-gas-fueled appliances were ahead and to the right in the
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northwest corner of the basement. Nancy turned left and heard a hissing noise and saw a broken pipe
in the ceiling of the southeast corner above the bed. According to Stefanie, if a person stood near
the appliances in the northwest corner, the staircase would block the view of the southeast corner
where the leak occurred.
Nancy described the pipe as hanging in a "V" shape and separated at the bottom. Stefanie saw
that the break in the pipe appeared to be directly below the gas stove in the kitchen upstairs. The
break was in a long stretch of pipe that appeared to have broken at a connection point.
Nancy told Stefanie that they needed to get out of the house. Nancy walked up the stairs to
call 911, and Stefanie walked to the laundry area of the basement to retrieve a pair of pants to wear.
Nancy testified that the explosion occurred right after she dialed the "9" on the telephone. Stefanie
testified that she had reached the foot of the basement stairs when she heard a tick and the house blew
up.
Nancy was thrown to the front yard, and her left leg was broken in four places and a portion
of her foot was severed completely. Nancy also suffered a fractured right clavicle and a collapsed
lung. Stefanie felt intense heat during the explosion and could not free herself from the rubble
because her right foot was trapped. Stefanie screamed and was helped by neighbors. Stefanie
suffered a collapsed lung and severe burns to her arms, hands, abdomen, and back. The explosion
was traced to the gas leak in the exposed pipe in the southeast corner of the basement.
Following the explosion, Mark Marinaro, a fire scene investigator for the City of Rockford,
investigated the scene. Jerry Roberts, one of defendant's representatives, told Marinaro that the gas
supplied to plaintiffs' residence contained the odor additive. Marinaro testified at his deposition that
he did not know whether there was any deficiency in the gas piping. Marinaro concluded that
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defendant's exterior gas meter was not involved in the gas leak at plaintiffs' residence and that no
other residence on the street had been leaking gas. Marinaro concluded that the source of the ignition
was either the furnace or the water heater and that the explosion was caused by a single leak in the
broken pipe that Nancy had identified.
The parties submitted evidence of the installation and maintenance of the gas piping. In 1995,
Maynard Jarl built the duplex at 2023-25 Eggleston Road. Warren Plumbing Company installed the
interior plumbing and gas lines. In 1998, the City of Rockford sent Latisha Cardeno, a building
inspector, to evaluate the building. Cardeno's inspection ticket does not show any code violations
or problems with the gas piping.
On December 5, 2000, Carol Miranda resided at 2025 Eggleston and called defendant to
report that she had no gas or hot water. Defendant's technician Gerald Dray determined that the
exterior gas meter was "stuck" and would not send gas to the residence. Dray performed the ordinary
repair for the problem. He turned off the gas service, replaced the meter, reactivated the gas service,
and went inside to relight the pilot lights on the gas-fueled appliances, including the furnace and the
water heater in the basement.
Plaintiffs introduced evidence of service calls to the adjacent apartment, which was a mirror
image of plaintiffs' residence. On May 18, 1999, Cindy Sommers called defendant about an odor
from her range at 2023 Eggleston. The record of the service call contains the note "Left Range
Valved Off," which indicates that the technician must have found a condition hazardous enough to
warrant shutting off the appliance. The technician left a hazard tag on the range, and a copy of the
tag would have been returned to defendant.
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On February 1, 2001, which was just two months after the meter replacement at 2025
Eggleston, Sommers reported poor gas pressure at 2023 Eggleston. Defendant's technician
responded to the call and determined that Sommers' meter also was stuck. The meter was replaced.
Plaintiffs moved into 2025 Eggleston on March 1, 2001. Until the explosion on May 28,
2002, plaintiffs' only contact with defendant was to initiate gas service.
In 2002, plaintiffs filed a complaint against Jarl, who was the owner and general manager of
the premises, and against Warren Plumbing Company, which had installed the gas piping. Plaintiffs
alleged that their interior gas piping had been installed negligently and had caused the explosion. In
2004, plaintiffs added defendant to the suit. Plaintiffs settled with Jarl and Warren Plumbing
Company and filed a fifth amended complaint, against defendant alone.
