Friday, October 8, 2010
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C.A. Overturns Huge Verdict in Natural Gas Odor Case
By STEVEN M. ELLIS, Staff Writer
The Fifth District Court of Appeal yesterday reversed a jury’s $12 million damage award to two plumbers who claimed that Southern California Gas Company’s failure to warn that artificial odor, added to natural gas to identify it, can fade led to an explosion that seriously injured them.
The panel reasoned that the men, who were severely burned while trying to light a water heater’s pilot light in an enclosed room, failed to establish that a warning that the odor fades when the gas passes through new steel pipes would have prevented the accident.
Michael Sean Huitt and Matt Nino were injured in 2005 at a construction site owned by the Porterville Unified School District in Tulare County after Huitt, following unsuccessful attempts to light the pilot light, decided to bleed any accumulated air in the natural gas pipe. Natural gas accumulated in the enclosed water heater closet and exploded when Huitt sealed the line and again attempted to light the pilot light.
Huitt and Nino sued the gas company, alleging that the gas that accumulated in the closet lacked any odorant. Natural gas, in its natural state, is odorless and colorless, and federal regulations require that odorant be added so that the gas is detectable by a person with a normal sense of smell.
However, odorant added to natural gas tends to adhere to the surface of new steel gas pipes, a process known as adsorption, until the pipes become seasoned. Although the gas supplied to the school site was properly odorized by the company, the odor faded as the gas traveled through the school district’s new pipes and neither Huitt nor Nino smelled an odor before the explosion.
The two men argued that the gas company had a duty to warn them of the possibility of adsorption, or “odor fade,” and that they would not have bled the gas into a confined space had they known the danger they faced.
A jury agreed, and awarded both plaintiffs more than $1 million in compensatory damages in a trial before Tulare Superior Court Judge Lloyd L. Hicks. Jurors also found that the gas company acted with malice, and awarded the plaintiffs $5 million each in punitive damages.
The gas company appealed, arguing, among other things, that it owed no duty to the plaintiffs and that, even if it did, the plaintiffs failed to show that a failure to warn actually caused the injuries. The Court of Appeal agreed and reversed the judgment.
The plaintiffs contended that a notice about odor face could be included in gas customers’ bills, or a warning posted on the company’s website. They also suggested the company’s employees could advise about the danger while attending various plumbing organizations’ meetings.
But Justice Dennis A. Cornell said that every one of those examples required “some proof that the warning would have reached the plaintiffs.” Noting expert testimony that the plaintiffs acted reasonably in ignoring instructions on the water heater to wait five minutes between attempts to relight the pilot light, he said the record lacked such proof.
“Odor fade is a potentially dangerous phenomenon that apparently is not well known in the new construction industry,” he wrote. “Efforts should be made to inform appropriate individuals about the phenomenon, and we encourage the Gas Company, as well as others in the industry, to undertake efforts to educate those working in new construction. Plaintiffs’ failure to establish that a timely warning issued by the Gas Company would have prevented this accident, however, precludes recovery.”
Justices Rebecca A. Wiseman and Brad R. Hill joined Cornell in his opinion.
The case is Huitt v. Southern California Gas Company, 10 S.O.S. 5808.
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