Metropolitan News-Enterprise


Tuesday, August 11, 2009


Page 1


Court Rejects Utility’s Liability For Carbon Monoxide Leak


By Sherri M. Okamoto, Staff Writer


A utility company’s awareness that a wall furnace was permitting potentially lethal levels of carbon monoxide to seep into the living quarters of a Paramount home did not impose a duty on the utility to take action to remove the occupants from harm, this district’s Court of Appeal has ruled.

Div. Eight found that Los Angeles Superior Court Judge William Barry erred in his reasoning but reached the correct result. The court upheld the dismissal of the personal injury action filed by Lee Williams and his family against Southern California Gas Company.

The opinion was filed July 13 and certified yesterday for publication.

The family had rented the house, which had natural gas appliances including a wall furnace, water heater and stove, from Hy T. Chhun. On two occasions, a representative of the gas company came to the house to inspect the water heater.

‘Telltale Sign’

In order to reach the water heater, the complaint asserted, the gas company employee would have to pass directly in front of the wall furnace, which had a “large, visible black discoloration” caused by soot on the grate covering it, a “telltale sign” the furnace was venting carbon monoxide fumes into the living room.

On the first night that the family ran the furnace, Williams’ wife, Sherrie Powdrill, awoke to find her husband “foaming at the mouth,” and their children—6-year old Kalonni and 15-year old Montice—both unconscious, the family’s attorney, Barry B. Novack, said.

Novack said that the entire family was hospitalized for carbon monoxide poisoning, which caused lasting “cardiac problems” for Williams and “significant brain injury” to his daughter.

Product Liability Action

The Williams family later filed a product liability action against the furnace’s manufacturer and their landlord. Their discovery responses to interrogatories in this action identified the former and current property owners as being responsible to maintain the furnace and having knowledge that the wall furnace had not been properly maintained. 

Ultimately the action was settled by a payment of $180,000 by the Williams Furnace Company.  Chhun also settled, but the Court of Appeal said it was unclear whether he made a financial contribution to the settlement.

Subsequently, the family filed suit against the gas company asserting the utility was negligent in inspecting, testing, servicing and repairing the gas wall furnace; failing to warn them of the unsafe condition of the gas wall furnace or the danger it posed;  and allowing the furnace to remain in a dangerous condition.

But Barry, noting that the family had not identified the utility as a party with knowledge of the condition of the furnace or that the furnace had not been properly maintained in the previous action, found the family’s argument “flatly contradicts their prior sworn responses to the contrary” and sustained the utility company’s demurrer.

Writing for the appellate court, Justice Madeleine Flier disagreed, positing that the claim against the furnace manufacturer and landlord based on a theory that the furnace malfunctioned was not inconsistent with a claim against the utility that the soot marks on the furnace’s cover should have been noted. “At most, they are alternative factual allegations relying on alternative legal theories; this does not run afoul of truthful pleading,” she said.

“While the [trial] court could take judicial notice of the discovery responses, it was not authorized to draw from those responses the inference that respondent was unaware of defects in the wall furnace, nor was it correct to find, based on this inference, that the operative complaint was not truthful,” Flier explained.

Flier also took issue with the trial court’s apparent finding that the utility owed the Williams family a duty of care, emphasizing that the utility “may well have realized that appellants were in peril, but this, standing alone, did not impose a duty on respondent to take action.”

The fatal flaw in the Williams’ theory that the discoloration on the furnace should have put the utility on notice of the improper carbon monoxide venting, Flier said, was that it addressed a defect in the appliance itself, and not in any product or service generated or furnished by the gas company.

“From a policy perspective, it is the manufacturer and/or the lessor of the wall furnace who should be responsible for its condition,” she concluded. “As far as the wall furnace is concerned, respondent was a bystander who was not under a duty to act.”

Acting Presiding Justice Laurence D. Rubin and Justice Tricia A. Bigelow joined Flier in her decision.

The Williams family was represented by Novack and Jonathan Parrott of the Law Offices of Barry Novack, while the utility was represented by Sabina B. Clorfeine, in-house counsel for Sempra Energy, its parent company.

Novack said that his clients would be petitioning the Supreme Court for review of the decision.

He criticized the ruling as “a terrible decision for consumers,” which “taken to its logical conclusion” would allow a public utility to “act with impunity” in ignoring dangerous conditions from other items which use natural gas.

The attorney contended that there should be a special relationship between consumers and the gas company based on the utility’s “monopoly” on the sale of a “dangerous, explosive item,” which would obligate gas company employees to “use the expertise that they’re trained in and point out a dangerous condition to consumers.”

A spokesperson for the gas company said “we encourage customers to make sure their appliances are installed properly and operating safely” and “we pride ourselves with providing out customers with no-cost service upon their request.”

While she insisted “safety is a high priority for us,” she maintained that “it is the landlord or homeowner’s responsibility to ensure safe installation and operation of gas appliances in the home.”

The case is Williams v. Southern California Gas Company, B210897.


Copyright 2009, Metropolitan News Company