The fifth amended complaint alleged the negligent operation of defendant's gas facilities, such
as meters, and negligent failure to inspect or to warn plaintiffs about the condition of the customer-
owned interior gas piping. Plaintiffs alleged that, "for some time" before the explosion, the gas piping
created hazardous conditions, including the following: the gas lines were not piped according to
particular codes; the pipes lacked adequate hangers; the hangers were insufficiently spaced; the pipes
were connected with improper couplings and bushings; at least one of the pipes was cross-threaded;
a pipe was uncapped; and a pipe in the basement was not properly affixed to the ceiling. Plaintiffs
alleged that defendant knew or should have known of these hazardous conditions.
Plaintiffs allege that defendant owed and breached duties (1) "to inspect, maintain, and
regulate the gas service at 2025 Eggleston Road in Rockford, Illinois in a reasonably safe manner for
the safety of its users, in particular the plaintiffs" and (2) "to warn the plaintiffs *** of any dangerous
and/or hazardous conditions related to the gas lines, gas meter, gas service and/or gas appliances" that
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defendant knew or should have known were present. Plaintiffs alleged that defendant acted
negligently and proximately caused the injuries by inadequately inspecting the premises, failing to
correct the dangerous conditions, failing to warn plaintiffs of the risk, and failing to provide adequate
gas service.
Defendant moved for summary judgment under section 2--1005 of the Code of Civil
Procedure (735 ILCS 5/2--1005 (West 2008)). Plaintiffs abandoned their allegation of negligent
operation of defendant's gas facilities, but they defended their claim for negligent failure to inspect
or to warn plaintiffs about the interior gas piping.
In its motion for summary judgment, defendant argued that (1) none of defendant's equipment
caused the explosion and (2) defendant owed plaintiffs no duty under common law and, even if any
common-law duty existed, it was disclaimed by the tariff defendant had filed with the Illinois
Commerce Commission (ICC). A tariff is a public document setting forth the services being offered;
the rates and the charges for the services; and the governing rules, regulations, and practices relating
to those services. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 55 (2004). The Public Utilities
Act requires public utilities such as defendant to file tariffs with the ICC. 220 ILCS 5/9--102 (West
2008); Adams, 211 Ill. 2d at 55. A tariff is usually drafted by the regulated utility, but when duly filed
with the ICC, it binds both the utility and the customer and governs their relationship. Adams, 211
Ill. 2d at 55. Once the ICC approves a tariff, it " 'is a law, not a contract, and has the force and effect
of a statute.' " Adams, 211 Ill. 2d at 55, quoting Illinois Central Gulf R.R. Co. v. Sankey Brothers,
Inc., 67 Ill. App. 3d 435, 439 (1978), aff'd, 78 Ill. 2d 56 (1979).
Defendant's tariff on file with the ICC provides in relevant part as follows:
"Equipment Furnished and Maintained by Customer
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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 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."
Such tariff provisions are usually referred to as liability limitations. Adams, 211 Ill. 2d at 56.
The underlying theory of liability limitations is that, because a public utility is strictly regulated, its
liability should be defined and limited so that it can provide service at reasonable rates. A reasonable
rate depends in part on a rule limiting liability. Adams, 211 Ill. 2d at 57. The goal of a tariff is to
secure reasonable and just rates for all without undue preference or advantage to any; and because
that end is attainable only by adherence to the approved rate, based upon an authorized classification,
that rate represents the whole duty and the whole liability of the company. Adams, 211 Ill. 2d at 57.
The trial court granted defendant summary judgment on the basis that defendant owed no duty
to inspect the interior gas piping for defects or to warn plaintiffs. The trial court identified several
undisputed facts. Defendant did not install, own, or have any control over the interior pipes or
fixtures on plaintiffs' premises. Defendant was not responsible for the condition of plaintiffs' interior
pipes or fixtures. Defendant never received a report of a gas leak at plaintiffs' premises. Defendant
had no actual notice of a defect in plaintiffs' interior pipes or fixtures.
