dissenting:
I respectfully dissent. I believe that our analysis should begin and end with the tariff filed by NI-Gas and approved by the Illinois Commerce Commission. As a result, I do not think it necessary to reach the question whether the common law governing the duties of gas companies should be expanded to recognize a duty to warn of the risk that a connector neither owned nor installed by the company may deteriorate from exposure to the odorant that must, by law, be added to the natural gas delivered by NI-Gas to its customers.
The General Assembly enacted the Public Utilities Act (Act) in 1921. An Act concerning public utilities, 1921 Ill. Laws 702, approved June 29, 1921, eff. July 1, 1921. Then, as now, the policy of the state is expressed in the Act:
“It is therefore declared to be the policy of the State that public utilities shall continue to be regulated effectively and comprehensively. It is further declared that the goals and objectives of such regulation shall be to ensure (a) *** that:
(iv) tariff rates for the sale of various public utility services are authorized such that they accurately reflect the cost of delivering those services and allow the utilities to recover the total costs prudently and reasonably incurred[.]” 220 ILCS 5/1 — 102(a)(iv) (West 1994).
In return for the protections provided, the Act imposes certain duties upon the utilities it regulates:
“Every public utility shall furnish, provide and maintain such service instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees and public and as shall be in all respects adequate, efficient, just and reasonable.
All rules and regulations made by a public utility affecting or pertaining to its charges or service to the public shall be just and reasonable.
Every public utility shall, upon reasonable notice, furnish to all persons who may apply therefor and be reasonably entitled thereto, suitable facilities and service, without discrimination and without delay.” 220 ILCS 5/8— 101 (West 1994).
In addition, regarding the duties of public utilities to providing services and facilities, the Act requires that:
“Every public utility subject to this Act shall provide service and facilities which are in all respects adequate, efficient, reliable and environmentally safe and which, consistent with these obligations, constitute the least-cost means of meeting the utility’s service obligations.” 220 ILCS 5/8 — 401 (West 1994).
This court has long acknowledged that the “policy established by legislation for the regulation of public utilities is to provide the public with efficient service at a reasonable rate by compelling an established public utility occupying a given field to provide adequate service and at the same time to protect it from ruinous competition.” Illinois Power & Light Corp. v. Commerce Comm’n, 320 Ill. 427, 429-30 (1926). More recently, this court reiterated: “The Public Utilities Act [citation], under which the Commerce Commission regulates all public utilities, was enacted to assure the provision of efficient and adequate utility service to the public at a reasonable cost.” Local 777 v. Illinois Commerce Comm’n, 45 Ill. 2d 527, 535 (1970). See also Bloom Township High School v. Illinois Commerce Comm’n, 309 Ill. App. 3d 163, 175 (1999).
The Act requires the utility to file a tariff with the Illinois Commerce Commission. 220 ILCS 5/9 — 102 (West 1994). The tariff “plays an integral role” in allowing the utility to meet the expectations of the General Assembly. In re Illinois Bell Switching Station Litigation, 161 Ill. 2d 233, 244 (1994). The liability limitations contained in an approved tariff serve the public policies of establishing uniform affordable rates and providing universal service by hmiting the utility’s exposure to hability. Thus, although the tariff may be seen as stating the terms of the contract between the utility and its customers, it is more than a mere contract between buyer and seller. There is a third party to the transaction — the state, which as a matter of public policy has chosen to limit the liability of utilities in return for regulation of their rates. As this court has noted:
“ ‘ “The theory underlying [decisions upholding the right of regulated utilities to Emit their liabilities] is that a public utility, being strictly regulated in all operations with considerable curtailment of its rights and privileges, shall likewise be regulated and limited as to its liabilities. In consideration of its being peculiarly the subject of state control, ‘its liability is and should be defined and limited. [Citation.] There is nothing harsh or inequitable in upholding such a limitation of hability when it is thus considered that the rates as fixed by the commission are established with the rule of limitation in mind. Reasonable rates are in part dependent upon such a rule.” ’ ” Illinois Bell Switching Station, 161 Ill. 2d at 245-46, quoting Waters v. Pacific Telephone Co., 12 Cal. 3d 1, 7, 523 P.2d 1161, 1164, 114 Cal. Rptr. 753, 756 (1974), quoting Cole v. Pacific Telephone & Telegraph Co., 112 Cal. App. 2d 416, 419, 246 P.2d 686, 688 (1952).
