Weeks v. Oklahoma Natural Gas Co.

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Weeks v. Oklahoma Natural Gas Co.
1983 OK CIV APP 56
676 P.2d 272
Case Number: 57972
Decided: 09/13/1983

DR. BOB L. AND KAREN F. WEEKS, ET AL., APPELLANTS,
v.
OKLAHOMA NATURAL GAS COMPANY, CLARK HEATING & AIR CONDITIONING, AND DR. RACHEL RODRIGUEZ, APPELLEES.

Appeal from the District Court of Oklahoma County; Raymond Naifeh, Trial Judge.

¶0 Action for damages by owners of destroyed or damaged buildings against gas company, heating company and adjoining property owner whose gas filled building exploded causing the loss. Trial court sustained defendants' demurrers to plaintiff's evidence. The latter appeal.

REVERSED AND REMANDED.

Tom E. Mullen, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellants Dr. Bob L. and Karen F. Weeks, St. Paul Fire & Marine Ins. Co., and U.S. Fidelity and Guaranty Co.
D. Lynn Babb, Oklahoma City, Okl., for appellee Oklahoma Natural Gas Co.; Pierce, Couch, Hendrickson, Johnston & Baysinger, Oklahoma City, of counsel.
Robert L. Huckaby, Chickasha, Okl., for appellee Clark Heating & Air Conditioning; Huckaby, Fleming, Frailey & Chaffin, Chickasha, of counsel.
Robert J. Boone, Oklahoma City, for appellee Dr. Rachel Rodriguez.

BRIGHTMIRE, Presiding Judge.

¶1 A big blast is what the folk in south Oklahoma City had on Saturday afternoon, November 10, 1979 - a natural gas explosion that leveled the clinic owned by Rachel Rodriguez, D.O., destroyed the building next door owned by Dr. Bob and Karen Weeks, and caused extensive damage to several other nearby structures. Miraculously, no one was killed or injured. This action against Oklahoma Natural Gas Company, Clark Heating & Air Conditioning and Dr. Rachel Rodriguez for property damage terminated when the trial court sustained a demurrer to plaintiff Weeks'

¶2 Two issues are raised for review, namely, should the defendants' demurrers have been overruled, and should the court have allowed the deposition of a certain expert witness to be admitted as evidence.

I

¶3 The facts which form the scenario spawning this lawsuit are to a large extent undisputed. What was thought to have been natural gas odorant was first noticed in defendant Rodriguez' clinic Tuesday afternoon, November 6, 1979. An employee, Wanda King, called ONG, reported the matter and was told it was too late in the day to get anyone out there and that King should "call back the next morning and they would set up a work order." The next morning the odor was considerably stronger. "[When] I arrived at work and opened the front screen," said King, "we could smell a heavy odor of gas. . . . I went down to Arrowhead Realty and used their phone to call ONG." This was about 0800 hours. An ONG person said someone would be "out by five." Alarmed, the employees called the local fire department, and its people responded immediately by coming to the premises and shutting off gas service at the meter and all gas-consuming equipment in the clinic. The fireman aired the building and left.

¶4 Later an ONG employee showed up at the clinic. "He came through the building," said King, "and he took some kind of meter or some type of machine to the gas meter which he said measured BTU's or something to check out the flow stream. Then he re-lit the heater and the water heater. And he said he found an intermittent gas leak in the valve of our heating system." At this time there was still an odor of what smelled like ONG's gas but the ONG man told King "it was not a gaseous odor [but] it was possibly a chemical fluid combined with the heat going through the return system of the heating unit that gave off a gaseous odor. [He] explained to us that gas did not have an odor . . . that it was something added to the gas." However, according to King, no chemicals had been used in the office at all.

¶5 The ONG person told King she needed to call someone to take care of the furnace valve problem and left.

¶6 King called defendant Clark and it sent out a man who checked the furnace and left saying he had to go get a part. In the meantime King became sick with a headache and left. When she returned Wednesday morning the building still reeked with the odor of ONG's gas. She had a headache all that day and again all day Thursday. Indeed, "the patients all commented on the odor as they came in," added King.

¶7 The odor seemed worse Friday morning so King again called ONG. "I was told," she said, "that they had a representative out and they determined it was a problem in our heating system so I needed to call a plumber or whoever handled our heating system." King did so. She again called Clark. It sent a man out. "He checked the pipes around the heater . . . went up in the attic with what he called a sudsy stuff to suds up the pipes and check for a leak there," explained King. Eventually he left saying that he had found no leak and that the odor was what was being retained in the carpet and furniture. This advice he gave notwithstanding the fact that King said the odor was stronger on Friday than it was on Thursday.