First, the court held that "the gas company in the present case had absolutely no notice of the
defect in plaintiffs' interior piping, actual or constructive" and "the mere presence of [defendant's]
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employee in plaintiffs' basement did not provide notice of the problem *** nor did it create a duty to
inspect the interior piping in the basement." Second, the court ruled that defendant owed plaintiff no
duty of care to inspect the premises, because the explosion was not reasonably foreseeable. Third,
the court held that defendant's internal policies did not create a duty to inspect, despite plaintiffs'
allegations. Fourth, the court ruled that defendant's tariff had the force and effect of law and that it
disclaimed any responsibility in connection with the installation, maintenance, or operation of
plaintiffs' equipment.
ANALYSIS
Plaintiffs' fifth amended complaint alleges that defendant was negligent for failing to inspect
the interior pipes in plaintiffs' basement during a service call 17 months before the explosion. During
the service call, the technician replaced a "frozen" or "stuck" exterior gas meter and, as part of his
job, went into the basement of plaintiffs' home to restart the pilot lights on several natural-gas-
powered appliances. Under plaintiffs' theory, the technician should have recognized that the pipes
in another area of the basement had been installed incorrectly so as to create a dangerous condition
and he then should have turned off the gas supply and warned plaintiffs of the risk, even though there
was no evidence of a leak at that time. The trial court concluded that defendant owed no such duty
to inspect.
On appeal, plaintiffs argue that, construed most favorably to them, the record supports the
conclusion that defendant owed plaintiffs a duty to inspect the premises, to warn of the risks, and to
exercise reasonable care in its provision and regulation of the gas service. Plaintiffs contend that (1)
defendant's tariff did not foreclose a duty under common law; (2) defendant had constructive notice
of the defect and therefore owed plaintiffs a duty; (3) defendant owed plaintiffs a duty even though
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defendant neither caused nor contributed to the defect; and (4) the likelihood and foreseeability of
an injury to plaintiffs outweighed any burden associated with defendant's duty. Plaintiffs argue that
summary judgment was precluded by a genuine issue of material fact as to whether defendant had
constructive notice of the gas piping defects at the premises. For the reasons that follow, we
conclude that the trial court correctly granted defendant summary judgment because defendant had
neither constructive nor actual knowledge of the defect, and therefore defendant did not owe plaintiffs
a duty to inspect the piping, warn of the risk, or repair any defect in the piping. Our conclusion that
defendant owed no common-law duty obviates the need to consider plaintiffs' argument regarding
defendant's tariff.
In a negligence action, the plaintiff must provide sufficient facts showing the existence of a
duty owed by the defendant, a breach of that duty, and an injury proximately resulting from the
breach. Klitzka v. Hellios, 348 Ill. App. 3d 594, 596 (2004), citing Vesey v. Chicago Housing
Authority, 145 Ill. 2d 404, 411 (1991). The existence of a duty is a question of law for the court to
decide, but the issues of breach of that duty and of proximate cause are factual matters for a jury to
decide. Adams, 211 Ill. 2d at 43-44. There can be no recovery in tort for negligence unless the
defendant has breached a duty owed to the plaintiff. Adams, 211 Ill. 2d at 44. Duty is a question of
whether the defendant and the plaintiff stood in such a relationship to one another that the law
imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.
Adams, 211 Ill. 2d at 44. In determining whether a duty exists, a court looks to certain relevant
factors, including: (1) the reasonable foreseeability that the defendant's conduct may injure another;
(2) the likelihood of an injury occurring; (3) the magnitude of the burden of guarding against such
injury; and (4) the consequences of placing that burden on the defendant. Adams, 211 Ill. 2d at 44.
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"Where the plaintiff fails to provide facts 'from which the court could infer the existence of
a duty,' summary judgment for the defendant is appropriate." Klitzka, 348 Ill. App. 3d at 596,
quoting Vesey, 145 Ill. 2d at 411. In all appeals from the entry of summary judgment, we conduct
a de novo review of the record. Klitzka, 348 Ill. App. 3d at 596-97, citing Espinoza v. Elgin, Joliet
& Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
The purpose of summary judgment is not to try a question of fact but, rather, to determine
whether a genuine issue of material fact exists. Adams, 211 Ill. 2d at 42-43. Summary judgment is
appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in the
light most favorable to the nonmoving party, 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. 735 ILCS 5/2--1005(c) (West
2008); Klitzka, 348 Ill. App. 3d at 597. In reviewing a grant of summary judgment, this court must
construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and
liberally in favor of the nonmoving party. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).