The tariff limits liability by narrowly defining the duties undertaken by the utility and disclaiming any additional duties. The majority acknowledges our prior case law, which requires that any duty other than those specifically imposed upon the utility by the Act itself must be found in the tariff:
“Illinois courts have long held that a tariff provision such as the one at issue in this case provides the source for, and determines the nature and extent of, a public utility’s service obligations to its customers.” 211 Ill. 2d at 57-58, citing J. Meyer & Co. v. Illinois Bell Telephone Co., 88 Ill. App. 3d 53, 55 (1980), and Sarelas v. Illinois Bell Telephone Co., 42 Ill. App. 2d 372, 374-75 (1963).
See also Illinois Bell Switching Station, 161 Ill. 2d at 248 (Miller, J., specially concurring).
As the majority also acknowledges, Illinois law on the subject of tariffs has its roots in federal law, specifically, the federal “filed-rate doctrine.” 211 Ill. 2d at 56. Although this doctrine is no longer in effect in the federal courts (see Tempel Steel Corp. v. Landstar Inway Inc., 211 F.3d 1029, 1030 (7th Cir. 2000) (noting that the ICC Termination Act, 109 Stat. 803 (1995), abolished the tariff filing requirement and the filed-rate doctrine)), it is still a useful starting point for any analysis of the legal effect of a utility tariff filed and approved pursuant to state law.
In Western Union Telegraph Co. v. Esteve Brothers & Co., 256 U.S. 566, 65 L. Ed. 1094, 41 S. Ct. 584 (1921) (cited in 211 Ill. 2d at 57), the issue was whether the plaintiff/customer was “without assent in fact, bound as matter of law by the provision limiting liability, because it is a part of the lawfully established rate.” Esteve Brothers, 256 U.S. at 570, 65 L. Ed. at 1097, 41 S. Ct. at 586. The Court held that “limitation of liability was an inherent part of the rate. The company could no more depart from it than it could depart from the amount charged for the service rendered.” Esteve Brothers, 256 U.S. at 571, 65 L. Ed. at 1097, 41 S. Ct. at 586. As the majority notes, the federal act at issue in Esteve Brothers:
“introduced a new principle into the legal relations of the telegraph companies with their patrons which dominated and modified the principles previously governing them. Before the act the companies had a common law liability from which they might or might not extricate themselves according to views of policy prevailing in the several states. *** Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. The rate became, not as before a matter of contract by which a legal liability could be modified, but a matter of law by which a uniform liability was imposed.” Esteve Brothers, 256 U.S. at 571-72, 65 L. Ed. at 1097-98, 41 S. Ct. at 586.
Later, in Western Union Telegraph Co. v. Priester, 276 U.S. 252, 72 L. Ed. 555, 48 S. Ct. 234 (1928), the Court stated that once the Interstate Commerce Commission approved a tariff, the “established rates *** became the lawful rates and the attendant limitation of liability became the lawful condition upon which messages might be sent.” Priester, 276 U.S. at 259, 72 L. Ed. at 565, 48 S. Ct. at 235. “What had previously been a matter of common law liability, with such contractual restrictions as the states might permit, then became the subject of federal legislation to secure reasonable and just rates for all without undue preference or advantage to any. Since that end is attainable only by adherence to the approved rate *** that rate ‘represents the whole duty and the whole liability of the company.’ ” Priester, 276 U.S. at 259, 72 L. Ed. at 565, 48 S. Ct. at 235, quoting Esteve Brothers, 256 U.S. at 572, 65 L. Ed. at 1097, 41 S. Ct. at 586. In response to plaintiffs argument that the company’s tariff could not limit its liability for “gross negligence,” the Court concluded: “We may not disregard a lawful exercise of the regulatory power which has made no distinction between degrees of negligence, nor may we, upon any theory of public policy, annex to the rate as made conditions affecting its uniformity and equality.” Priester, 276 U.S. at 260, 72 L. Ed. at 565, 48 S. Ct. at 236.
