Weiss v. Thomas & Thomas Development Co.

Pfeifer, J.

The tragic facts of this case are not in dispute. Nelson Weiss was killed when his house exploded on March 21, 1991. The issue before us is whether the grants of summary judgment in favor of all defendants were proper. *277We conclude that the grant of summary judgment in favor of Dry Hole was improper because Dry Hole owed Weiss a duty of due care. We find that the duty owed is a high one because of the dangerousness of the commodity and the industry-known hazards associated with dirty gas. We conclude that the grants of summary judgment in favor of Thomas & Thomas, Leahey, and Gempel were proper. Accordingly, we reverse in part, affirm in part, and remand the cause to the trial court.

“It is a matter of common knowledge that although gas is a highly useful commodity it is also a dangerous commodity with a marked tendency to escape from its proper confines.” Suiter v. Ohio Valley Gas Co. (1967), 10 Ohio St.2d 77, 78, 39 O.O.2d 65, 66, 225 N.E.2d 792, 793. In fact, almost since the inception of natural gas usage, this court has been called upon to adjudicate matters involving explosions caused by escaping natural gas. See Ohio Gas-Fuel Co. v. Andrews (1893), 50 Ohio St. 695, 35 N.E. 1059; Cent. Ohio Natural Gas & Fuel Co. v. Capital City Dairy Co. (1899), 60 Ohio St. 96, 53 N.E. 711; St. Marys Gas Co. v. Brodbeck (1926), 114 Ohio St. 423, 151 N.E. 323.

This court has held:

“By reason of the highly dangerous character of gas and its tendency to escape, a gas company must use a degree of care, to prevent the escape of gas from its pipes, commensurate with the danger, and if it fails to exercise this degree of care and injury results therefrom, the company is liable, provided the person suffering the injury either in person or in property is free from contributory negligence; and whether, under all the circumstances of a case, a defendant gas company has used such degree of care is a question to be submitted to the jury * * *.” Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo (1933), 126 Ohio St. 140, 184 N.E. 512, paragraph four of the syllabus.

The Northwestern opinion did not distinguish between a public gas company and a non-public gas company and we see no reason to do so at this time. The law of this state is that gas companies owe a duty of care to prevent the escape of gas, commensurate with the dangerousness of the situation. Gas companies are not liable for the escape of gas in strict liability as the court of appeals correctly noted. See Northwestern, 126 Ohio St. at 153,184 N.E. at 517 (it is plain that the gas company was not an insurer against any and all damage). However, given the deadliness of natural gas and the dire consequences its escape so often engenders, due care is a very high standard indeed.

As this court has noted, “The bare fact of explosion and resulting fire would not suffice to establish a dereliction of duty on the part of the gas company. Facts and circumstances must be shown which indicate a want of ordinary care on the part of the gas company, proximately causing the injury, or evidence of facts from which such want of due care might be inferred.” Northwestern, 126 Ohio St. at *278153, 184 N.E. at 517-518. In reviewing the record, we find ample evidence from which to infer “want of due care.” For example, Dry Hole did not inspect the gas delivery system during or after installation, Dry Hole did not warn Brickner or Weiss of the dangers associated with dirty gas, and Dry Hole did not clean its gas.

Given the case law of this state and the facts before us, we can only conclude that Dry Hole owed a duty of due care to Weiss. We reach this conclusion without expanding the law of gas company liability beyond what it has been for years. Gas companies must exercise due care commensurate with the dangerousness of their product.

Thus, the issue becomes, as it did in Suiter, one “of the degree of care imposed upon a gas company considering the facts at hand,” Suiter, 10 Ohio St.2d at 79, 39 O.O.2d at 66, 225 N.E.2d at 794, and that is inherently a question for the finder of fact. Accordingly, we reverse the portion of the decision of the court of appeals that affirms the grant of summary judgment in favor of defendant Dry Hole and remand the cause to the trial court for further proceedings.

As to the grants of summary judgment in favor of defendants Thomas & Thomas, Leahey, and Gempel, we conclude that the court of appeals properly affirmed the decisions of the trial court. We find no error in the conclusion that there were no genuine issues as to material facts. Neither did the court of appeals err in applying the law before it. Accordingly, we affirm the portion of the decision of the court of appeals that affirms the grants of summary judgment in favor of defendants Thomas & Thomas, Leahey, and Gempel.

Judgment affirmed in part, reversed in part and cause remanded.

Resnick, J., concurs. Douglas and F.E. Sweeney, JJ., concur in part and dissent in part. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.