Where reasonable persons could draw divergent inferences from the undisputed material facts or
where there is a dispute as to a material fact, summary judgment should be denied and the issue
decided by the trier of fact. Espinoza, 165 Ill. 2d at 114. If a party moving for summary judgment
introduces facts that, if not contradicted, would entitle him to a judgment as a matter of law, the
opposing party may not rely on his pleadings alone to raise issues of material fact. Klitzka, 348 Ill.
App. 3d at 597, citing Hermes v. Fischer, 226 Ill. App. 3d 820, 824 (1992).
The summary judgment procedure is to be encouraged as an aid in the expeditious disposition
of a lawsuit. Adams, 211 Ill. 2d at 43. However, summary judgment is a drastic means of disposing
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of litigation that should not be granted unless the movant's right to judgment is clear and free from
doubt. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007).
Natural gas is a dangerous substance when it is not under control. A gas company is not liable
as an insurer for injuries sustained as the result of the escape of gas but, rather, for its negligence in
permitting the gas to escape. Adams, 211 Ill. 2d at 45. Expressions of the degree of care that a gas
company must exercise range from "reasonable" to "high," and the variety of expression simply means
that the degree of care to prevent the escape of gas from its pipes must be proportional to the level
of danger that the company must avoid. Adams, 211 Ill. 2d at 45.
Although a gas company must exercise the requisite degree of care so that no injury occurs
in the distribution of gas while it is under the company's control, such responsibility is limited to when
the gas is in the company's own pipes. Adams, 211 Ill. 2d at 46, citing Doxstater v. Northwest Cities
Gas Co., 65 Idaho 814, 826-27, 154 P.2d 498, 504 (1944). In Illinois, the seminal example of the
common-law rule pertaining to gas distribution in a consumer's pipes and fixtures is Clare v. Bond
County Gas Co., 356 Ill. 241 (1934).
In Clare, the plaintiff operated a shop in a building that had been piped for natural gas. Clare,
356 Ill. at 242. In 1931, the natural gas delivered to the building was odorless. Clare, 356 Ill. at 243.
The plaintiff bought a gas stove for heat and hired a plumber to install it. After the installation, the
plaintiff noticed an offensive odor that gave her a headache and irritated her eyes and respiratory
organs. Clare, 356 Ill. at 242. The plaintiff notified the gas company, whose president visited the
shop with the plumber and concluded that the odor was caused by the fumes of burned gas. The
company president made several visits and recommended various remedies, including checking the
stove and the gas meter. The suggestions were implemented, but the problem continued. Clare, 356
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Ill. at 242. The smell was so strong in the closet where the gas meter was located that the plaintiff
kept the closet door closed. The source of the odor could not be found. Clare, 356 Ill. at 242.
Several weeks later, a friend of the plaintiff was looking for a screwdriver in the dark closet
and lit a match to see. An explosion occurred, blowing apart the floor. An investigation disclosed
that a gas pipe running beneath the floor contained holes caused by rust. The gas that escaped from
the pipe had accumulated in the closet and was ignited by the match. Clare, 356 Ill. at 242-43.
The gas company presented evidence that some natural gas has a faint odor, if confined to a
small room, but the gas furnished by the company had none at all, and that the fumes from burned gas
affect the nose and eyes, but unburned gas does not. The company's president made several attempts
to locate the odor's source, he had no knowledge that gas was escaping, and the plaintiff's complaints
of eye and respiratory irritation convinced him that the trouble came from burned gas fumes. Clare,
356 Ill. at 243.
The plaintiff obtained a judgment against the gas company. On appeal, the company argued
that "there was no evidence in the record to warrant the finding that it [the gas company] had notice
and knowledge that the pipes were leaking and gas was escaping into the building; that without such
notice or knowledge there was no duty incumbent upon it to shut off the gas supply." Clare, 356 Ill.
at 243.