More recently, the Court stated that the “ ‘rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier.’ ” (Emphasis added.) American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U.S. 214, 227, 141 L. Ed. 2d 222, 236, 118 S. Ct. 1956, 1965 (1998), quoting Keogh v. Chicago & Northwestern Ry. Co., 260 U.S. 156, 163, 67 L. Ed. 183, 187, 43 S. Ct. 47, 49 (1922). The majority quotes this language, but overlooks the significance of the mention of torts as well as contracts. 211 Ill. 2d at 56.
The General Assembly, by enacting the Public Utilities Act and creating the Illinois Commerce Commission with the power to approve tariffs filed by public utilities, has made clear the public policy of the State, which is to hold public utilities to those duties expressly set out in the Act and the approved tariffs, and to preclude the judicial recognition of additional duties on the basis of common law reasoning. Thus, the majority is correct that whether the tariff bars plaintiffs cause of action “depends on the nature of plaintiffs lawsuit and the meaning of the tariffs language.” 211 Ill. 2d at 62.
Nature of the Lawsuit
The majority correctly states that “ ‘all state law causes of action are not necessarily precluded’ ” by the existence of a filed and approved tariff. 211 Ill. 2d at 58, quoting Pink Dot, Inc. v. Teleport Communications Group, 89 Cal. App. 4th 407, 416, 107 Cal. Rptr. 2d 392, 398 (2001). The nature of a lawsuit may place it outside the scope of the tariffs limitation of liability provisions.
Thus, although Pink Dot acknowledged that Teleport’s liability for gross negligence was limited by the applicable tariff, Pink Dot argued that its claims against Teleport for breach of contract, fraud, willful misconduct, intentional interference with economic relations, and unfair competition were not barred. Pink Dot, 89 Cal. App. 4th at 412, 107 Cal. Rptr. 2d at 395. This argument was supported by a state statute providing that “ ‘All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of the law, whether willful or negligent, are against the public policy of the law.’ ” Pink Dot, 89 Cal. App. 4th at 413-14, 107 Cal. Rptr. 2d at 396, quoting Cal. Civ. Code § 1668 (1994). Further, the Teleport’s tariff was “silent as to the required liability for any willful misconduct, fraud, or violations of law,” although it did contain “clauses intended to limit [its] liability to its customers for damages caused by its conduct.” Pink Dot, 89 Cal. App. 4th at 414, 107 Cal. Rptr. 2d at 396-97. In the end, Pink Dot stands for the unremarkable proposition that when a state statute expressly precludes such a limit, a tariffs $10,000 limit on liability cannot “eliminate [the utility’s] liability for willful misconduct, fraud or violations of law by merely omitting the acknowledgment of such liability from its tariff.” Pink Dot, 89 Cal. App. 4th at 414, 107 Cal. Rptr. 2d at 397.
In Adamson v. Worldcom Communications, Inc., 190 Or. App. 215, 78 P.3d 577 (2003) (quoted in 211 Ill. 2d at 58), plaintiffs claim for unfair trade practices was not barred where the tariff limited the defendant’s liability “ ‘unless such damages are a result of Company’s willful misconduct.’ ” Adamson, 190 Or. App. at 222, 78 P.3d at 582.
The tariff at issue in the present case expressly states that NI-Gas “assumes no responsibility in connection with the installation, maintenance or operation” of the customer’s equipment. Flaintiff has not cited either a state statute (as in Pink Dot) or language of the tariff (as in Adamson) that precludes the limitation of liability claimed by NI-Gas. Nor has she brought a claim for fraud, negligent driving of a vehicle owned by the utility, or other tortious conduct of the sort that would place it outside the scope of the limitation of liability clause of the tariff. Thus, the duty claimed by plaintiff must be found to exist on the basis of the language of the tariff, or not at all.
