Riddell v Brown
Annotate this CaseDecided on May 31, 2005
Supreme Court, Cattaraugus County
Dennis Riddell and Rodney L. Brown, Plaintiffs,
against
June A. Brown, DONALD BEAVER, d/b/a BEAVER DAIRY FARM GREAT LAKES ENERGY PARTNERS, L.L.C., and WILLIAM H. MORRISON, Defendants.
66776
J. Kevin Laumer, Esq.
Fessenden, Laumer & DeAngelo
81 Forest Avenue
P. O. 590
Jamestown, New York 14702
For the Plaintiffs
Eustace & Marquez
1311 Mamoraneck Avenue, 3rd Floor
White Plains, New York 10605
For the Defendant Great Lakes
Hagerty & Brady
69 Delaware Avenue, Suite 1010
Buffalo, New York 14202
For the Defendant Beaver
Barth, Sullivan & Behr, LLP
600 Convention Tower
43 Court Street
Buffalo, New York 14202
For the Defendant Brown
Cohen & Lombardo, P.C.
343 Elmwood Avenue
P. O. Box 5204
Buffalo, New York 14213 For the Defendant Morrison
Larry M. Himelein, J.
In the early 1980's, defendant June Brown and her late husband Glenn entered into an
agreement with Envirogas, Inc., whereby Envirogas would drill a well on the Browns' property and the Browns would be entitled to free gas from the well. The agreement also provided that the Browns would have to install their own gas line from the wellhead to their residence and that the Browns would assume responsibility for their pipeline.
In October 1983, Glenn Brown hired defendant William Morrison to dig a trench from the wellhead to the Brown residence. Morrison claims to have dug the trench 36 inches deep. When Morrison was finished, Glenn Brown installed the pipeline and covered it, after which Morrison returned and connected the pipeline to the wellhead and the house.
In 1989, Glenn Brown deeded a parcel of land located between the Brown house and the well to his daughter Carol, but reserved to himself all oil, gas and mineral rights on the property. Carol is the wife of plaintiff Rodney Brown. Another parcel is also located between the Glenn Brown home and the wellhead and is now owned by plaintiff Dennis Riddell, but was owned by someone else when the pipeline was installed.
Glenn Brown died in 1990 and June Brown sold the parcel on which the well is located to Donald Beaver, his wife Clarice, and their sons, Duane and Dale Beaver. The deed provided that June Brown would retain her oil and gas rights on the property until January 1, 2001.
June Brown used the free gas until January 1, 2001 when Dale Beaver shut off the gas to June's house. Dale Beaver then asked Mr. Morrison to switch June Brown's gas service to National Fuel. Morrison went to June's house, observed that the gas was shut off and the pilot lights were out, and switched June Brown over to National Fuel and relit her pilot lights.
On October 30, 2001, plaintiffs Rodney Brown and Dennis Riddell were digging a hole for a gate they intended to install on the boundary between their properties. While using a motorized ten inch auger to dig a hole, with an open fire burning nearby, they struck the underground gas line which exploded and injured them.
Plaintiffs commenced this action against Great Lakes Energy Partners, the present owners of the well from which the pipeline ran; William Morrison, who dug the trench in 1983 and switched June Brown's gas service to National Fuel on January 1, 2001; June Brown, whose late husband installed the pipeline and who reserved her rights to the gas from the pipeline until January 1, 2001; and Donald Beaver, d/b/a Beaver Dairy Farm, who now owns the property where the well is located and shut off the gas to June Brown's residence on January 1, 2001. [*2]
Before the court is a myriad of motions which will probably cause paper prices to rise significantly. In chronological order, Morrison moved to dismiss all claims against him; Great Lakes moved to dismiss all claims against Great Lakes, or alternatively, sought judgment against June Brown for defense and indemnification; Donald Beaver moved for summary judgment dismissing the complaint against him; June Brown moved to dismiss Great Lakes' claim for contractual indemnification; and plaintiffs moved to amend the bill of particulars.
Plaintiffs' Motion to Amend the Bill of Particulars
A motion to amend a bill of particulars should be liberally granted where no prejudice
or unfair surprise will result (Bielawski v. Edgewater Recreation, Inc., 177 AD2d 1060, 578 NYS2d 301 [4th Dept. 1991]; De Cristofaro v. Joann Enterprises, Inc., 243 AD2d 1015, 663 NYS2d 689 [3d Dept. 1997]). However, where there is no merit to a proposed amendment, it should be rejected (see Painton v. Cosco Wholesale, Inc., 267 AD2d 288, 700 NYS2d 197 [2d Dept. 1999]), as it should be if the amendment will result in prejudice or surprise (see Dalrymple v. Koka, 295 AD2d 469, 744 NYS2d 427 [2d Dept. 2002]).
Plaintiffs wish to amend their bill of particulars to allege the failure to terminate the gas flow to the Brown residence; allowing gas to remain in the line after it was shut off; failure to monitor the flow of gas after it was shut off; failure to maintain or repair the shut off valve; trespassing on the Riddell property; and failure to ensure the pipeline was installed properly. There are other proposed amendments but they appear duplicative. The motion as far as the claimed trespass on the Riddell property is denied; that claim has no support this court can see. Because there is a connection between the proposed amendments to the bill of particulars and the motions to dismiss, the court will discuss the proposed amendments in connection with each defendant's motion to dismiss.
Morrison Motion to Dismiss
Morrison claims he dug a trench 36 inches deep and after Glenn Brown laid the pipe in the trench and covered it up, Morrison then hooked up the line at the house and at the wellhead. Seven or eight years later, he switched June Brown's service to National Fuel. How then, he asks, can he have any liability for the injuries to the plaintiffs?