¶8 On Saturday the odor was even worse. Following up on what the Clark man had advised, King procured some carpet deodorant and scattered it on the carpet, opened the windows and turned the attic fan on. Yet, the gas odor persisted.

¶9 King was the last one to leave Saturday. She closed the windows and left at noon with the odor of ONG gas still present.

¶10 The ONG employee who had shown up the previous Tuesday was Walter Duggan, a 25 year ONG veteran. He said he never made any detailed notes concerning the disaster, yet he was able to testify two years later that he smelled a "faint" odor of gas at the front and "even less" in the interior of the clinic. He described in incredible detail how he set out, then, to check for leaks. He checked, he said, the entire premises, including the meter, the pipes from the meter to the building, except where covered with concrete, and the equipment inside the building - everything! It turned out, however, that he did not have an independent recollection of doing all the things he said he did - indeed, in a deposition taken four months earlier, he said he did not recall checking the gas lines on the outskirts of the parking lot - but was swearing that he actually did all the things he should have done because it was "standard [company] procedure" and "I go by the book." But, while on the one hand he said he checked all "down stream" lines - lines between the meter and their office termini - he admitted, on the otherhand, not checking gas lines that were in the attic.

¶11 Ultimately he discovered, he said, what he referred to as a "small intermittent leak" at the furnace when he turned its central heat gas valve on and advised the Rodriguez employees to have the valve fixed. Duggan left the gas on and departed.

¶12 Although Duggan made several other service calls that day just as he had done several times a day for some 20 years, and though he made no notes or other record of the details of the call, he was able at trial two years later to tell the jury in minute detail just what he did that morning which indeed was quite a bit for a 30 minute call. Among other things he used an explosimeter, he said, and checked all over the place and found no gas in the air and no movement of the meter's quarter cubic foot indicator during a 10 minute wait, suggesting that there was no movement of gas downstream from the meter.

¶13 An investigator for the Oklahoma City Fire Department, Thomas Morrow, testified he and his men investigated rather thoroughly but were unable to determine the source of the leak, although they decided the refrigerator off-on cycling furnished the ignition spark. The following week, Morrow was instructed to go to the clinic site to meet Archie Broodo, a Dallas engineer hired by Dr. Rodriguez. Morrow went to the scene where he found Broodo with a front-end loader and a plumber. After going through some debris with Broodo, Morrow said they suddenly "found a pipe we thought was broken. I looked at it. It had rust on it. It had cracked but I didn't feel that this pipe was significant in the explosion. The crack wasn't large enough to allow the amount of gas to escape. Didn't seem to be. He [Broodo] said he would take it to Dallas to have it analyzed. That is where his laboratory is."

¶14 After indicating that the pipe was in the courtroom, Morrow continued, "This is three-quarter inch pipe. Actually what brought it to our attention - I have no idea who found it - but, they picked it up and said look at this pipe it blown [sic], its broken, its bent but the baseboard is still intact on the pipe. I looked at that and noticed something else amiss. The cap had been taken off the pipe. I examined the threads and found that it had been taken off not by the explosion. There is no damage to the threads."

¶15 Upon finding this Morrow said, "I immediately became suspicious of more or less an incendiary fire," that is, a case of arson. They checked a similarly designed house next door and found a like pipe stubbed through the kitchen wall. They returned to the Rodriguez site, dug some more, and came up with a one-half inch galvanized cap which Morrow theorized had been on a nipple inserted in a three-quarter inch to half inch reducer.

¶16 Morrow said he "took possession of the evidence at that time and immediately left the scene." Under these circumstances and with no more evidence than finding, as Morrow put it, "this pipe in the vicinity of the blast in conjunction with what was supposedly the ignition source being the refrigerator, I made a determination that this fire was definitely incendiary in origin. This explosion. And at that time I started conducting a criminal investigation - "an investigation that, incidentally, never turned up any evidence or motive to support the suspicion.

¶17 Adhering steadfastly to such a conclusion in the face of other circumstances Morrow had become familiar with - particularly the fact that gas had been escaping for several days - was even more incredible than leaping to it in the first place. The theory was premised on two rather unlikely assumptions, namely, (1) that there was no persistent leak between Wednesday and Saturday morning because ONG said they could find none, and (2) the clinic filled with gas Saturday afternoon after someone removed a one-half inch cap from a three-quarter inch pipe thought to have been stubbed through the wall in the clinic laboratory area. There is yet a third assumption - that the pipe Morrow "found" was a gas pipe - and a fourth one that the pipe and cap Morrow rests his opinion on were on the premises at the time of the explosion.