Construction of the Tariff
The Act is in derogation of the common law. Illinois Bell Switching Station, 161 Ill. 2d at 240. The majority acknowledges that, as a result, the Act it is to be strictly construed in favor of persons sought to be subjected to its operation, that is, in favor of the utility. 211 Ill. 2d at 68-69. As the majority also notes, once the tariff is approved by the Commission, it has the force of law. 211 Ill. 2d at 56 (citing Illinois Bell Switching Station, 161 Ill. 2d at 244, and Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc., 67 Ill. App. 3d 435, 439 (1978) (stating that “[a] tariff is a law, not a contract, and has the force and effect of a statute”), affirmed, 78 Ill. 2d 56 (1979)). Further, the majority states that interpretation of the tariff is governed by the rules of statutory construction. 211 Ill. 2d at 55.
Nevertheless, the majority, citing cases from California, New York, and Georgia, states that the language of the tariff, especially any exculpatory language, should be strictly construed against the utility, based on the canon of construction of contracts that contract terms should be construed against the drafter. 211 Ill. 2d at 69. Although it may be “generally accepted” (211 Ill. 2d at 69) in some jurisdictions that a tariff should be construed as a mere contract, there is also contrary authority. The courts of Washington and Oregon, for example, apply the standard principles of statutory construction to the interpretation of a tariff, including applying the rule of construction that the court is to ascertain the drafters’ intent when they promulgated the language. See, e.g., National Union Insurance Co. v. Puget Sound Power & Light, 94 Wash. App. 163, 171, 972 P.2d 481, 484 (1999); U.S. West Communications, Inc. v. City of Longmont, 924 P.2d 1071, 1079 (Colo. App. 1995).
Even in a jurisdiction in which the “construe against the drafter” canon is applied to public utility tariffs, it has been said that “a strict construction against a tariffs author is not justified where the construction would ignore a permissible and reasonable construction which conforms to the intentions of the framers of the tariff.” Info Tel Communications, LLC v. US West Communications, Inc., 592 N.W.2d 880, 884 (Minn. App. 1999).
This court has never held that a public utility tariff should be construed against the utility that drafted the language. There are valid arguments to be made on both sides because the tariff has characteristics of both contract and statute. This court may in some future case be called upon to decide whether ambiguous language in a tariff should be construed in favor of or against the drafting utility. This is not such a case. The language at issue is unambiguous. NI-Gas “assumes no responsibility in connection with the installation, maintenance or operation” of the customer’s equipment. Our duty is to apply the plain meaning of these words, in light of the underlying purpose of the Act, which is to provide citizens of Illinois with utility service at reasonable rates and, as a necessary part of that scheme, to limit the liability of utility companies.
The majority also suggests that the tariff provision should not be given effect because, if it “were a private contract, it would not be interpreted as permitting NI-Gas to absolve itself of any duty to its customers.” 211 Ill. 2d at 68. This statement misses the point in several respects. First, it defies logic to say that a tariff should be enforced under the same rules as a private contract. The entire concept of a tariff is that it supercedes any contract between the utility and the individual customer. Indeed, the utility is forbidden from privately contracting around the terms of the tariff. Second, the Act and the tariff do not permit the utility to absolve itself of “any duty.” They permit, indeed they require, that the utility undertake precisely defined duties to its customers. Finally, unlike a private company, a public utility cannot adjust its prices to compensate for increased exposure to liability when the courts recognize a new common law duty.
For example, in Sarelas the plaintiff claimed that Illinois Bell Telephone owed him a duty of continuing service, which it violated by interrupting his service for 21/2 hours as the result of a clerical error. The appellate court noted that “in the case of an ordinary corporation this would be nothing of which to complain, for in general a corporation is entitled to refrain from doing business with its customers unless it is otherwise bound by contract; but a utility is different. It has a duty to its subscribers that goes beyond that of an ordinary corporation. However, this duty has but one source, the tariff, which in this instance is on file with the Illinois Commerce Commission.” (Emphasis added.) Sarelas, 42 Ill. App. 2d at 374. Thus, the court observed, “the extent to which defendants owed plaintiff ‘a legal duty’ is determined by the particular provisions of the tariff on file with the commission; there is no contract *** on which plaintiff can rely, nor are his allegations of a breach of duty sufficient to constitute a claim in tort.” Sarelas, 42 Ill. App. 2d at 375. In the end, a breach of duty by the utility “arises either from the tariff or not at all.” Sarelas, 42 Ill. App. 2d at 375.
