Page 16 - may-june 2018_Neat

Continued from page 15... idence of a leak The apartment
apartment complex cited to
evidence based on the gas
company technician’s three
service calls to the property,
including inspections and testing
which showed no evidence of
a gas leak Plaintiff opposed the
motion asserting questions of
disputed material fact existed
about whether the boilers were
unsafe due to emissions of gas
or aldehydes and whether a
“noxious odor from the boilers
caused her to become dizzy
and fall ” The apartment com-
plex countered these arguments
by stating plaintiff brought the
lawsuit based on allegations of
a gas leak and there was no ev-
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16
plex knew or should have known
complex also argued allegations a dangerous condition existed
about aldehydes or other boiler but failed to warn her or repair
issues were outside the scope the condition The Court again
of the claims in the lawsuit The disagreed noting the apartment
trial court agreed, granted the complex “was never on notice
summary judgment motion and of a natural gas leak;” the gas
entered a judgment in favor of company technician did multi-
the apartment complex Plaintiff ple inspections of the boilers and
appealed the decision did not find a gas leak and the
plumbing company serviced the
Appellate Court Decision. boilers to make sure they were
On appeal, plaintiff working and properly tuned In
urged the Court to consider affirming the trial court’s deci-
her argument that there was a sion, the Court determined no
“triable issue” on whether a dan- triable issue existed as to wheth-
gerous condition existed at the er the apartment complex had
apartment complex based on reason to know of a gas leak
evidence she offered of a “nox- that would have created a duty
ious odor” from the boilers in the to “either warn or repair the con-
weeks before her fall The Court dition ” The Court also awarded
disagreed the apartment complex its costs
stating to on appeal ***
establish a
triable issue The lawsuit discussed
as to a dan- above inferentially underscores
gerous condi- that maintaining proper and
tion, plaintiff complete service call, inspec-
“was required tion and repair records can go
to provide a long way in reducing expo-
evidence sure and litigation for propane
of a natural marketers in alleged gas-related
gas leak as incidents The case also illustrates
opposed to a that unfortunately, claims can
generic nox- be made in a lawsuit with little,
ious odor ” On if any viable basis for recovery,
the issue of again making proper documen-
duty, plaintiff tation of all service calls, inspec-
asserted there tions, and testing a vital part of
were material risk management efforts. ■
disputed facts
about wheth- [Kathryn A. (“Katy”) Regier is an attor-
ney with the Sandberg, Phoenix & von
er the apart- Gontard, P.C. law firm in its Kansas City,
MO office. She can be contacted at:
ment com- kregier@sandbergphoenix.com or (816)
Alabama Propane Gas Association | May / June 2018