¶18 Finally, plaintiff offered the deposition testimony of Archie Broodo. Rodriguez' counsel objected for the reason Broodo had earlier been in town and could have been placed on the stand in person. Defendants Clark and ONG joined in the objection. From the argument that ensued it appears the matter had previously been discussed in chambers and the judge had indicated a disinclination to permit the evidence to be adduced. Later the trial judge commented on the Broodo testimony as reported by ONG in a brief it had earlier submitted to the court. ONG, said the judge, had said that Broodo did not agree with Morrow's arson theory, but thought the explosion could have been caused by the ignition of gas escaping from "a small crack which he found in the pipe elbow attached to piping leading to central heating unit and located within the attic of Dr. Rodriguez' building." After referring to some other conclusions and speculations of Broodo, the court said this: "I don't know reading a hundred and fifty-two pages of a deposition that was not even qualified for trial in the first place would be of any benefit to the plaintiffs."

¶19 Plaintiff's counsel said he was willing to limit what he would read to 24 pages. The lawyer also informed the judge that the deposition contained this very cogent evidence:

¶20 "In your opinion," said the examining lawyer to Broodo, "based on your education, background and training was plaintiff's exhibit number twelve, that is the piece of pipe, leaking gas?"

¶21 "Yes," answered Broodo.

¶22 "Should somebody called out to find that leak have discovered the leak . . .?"

¶23 "Yes."

¶24 "Could the leak . . . vary in the amount of gas that is coming out . . . due to temperature changes or weather conditions?"

¶25 "Yes."

¶26 "Would you explain that, please?"

¶27 "If there was a leak because of a small crack in the thread grove on that pipe and the weather fluctuated over forty or fifty degrees as it sometimes does at that time of the year we get very warm. Some pretty days and very cool at night. And the metal up in the attic would be expanding and contracting. And if you assume a uniform pressure which isn't necessarily true of course in the line there then the expansion and contraction would allow more or less of an orifice of gas to leak through."

¶28 Eventually the trial judge decided to read the deposition before passing on the admission of the crucial, cogent and vital evidence it contained.

¶29 "Well, I suppose I had better read the deposition," said the judge. "It still goes back to - I am going further with you than I think I really need to. But, I am trying to get to the truth of this whole situation if we can. It is your case. But, it still all gets back to you having Broodo here on Monday afternoon and didn't put him on. The court feels you had an opportunity to do that. You called two local witnesses instead of putting him on. I just feel like you waived it. I will take a look at the deposition and see if this has any merit to it."

¶30 At this point plaintiff made a record explaining, first of all, the trouble he had serving a subpoena on Broodo upon his arrival in Oklahoma City. Eventually he was served but he failed to show up in the courtroom. There was a question about whether he was in the courthouse at one point. Defendants said he was and that plaintiff knew where he was but plaintiff denied this and said he continued to present his case hoping to find Broodo later in the day. Apparently Broodo left for Dallas, Texas, that evening without saying good-by and as a result plaintiff wanted to read his deposition. Defendants objected on the ground he waived his right to adduce the deposition evidence because he failed to put Broodo on the stand earlier.

¶31 The next morning the judge ascended the bench and said, "Good morning. Have a seat, please. All right. On this issue of whether or not Dr. Broodo's deposition should be read to the jury I will sustain the objections of the defendants. . . ."

¶32 Not long after this the trial judge sustained the demurrer of each defendant on the ground that plaintiff had failed to adduce sufficient evidence to support a finding that any of the defendants breached any duty owing plaintiff which culminated in or contributed to the destructive explosion.

II

¶33 While the ultimate questions to be resolved here concern the propriety of sustaining the demurrer of each defendant, the problem will be facilitated by first considering plaintiff's second contention - that rejection of witness Broodo's deposition was erroneous.

¶34 We hold the plaintiff should have been permitted to read the deposition.

¶35 As appears from the court's statement, he reasoned that although Broodo was out of the state when his deposition was offered the plaintiff forfeited his right to introduce the evidence because the deponent had allegedly been in Oklahoma City for a short time the first day of trial. "But . . . you didn't put him on. . . . I just feel like you waived it -" the right to offer the deposition.

¶36 We are unable to understand how plaintiff, by giving his trial strategy obligations priority over the personal interests of an expert witness, who may or may not have been available in person, somehow forfeited his statutory rights to place the expert's deposition in evidence.