Following the mandate to construe the Act strictly in favor of the regulated utility, the appellate court in Barthel v. Illinois Central Gulf R.R. Co., 74 Ill. 2d 213 (1978), held that section 73 of the Act, which allows the utility to be held liable for certain acts and omissions, did not abrogate the common law defense of contributory negligence because it did not plainly appear that the intent of the statute was to impose strict liability. Barthel, 74 Ill. 2d at 221. See also Tucker v. Illinois Power Co., 232 Ill. App. 3d 15, 29 (1992) (construing Act as not authorizing award of punitive damages in action for negligent termination of gas service in below freezing weather when plaintiff would not have been entitled to punitive damages under common law theory of liability).
The majority purports to apply the “exact reasoning” of Barthel (211 Ill. 2d at 70), when it concludes that just as the statute in Barthel did not abrogate a preexisting common law defense, the tariff at issue here “does not abrogate the common law exception.” 211 Ill. 2d at 70. Plaintiff, however, does not seek to hold NI-Gas liable under an existing exception to the common law rule that gas companies have no duty with regard to the fixtures and equipment of their customers. She seeks to expand the existing exception to recognize an entirely new duty to warn.
The majority observes that NI-Gas has had opportunities in the past to assert that the tariff precludes imposition of a duty, yet has not done so. 211 Ill. 2d at 55. This observation is not persuasive for two reasons. First, simple logic dictates that a party’s decision to raise a particular issue or assert a particular defense in one litigation has no preclusive effect in later litigation with an entirely different party. Second, the cases cited by the majority are inapposite. In Pioneer Hi-Bred Com Co. of Illinois v. Northern Illinois Gas Co., 61 Ill. 2d 6 (1975), the plaintiff’s theory of liability was that NI-Gas negligently performed an inspection. There was no leak or defect in the plaintiffs equipment. Rather, NI-Gas employees purportedly inspected plaintiffs equipment for the specific purpose of determining the proper pressure for the delivery of gas to the plaintiffs premises. Pioneer Hi-Bred, 61 Ill. 2d at 9. Previously, in Clare, this court had noted that a gas company has no duty to inspect the pipes or fixtures belonging to a customer in the absence of notice of a defect. Clare, 356 Ill. at 244. Indeed, the gas company has no right to “go upon the premises of one of its customers for the purpose of inspecting his pipes or other fixtures except upon the invitation, license or permission of the owner.” Clare, 356 Ill. at 244. In Pioneer Hi-Bred, as in Clare, a gas company employee was invited to enter the plaintiffs premises for the purpose of making an inspection. The inspections served different purposes: in Clare, to determine the source of an offensive odor; in Pioneer Hi-Bred, to calculate the proper pressure for the delivery of gas. In Clare, the gas company was not liable for the eventual damages and injuries because the evidence showed that the inspection, which was not “negligently or unskillfully made,” did not reveal the source of the leak. Clare, 356 Ill. at 245. In Pioneer Hi-Bred, the gas company might have been held liable for negligently conducting an inspection had the plaintiff proven that an inspection actually took place. Pioneer Hi-Bred, 61 Ill. 2d at 13-14. This court agreed with NI-Gas that the trial court properly refused to give the requested instruction on negligent inspection to the juiy, because the tendered instruction assumed a fact in dispute — that there had actually been an inspection. Pioneer Hi-Bred, 61 Ill. 2d at 13-14. The majority’s statement that “[n]either this court nor NI-Gas believed that this tariff precluded a common law analysis in a negligence action for personal injury” in Pioneer Hi-Bred (211 Ill. 2d at 59), although true, is irrelevant. The common law duty asserted in Pioneer Hi-Bred had already been recognized in Clare.
The majority also points to this court’s decision in Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446 (1965), as further support for its statement that “where a utility tariff speaks to a specific duty, the tariff may be controlling; however, where the tariff does not address a particular situation, the common law applies and a common law duty analysis must be applied.” (Emphasis added.) 211 Ill. 2d at 61. When a tariff speaks to a specific duty, as in this case, it is controlling. The majority asks why the appellate court failed to mention the tariff in this case. 211 Ill. 2d at 62. Metz involved an explosion that occurred as a result of a defect in the gas main, which is the responsibility of the gas company both under the tariff and at common law. Thus, the answer to the majority’s question is obvious — the tariff was irrelevant to the gas company’s alleged negligence to properly maintain its own equipment.