The Clare court ruled for the gas company, relying on established common law: "In 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." Clare, 356 Ill. at 244. The court held that, where a gas company does
not install the pipes or fixtures on a customer's premises, does not own them, and has no control over
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them, the company is not responsible for their condition or for their maintenance, and therefore the
company is not liable for injuries caused by a leak therein of which the company had no knowledge.
Clare, 356 Ill. at 244.
The Clare court looked to the common law as it had evolved to that time, and Clare continues
to accord with our understanding of the common-law rule. Adams, 211 Ill. 2d at 47, citing Oliver
v. Peoples Gas Light & Coke Co., 5 Ill. App. 3d 1093, 1099 (1972); Bellefuil v. Willmar Gas Co.,
243 Minn. 123, 126, 66 N.W.2d 779, 782 (1954) (discussing rule in context of gas appliances);
Doxstater, 65 Idaho at 827-28, 154 P.2d at 504, quoting Kelley v. Public Service Co. of Northern
Illinois, 300 Ill. App. 354, 362 (1939); 27A Am. Jur. 2d Energy & Power Sources §§394, 395
(1996) (stating rule in context of appliances); 27A Am. Jur. 2d Energy & Power Sources §403
(1996) (stating general rule); 38A C.J.S. Gas §123, at 151-53 (1996); Annot., Liability for Gas
Company for Injury or Damage Due to Defects in Service Lines on Consumer's Premises, 26
A.L.R.2d 156 (1969).
Adams explains the rationale underlying the general rule announced in Clare. A person's duty
can extend no further than the person's right, power, and authority to implement it, and a gas
company employee does not have the right to enter the premises of a consumer to inspect pipes or
fixtures except upon the license or permission of the owner. Adams, 211 Ill. 2d at 47, citing Clare,
356 Ill. at 244. The consumer, by applying for gas service, assumes the burden of inspecting and
maintaining the pipes and fittings on the consumer's property in a manner reasonably suited to
accommodate the required service. Adams, 211 Ill. 2d at 47. The company has the right to assume
that the consumer's interior system of pipes and fittings is sufficiently secure to permit the gas to be
introduced with safety. Adams, 211 Ill. 2d at 47-48, citing Clare, 356 Ill. at 244-45.
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"Courts also reason that, in a negligence action, knowledge of the facts out of which the duty
to act arises is essential." Adams, 211 Ill. 2d at 48. For an act or omission to be regarded as
negligent, the defendant must have known, or ought to have known from the circumstances, that the
allegedly negligent act or omission endangered another. Adams, 211 Ill. 2d at 48. Accordingly, the
common-law rule that a gas company has no duty with respect to a consumer's pipes or fittings is
premised on the gas company's lack of knowledge or notice of a gas leak. Adams, 211 Ill. 2d at 48,
citing Bellefuil, 243 Minn. at 129, 66 N.W.2d at 784 ("the duty, by reason of actual or constructive
notice of some dangerous condition, must arise before the gas company can be found negligent for
its failure to inspect or shut off the gas supply").
The common-law rule has an exception on which plaintiffs now rely: " 'Where 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.' " Adams, 211 Ill. 2d at 48, quoting Clare, 356 Ill. at 243-44.
Plaintiffs argue that "[c]onstructive notice of a possible defect is sufficient [to create a duty],
and examining the instant case against the backdrop of Clare and Adams, it is apparent that
[defendant] was placed on adequate notice of potentially dangerous deficiencies pertaining to the gas
piping in the Eggleston Road duplex." Plaintiffs cite only the following evidence to support this
conclusion: (1) the service call to 2025 Eggleston in December 2001; (2) the two service calls to
2023 Eggleston in May 1999 and February 2001; and (3) the initiation of gas service at the two
residences.
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First, plaintiffs concede that defendant had no actual notice of the dangerous condition until
the duplex exploded. Second, viewing the evidence liberally in the light most favorable to plaintiffs,
we conclude that there is no genuine issue of material fact as to whether defendant had constructive
notice of the defect. See Williams, 228 Ill. 2d at 417. Under Clare and Adams, reasonable persons
could not draw divergent inferences from the undisputed material facts: defendant lacked constructive
notice. See Espinoza, 165 Ill. 2d at 114.