¶37 The fact is plaintiff actually had three statutory grounds for the introduction of the deposition and they are spelled out in 12 O.S.Supp. 1979 § 433 . Specifically a party may use the deposition of a witness when (1) "the witness does not reside in the county where the action . . . is pending, or . . ." being tried; (2) the witness is absent from such county, or (3) "such witness is an expert witness."

III

¶38 We turn now to the demurrer issues and begin with plaintiff's action against ONG. The first thing we need to do is define the duty which ONG owed plaintiff under the circumstances and then analyze the evidence for the purpose of determining whether the duty was shown to have been breached causing harm to the plaintiff.

¶39 In its essential aspects the factual situation in Oklahoma Natural Gas Co. v. Appel, Okl., 266 P.2d 442 (1953), is remarkably similar to the one we have here. The Appels had reported the odor of natural gas in their home to ONG on several occasions in November and December 1947. Each time an ONG serviceman would come to the house, investigate, and advise the Appels that "everything was alright." Following an explosion January 5, 1948, the Appels sued ONG charging it with responsibility for the blast in failing to ascertain that natural gas was escaping and to shut the gas off until the leak was found and stopped. ONG defensively contended (1) the explosion was not caused by natural gas, or if it was; (2) the gas was from stove burners, the valves of which were opened by some unknown person. ONG adduced evidence that a postexplosion examination of the house by a plumbing company, which included a 24 hour pressure test, resulted in finding no leaks.

¶40 However, before moving back into the house the Appels had their own plumber check it out. He found a small leak in the kitchen stove and replaced the valves. He stated such leak could have easily been discovered by a competent serviceman.

¶41 In holding that the Appel court properly rejected ONG's motion for a directed verdict, the high court reaffirmed its long-standing duty concept that "[g]as being an extraordinarily dangerous element, an extraordinarily high degree of skill and care is exacted. . . ." More specifically the court explained that a "gas company having knowledge that gas is escaping in a building occupied by one of its customers is under a duty to shut off the gas supply until necessary repairs have been made, or to remedy the defect itself as quickly as is practicably possible, even though the defective pipe or apparatus does not belong to the company and is not in its charge or custody, and if the company sends an employee to ascertain the defect or the location of the leak and to make repairs, it will be liable for any injury resulting from the negligence of the employee."

¶42 Breach of this duty can, of course, be proved by either direct or circumstantial evidence. And if circumstantial evidence supports more than one theory as to the cause of the escaping gas the jury must be permitted to adopt the theory which in their judgment is the more plausible. Oklahoma Natural Gas Co. v. Jopling, 121 Okl. 10, 247 P. 69 (1925). The duties imposed on the gas company extended to all persons exposed to the risk of harm by a breach.

¶43 The circumstantial evidence presented by plaintiff - even without the excluded expert testimony - was sufficient for the jury to find that before the November 10th explosion natural gas was escaping on the Rodriguez premises from a cause or source not arson-related and that ONG failed to use an extraordinarily high degree of skill and care to discover the source of the gas and, of course, breached its duty to shut off the gas until the escape was arrested. At risk was not only the Rodriguez building and the lives of its occupants but all persons and property in the general vicinity.

IV

¶44 Next we consider the question of whether plaintiff made a submissible case against the heating company.

¶45 Once the heating company undertook to discover and check the escape of natural gas the same legal duty devolved on it that rested on ONG.

¶46 Plaintiff's evidence was sufficient to warrant the jury in finding that the heating company representative shirked a duty to find and stop the leak or else turn the gas off until the leak was found and arrested.

V

¶47 Finally we come to the problem of Rodriguez' liability for her neighbors' damage.

VI

¶48 For the reasons given the judgment of the trial court is reversed and the cause is remanded for a new trial.

¶49 STUBBLEFIELD, J., concurs.

¶50 De MIER, J., concurs in result.

Footnotes:

1 Several property owners' separate lawsuits were consolidated for trial under the name of plaintiff Weeks.

2 When we refer to the odor of ONG gas we the reader should consider that we do so with the following fact in mind. Natural gas is odorless. ONG, according to the evidence, odorizes its gas at various strength levels with mercaptan. Apparently it has done so, at least periodically, for years and thus ONG gas has acquired a distinctive odor recognizable by its users.

3 The service call ticket he turned in that morning showed he had spent 30 minutes at the Rodriguez location. At trial, however, he said he spent an hour and a half there.

4 Of course, were she a tenant she would not be liable to the landlord if the action were for the enforcement of subrogation rights by or for the benefit of the landlord's insurance carrier. Sutton v. Jondahl, Okl.App., 532 P.2d 478 (1975).