The majority is determined to ignore our obligation to determine whether NI-Gas has a duty to warn by looking at the plain language of the tariff, even if that plain meaning departs from the manner in which the common law may have developed in the decades since the Act was adopted and the tariff was approved, or the way in which we would decide the question today. I accept, arguendo, the majority’s statement that “it is evident that the tariff essentially codifies the common law rule that a gas company has no duty with respect to a consumer’s gas pipes and fittings.” 211 Ill. 2d at 63. Thus, I do not dispute the majority’s conclusion that the tariff “did not abrogate the common law exception to the rule of a gas company’s nonliability.” 211 Ill. 2d at 70. That exception, however, applies only when the gas company has actual or constructive knowledge of a gas leak or a defect on the premises of the individual customer.
NI-Gas had neither actual nor constructive notice of a gas leak in the Adams’ home. At most, NI-Gas was aware that some Cobra connectors might still be in use in its service area, and that these connectors could fail after prolonged exposure to the odorant that NI-Gas is required, by law, to add to natural gas. This does not constitute a “a gas leak of which it has notice.” 211 Ill. 2d at 65.
The majority even admits that recognizing a duty to warn on the facts of this case would not be based on the common law as it existed at the time the tariff was filed and approved some fifty years ago. It would, instead, be a “reasoned adaptation” of the preexisting common law. 211 Ill. 2d at 53. Our prior case law does not permit such “reasoned adaptation” of the common law when it would alter the terms of the applicable tariff.
The majority’s conclusion that “allowing this cause of action to proceed would not contravene” the public policy of this state regarding liability limitations contained in public utility tariffs (211 Ill. 2d at 63) is similarly flawed. Although plaintiff does not seek a rate preference or enforcement of a “side agreement,” she is seeking to impose liability in tort in excess of that permitted by the tariff. Exposure to liability in tort bears a direct relationship to rate setting. See Illinois Bell Switching Station, 161 Ill. 2d at 245.
Meyer is cited by the majority (211 Ill. 2d at 57-58) for the proposition that the tariff “provides the source for, and determines the nature and extent of, a public utility’s service obligations to its customers.” The Meyer plaintiffs installed an alarm system on their premises and connected it to the defendant’s equipment at a junction box located on a telephone pole. Burglars disconnected the alarm at the junction box and made off with hundreds of thousands of dollars worth of property from the plaintiffs’ warehouse. The issue on appeal was whether the defendant utility owed a duty to the plaintiffs “under the circumstances as alleged.” As in the present case, the circumstances in Meyer included a connection between the customer’s equipment and the utility’s equipment. That connection failed and plaintiffs suffered damages as a result. Citing Sarelas, the appellate court stated, “It has been established that the source of any duty of Illinois Bell, as a public utility, to its subscribers is only in the tariff as filed.” Meyer, 88 Ill. App. 3d at 55. The portions of the tariff dealing with customer-provided equipment and systems plainly stated that:
“ ‘[W]here such equipment or system is connected to Company facilities the responsibility of the Company shall be limited to the furnishing of facilities suitable for exchange telecommunications service or *** the Company shall not be responsible for (1) the through transmission of signals generated by the customer-provided equipment or system, or for the quality of, or defects in, such transmission ***.’ ” Meyer, 88 Ill. App. 3d at 55.
Thus, the appellate court found that the “plain language of this provision exculpates [the telephone company] from liability.” Meyer, 88 Ill. App. 3d at 55. The court affirmed the trial court’s dismissal of the complaint because “the tariff is the sole source of any duty owed by defendant to plaintiffs” and the plaintiffs had failed to establish a duty thereunder. Meyer, 88 Ill. App. 3d at 56.