In the fifth amended complaint, plaintiffs identified improper piping installation as the defect
about which defendant knew or should have known. The service call at 2025 Eggleston 17 months
before the explosion did not give defendant constructive notice of any risk of explosion. There was
no evidence of an existing gas leak. At all relevant times, the natural gas supplied to the duplex
contained the legally mandated odorant, and plaintiffs have never alleged that Sommers or the
technician detected the odor, heard a hissing sound, or saw a break in the piping. Once the gas meter
was repaired and the gas service reactivated, the natural gas passed through the piping as intended.
The technician left the premises because the identified problem had been fixed, and nothing he
observed while replacing the meter gave any indication that another problem existed.
One could argue that defendant would owe a duty to inspect and to warn if the defect was
easily detectable, such as by smelling or hearing leaking gas or by observing defective pipes in the
technician's immediate work area. However, the defect in this case was not easily detectable. The
basement appliances that the technician relit were in the northwest corner, and the defective gas pipe
coupling was in the southeast corner. The basement staircase divided the room such that a person
standing near the appliances could not see the area of the defective piping. Plaintiffs did not ask or
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give permission to defendant's technician to enter the area of the defect, and therefore plaintiffs may
not argue that the technician was negligent for failing to inspect the pipes there.
In fact, defendant had less reason to know of the risk of a gas leak than did the gas company
in Clare, where it was determined that the gas company had neither actual nor constructive
knowledge of the risk. In Clare, the natural gas delivered to the building was odorless, and the rusty
leaking pipes were concealed under the floorboards. However, the problem was manifested by the
plaintiff's complaints of headaches and irritation of her eyes and respiratory organs. Thorough
investigations of the gas company's meter and exterior pipes disclosed no leak. The Clare court
concluded that the gas company had no duty to inspect the customer's pipes because the company
reasonably believed that the odor was from burned gas fumes, not leaking unburned gas.
In this case, defendant's technician had no constructive notice of any risk of a dangerous
condition. The technician was summoned to repair a stuck gas meter, while the gas company in Clare
was summoned to remedy an actual leak. Here, the technician was not asked to inspect for a possible
gas leak or defective piping as the gas company in Clare had been. Similarly, the initiation of gas
service gave defendant no constructive knowledge of any risk of a future gas leak or explosion,
because the contact with the gas company did not involve a problem with the service. No technician
had reason to know of any risk of a leak at plaintiffs' residence.
The service calls to the adjacent apartment at 2023 Eggleston gave defendants no constructive
knowledge of any risk of a future gas leak or explosion. In May 1999, Sommers alerted defendant
to an odor from her gas range, and the gas service to the appliance was sealed because of the risk of
a leak. Plaintiffs alleged that the two apartments were mirror images and were piped for gas
identically and, therefore, defendant knew or should have known that the gas range connection in
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plaintiffs' unit presented the same risk. However, nothing suggests that defendant was aware of the
similarity between the units, and plaintiffs never complained of an odor as their neighbor had done.
Two months after the meter replacement at 2025 Eggleston, Sommers reported poor gas
pressure at 2023 Eggleston, and defendant replaced her meter as well. Nothing from the service call
for a frozen meter at the residence next door would have alerted defendant to a risk of a gas leak in
plaintiffs' basement. That service call did not give defendant actual or constructive notice of the need
to inspect or to warn plaintiffs of a risk.
In Adams, the odorant added by the gas company caused the corrosion of a brazed brass
connector between the customer's kitchen range and the internal hard pipe gas source. Adams, 211
Ill. 2d at 37-38. The corrosion caused the connector to leak and led to an explosion that killed the
resident. The record showed that the gas company knew of the risk of corrosion to brass brazed
connectors exposed to the natural gas odorant. The notice was in the form of internal company
reports, letters from the American Gas Association to the company, and other explosions linked to
failed brass connectors in the company's service area. Adams, 211 Ill. 2d at 39-41. In fact, the gas
company told officials of a local municipality that it was aware of the connector hazard and would
instruct its service and construction personnel to alert customers to the need to replace the
connectors. Adams, 211 Ill. 2d at 41. The trial court granted the gas company summary judgment
on the ground that, because the connector belonged to the decedent rather than the company, the
company did not owe the decedent a legal duty to warn her that her connector was potentially
hazardous. Adams, 211 Ill. 2d at 42.