Because, contend plaintiffs, on June 18, 2003, in the area where the explosion occurred, the pipeline depth was measured at 13 inches rather than 36. Further, there was also hearsay testimony from plaintiff Rodney Brown that, after the explosion, his son found the depth of the pipeline to be between 8 and 20 inches in that same area. Plaintiffs also allege that regulations required the trench to be a depth of 24 to 48 inches. However, defendants established that the regulations cited by plaintiffs were not the ones in effect in 1983.
The court does not see a question of fact with respect to Mr. Morrison. The only direct evidence of the depth of the trench in 1983 was Morrison's own testimony that it was three feet deep. Plaintiffs' claim that the pipeline was laid to the depth of the ditch and thus, because the [*3]pipe was only 13 inches deep, the ditch could only have been dug 13 inches deep. There is no factual support for this speculation. Whether or not Glenn Brown laid the pipe at the bottom of the trench has not been established. Further, whether the pipe migrated upwards over an 18 year period is unknowable. Finally, measuring the depth of the pipe almost 20 years after the trench was dug, and nearly two years after the explosion, does not seem material on the question of how deep the original trench was dug.
With respect to the motion to amend the bill of particulars, Morrison had no duty to check the gas line to insure it was empty, he had no duty to monitor the line or maintain the shut off valve or insure that the pipeline was installed properly. Therefore, the motion to amend the bill of particulars as to Morrison is denied, and Morrison's motion for summary judgment dismissing the complaint against him is granted. This determination makes it unnecessary to reach Morrison's alternative arguments seeking the same relief. Counsel for Morrison should submit an order on notice.
Great Lakes' Motion to Dismiss
Great Lakes also moves to dismiss on the grounds that it had nothing to do with the
pipeline at issue. Great Lakes' predecessor, Envirogas, drilled a well in 1984 and agreed that Glenn and June Brown could install a line from the well to their house at the Browns' own cost and risk. The agreement between the Browns and Envirogas further provided that the Browns were liable for injuries caused by their use of the gas. The Browns also agreed to indemnify Envirogas for any loss arising from the Browns making the connection to the well.
Great Lakes basically says, "What did we do?" They did not own the well when it was drilled in the early 1980's and they did not own it when Glenn Brown installed the pipeline in 1984 or 1985. Plaintiffs contend that Great Lakes is liable for this incident because its predecessor, Envirogas, had the right to terminate the landowner's connection to the wellhead if it believed there was a safety hazard. Further, Envirogas and Great Lakes had the duty to insure that any pipeline the Browns installed was safe and properly laid.
If liability is going to be extended to the degree plaintiffs seek, a court higher than this one will have to do so. Accepting plaintiffs' contention would mean that every gas company, or its successors years down the road, would be liable any time a landowner installs a gas line. No authority this court is aware of compels such a result and this court is disinclined to impose liability to such a degree.
Turning to the motion to amend the bill of particulars, Great Lakes had nothing to do with the gas line. Great Lakes did not shut the gas off and the Browns had contracted with Great Lakes' predecessor, Envirogas, for the Browns to assume the responsibility of installing and maintaining their own pipeline. The proposed amendments seek to impose duties on Great Lakes that the Browns assumed under the contract. Accordingly, the motion to amend the bill of particulars as to Great Lakes is denied, Great Lakes' motion to dismiss is granted, Great Lakes' motion for summary judgment against June Brown for indemnification is moot as is June Brown's motion to dismiss Great Lakes' indemnification claim against her. Submit order on notice. [*4]
Donald Beaver's Motion for Summary Judgment
On January 1, 2001, after the Browns' free gas expired, Dale Beaver shut off the gas to June Brown's house. William Morrison then went to the Brown residence, observed that the gas was shut off and the pilots were out, and switched June over to National Fuel by simply turning a valve. Other than the fact that Beaver Dairy Farm now owns the property on which the well is located, this is the only connection any of the Beavers had with the line in question.
Plaintiffs contend that there is a question of fact as to whether Dale Beaver properly shut off the gas on January 1, 2001 because a firefighter on the scene of the explosion claims that gas was escaping from the ruptured line and firefighters had to turn off the valve at the wellhead to stop the gas from escaping. Therefore, they claim that Dale Beaver could not have turned the valve off as he said he did ten months earlier.
However, Beaver testified that he shut the gas off. Further, William Morrison went to June Brown's residence on January 1, 2001, after Beaver had shut the gas off, and observed that the gas had been shut off and all the pilot lights were out. Morrison relit the pilot lights for June Brown. Ms. Brown corroborated these actions by Morrison and Beaver. Moreover, the records of Great Lakes show no gas used from the well by June Brown between December 2000 and October 2001 which indicates the gas was off. Therefore, the speculation that Beaver may have improperly shut off the gas is insufficient to raise a triable issue when three people have testified that the gas was in fact shut off ten months before the incident and the records corroborate that.
The proposed amendments to the bill of particulars are also not sustainable as to Beaver. The expiration of June Brown's gas rights did not impose a duty on Beaver to dig up the pipe and make sure it was empty or assume any of the other responsibilities plaintiffs seek to impose in the amended bill. Accordingly, the motion to supplement the bill of particulars as to Beaver is denied and Beaver's motion for summary judgment dismissing the complaint against him is granted. Submit order on notice.
Dated: Little Valley, New York
May 31, 2005
_________________________
HON. LARRY M. HIMELEIN
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