Further, the Meyer court found “a reasonable basis for treating this public utility differently from private corporations and for limiting its liability to subscribers in the rendering of its service.” Meyer, 88 Ill. App. 3d at 57. The Act requires that all rates and charges imposed by a public utility be just and reasonable and, to achieve this end, such rates and charges are fixed by a state agency. “Without the limitations on liability set forth by the tariff, defendant would be uniquely vulnerable to claims based on signal transmission defects which may result from a variety of causes, adversely affecting its ability to fulfill the public need for reasonable telephone service charges. This would be particularly true of defects in the transmission of signals originating from customer-provided equipment over which the company could have little control.” (Emphases added.) Meyer, 88 Ill. App. 3d at 57.
In addition to Sarelas and Meyer, the majority also cites North River Insurance Co. v. Jones, 275 Ill. App. 3d 175 (1995) (211 Ill. 2d at 55), as a source for the definition of a tariff: “A tariff is a public document setting forth services being offered, rates and charges with respect to services and governing rules, regulations and practices relating to those services.” North River, 275 Ill. App. 3d at 185, citing Black’s Law Dictionary 1306 (5th ed. 1979). However, the majority fails to note the holding of North River. The tariff filed by the defendant utility, Illinois Bell Telephone, described the terms and conditions under which it would provide service, including the limitation of liability provision, which had been in effect for “the past 50 years.” North River, 275 Ill. App. 3d at 185. Once such a tariff is implemented, the court held, the utility is “forbidden from deviating from its terms. It is the filed tariff that defines the scope of duty owed by [the utility]. The source of any duty of [the utility], as a public utility to its subscribers, is only in the tariff as filed.” North River, 275 Ill. App. 3d at 185 (citing Meyer, 88 Ill. App. 3d at 55, and Sarelas, 42 Ill. App. 2d at 375).
Thus, I conclude that the appellate court in the present case originally reached the correct result when it concluded that Illinois Bell Switching was dispositive and held that NI-Gas owed no duty to plaintiffs decedent. The overwhelming weight of authority from both this court and our appellate court supports this result. Plaintiff has identified no language in the tariff or in the Act from which the duty she claims can be said to arise. Indeed, the plain language of the tariff expressly disclaims any such duty.
Even if the common law exception imposing a duty based on actual or constructive knowledge of a leak or defect in the customer’s equipment is deemed to be incorporated into the tariff, it cannot reasonably be said that the tariff also incorporates any change in the common law of duty that the courts of this state subsequently make. To do so would be to engage in bootstrapping of the most egregious kind. In effect, tariffs would not have the effect of statutes. Rather, they would become mere restatements of the common law, subject to change over time as the common law of negligence evolves. This is precisely the situation that the legislature sought to avoid.
The majority responds to this statement by citing Bush v. Squellati, 122 Ill. 2d 153 (1988), for the proposition that it is for the General Assembly, not this court, to abrogate NI-Gas’ common law duty. 211 Ill. 2d at 69. Bush is inapposite. The issue was whether the maternal grandparents of a child who was adopted by other relatives on the maternal side of the child’s birth family had standing to seek court-ordered visitation. This court found no statutory basis for standing and noted that it was for the legislature to “expand grandparental visitation rights.” Subsequent legislative efforts to do so have met with constitutional barriers. See Wickham v. Byrne, 199 Ill. 2d 309 (2002). Bush hardly offers support for the majority’s conclusion that the tariff does not already shield NI-Gas from liability under these facts.
Conclusion
The death of Janice Adams was tragic. It is a further tragedy that the entity likely to blame for the defect that caused her death is no longer in business. That unfortunate fact, however, is not a sufficient basis for this court to ignore the public policy of this state as expressed in the Act and the plain language of the tariff with regard to limits of liability.
In sum, this court should be guided by our holding in Illinois Bell Switching Station, 161 Ill. 2d at 244, that the exculpatory language in the tariff, which has been “accepted for decades by the General Assembly, is neither in contravention of the Act passed by that same body, the rules passed by the Commission (an agency of that body), nor against public policy.” The plain language of the tariff, which not only does not impose a duty to warn of hazards associated with pipes and fixtures installed and owned by the customer, but also expressly disclaims any such liability, should be given effect by this court. I would affirm the judgment of the circuit court, granting summary judgment in favor of the defendant, NI-Gas.
JUSTICES FITZGERALD and THOMAS join in this dissent.