On appeal, the supreme court considered the novel issue of whether a gas company owes a
duty to warn its customer of the possible deterioration of the customer's fixtures when the fixtures
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are damaged, in part, due to the gas product itself. Adams, 211 Ill. 2d at 50. The Adams court ruled
that the gas company's knowledge of a leak or defect that would trigger such a duty may be actual
or constructive. Adams, 211 Ill. 2d at 49.
The supreme court concluded that, "while no issue exists in [Adams] regarding a duty to
inspect every connector, we agree with the following from Halliburton[ v. Public Service Co. of
Colorado, 804 P.2d 213 (Colo. App. 1990)]: '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.' " Adams,
211 Ill. 2d at 53, quoting Halliburton, 804 P.2d at 216. The duty is simply to use reasonable care in
dealing with the hazard, which includes a duty to warn. Adams, 211 Ill. 2d at 53.
The court ruled that the gas company owed the decedent the duty to warn of the connector
hazard. There was no dispute that the company had actual knowledge of the danger that sulfides in
the odorant would corrode the brazed connectors, ultimately causing the connectors to leak gas. The
defect meant that the connectors were certain to fail, the only issue was when. Adams, 211 Ill. 2d
at 54. The court stated that "[b]ased on its superior knowledge and the fact that it helped to create
the dangerous condition, we hold that [the gas company] owed a common law duty of reasonable
care with respect to the brazed connectors." Adams, 211 Ill. 2d at 54. The court expressed no
opinion as to whether the company had breached that duty. Adams, 211 Ill. 2d at 54.
Plaintiffs and defendant dispute the meaning of Adams. Defendant argues that Adams
establishes two requirements for an exception to a gas company's right to assume the absence of a
defect in customer-owned piping and fixtures: (1) the gas company has "superior knowledge" of the
danger and (2) the gas company had a role in creating the dangerous condition. Plaintiffs argue that
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superior knowledge is the only requirement and that in Adams the creation of the danger was merely
the mechanism by which the gas company learned of the danger. We agree with defendant that
plaintiffs' interpretation contradicts the unambiguous language used in Adams. See Adams, 211 Ill.
2d at 53 ("Since the gas companies [in Halliburton and Lemke v. Metropolitan Utilities District, 243
Neb. 633, 502 N.W.2d 80 (1993),] helped create the danger and had superior knowledge of the
hazard, they owed a responsibility to their customers with respect to that danger").
When viewing the pleadings, affidavits, depositions, and admissions on file in the light most
favorable to plaintiffs, we conclude that there is no genuine issue of material fact and that defendant
is entitled to a judgment as a matter of law. See 735 ILCS 5/2--1005(c) (West 2008); Klitzka, 348
Ill. App. 3d at 597. Defendant had neither actual nor constructive knowledge of the defect. Dray,
defendant's technician, visited the residence only once, 17 months before the explosion, and he
entered the basement only to relight the pilot lights. Jarl built the residence, Warren Plumbing
Company installed the gas piping, plaintiffs lived there more than a year, and Stefanie noticed a gas
smell on the night before the explosion but did not notify defendant. Defendant had no notice of the
defective installation of the gas piping or of any gas leak, and defendant had no responsibility for
creating the dangerous condition that caused the explosion.
The gas company in Adams had "superior knowledge" of the risk because consumers were
not in a position to be aware of the danger without adequate warnings and the danger was not one
normally associated with the connector. The connector that caused the explosion in Adams was
inherently defective, the use of the defective connector was not uncommon, and the gas company
knew the risk and told its installers and service technicians to notify customers with whom they came
in contact. Here, the gas piping used in plaintiffs' residence was installed incorrectly, but there is no
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evidence that the materials were inherently defective like the connector in Adams. Also, the negligent
installation was isolated to the duplex, and defendant had no reason to know of the risk.
For the preceding reasons, the judgment of the circuit court of Winnebago County is affirmed.
Affirmed.
BOWMAN and HUDSON, JJ., concur.
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