February 7, 2011
By Brienne Wesolek
Howrey LLP
A jury awarded plaintiffs Michael Sean Huitt, an experienced plumber, and Matt Nino, a plumber’s assistant, each more than $1 million in compensatory damages and $5 million in punitive damages against Southern California Gas Co. for injuries they sustained while attempting to light a water heater at a construction site owned by the Porterville Unified School District.
Federal regulations require that odorant be added to natural gas, which is colorless and odorless in its natural state, so that it is detectable by a person with a normal sense of smell. 49 CFR §192.625 (a).
It was undisputed that the natural gas supplied by the gas company was properly odorized. However, plaintiffs could not smell the gas because of “odor fade” – the odorant had been absorbed by the new steel gas pipes installed at the school.
Therefore, after initial attempts to light the water heater’s pilot light were unsuccessful, Huitt decided to bleed what he believed was air in the natural gas pipe. He thought the gas pipe still was under air test pressure, meaning the test air needed to be bled out until he could smell natural gas, which would fuel the pilot light and water heater. In fact, the pipe was filled with natural gas that had become odorless. When Huitt bled the pipe, the natural gas accumulated in the water heater closet where he and Nino were working. When Huitt again tried to light the pilot light, the accumulated natural gas exploded, badly burning him and Nino.
Evidence at trial showed that new steel gas pipes absorb the odorant until they become seasoned or saturated with odorant. Huitt testified that at the time of the accident, he did not know that the odorant in natural gas could fade.
A mechanical engineer who testified for plaintiffs stated that he had not heard of odor fade before this case but found a reference to it in the manual for the water heater. He testified that he spoke with others in the field about odor fade, and none of them had heard of it. But, he discovered information about it when he researched the issue on the Internet.
Another mechanical engineer, who specialized in plumbing engineering and had published more than 40 articles in plumbing publications, testified that in his 60 years of work in the plumbing field, he had never heard of odor fade until this case. He said he raised the issue at meetings of the Los Angeles chapters of the American Society of Plumbing Engineers and of the International Association of Plumbing and Mechanical Officials. No one at either meeting had heard of odor fade, including a representative of the gas company.
An engineer for the gas company described how new gas transmission pipes are pickled in odorant so they do not absorb odorant when put into use in transmitting gas. He testified this was the first instance he had seen of a customer’s pipes absorbing the odorant in natural gas.
The California Court of Appeal reversed the judgment entered on the jury’s verdict and directed the trial court to enter judgment in favor of the gas company. Huitt v. Southern California Gas Co., 188 Cal.App.4th 1586 (2010).
On appeal, the plaintiffs argued that the gas company had a duty to warn them that new pipes absorb the odorant in natural gas and that if they had known this, they would not have bled the gas pipe into the confined closet. The gas company denied that it had such a duty and denied that any failure to warn had caused the injuries.
Under California law, plaintiffs had the burden of proving that the gas company’s failure to issue a warning about the propensity of new steel pipes to adsorb the odorant in natural gas was a substantial factor in causing harm to them.
The appeals court held there was no evidence that if the gas company had issued a warning, the plaintiffs would have been aware of it. Because of this, the appeals court held, plaintiffs had not proved the gas company’s failure to warn caused their injuries. This precluded a recovery by them.
The appeals court wrote that plaintiffs’ arguments confused knowledge with causation. Although the plaintiffs presented evidence that allowed the jury to use hindsight to conclude that plaintiffs would have acted differently had they known of the possibility of odor fade, the court held that “mere knowledge is not enough to establish causation because it ignores the lack of evidence that any warning issued would have reached plaintiffs.” A warning that never reached the plaintiffs would not have changed events that occurred, the appeals court wrote.
A defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings, the court wrote. The appeals court noted that plaintiffs did not introduce evidence at trial showing how a warning could have been issued and received by them. It noted, for example, that the water heater the plaintiffs were attempting to light had a label on it advising plaintiffs to read the installation manual and that the installation manual warned of the possibility of odor fade.
The appeals court acknowledged that odor fade is a potentially dangerous phenomenon that is not well known in the construction industry and that efforts should be made to inform people in the industry about it. The appeals court encouraged the gas company and others in the industry to educate those working with gas appliances about the phenomenon of odor fade.
SOURCE: http://www.constructionweblinks.com/Resources/Industry_Reports__Newsletters/20110207/plum.html
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