Page 17 - nov-dec2017.indd

so that the products of defendants failed to perform
combustion did not end up in
the living space. Plaintiffs also
asserted that the notice to
tenants about the high levels
of carbon monoxide stated
that tenants should keep the
bi-fold doors of the closets
open when running the clothes
dryer - again the inference is
that defendants knew there
were issues with the heating
system installation, location
and design that increased
the risk of carbon monoxide
exposure. Plaintiffs also alleged
that it was known to certain
defendants that there would
be diffi culty in accessing an
opening in the bottom of the
water heater, called the “fl ame
arrestor,” to clean it, and that
a known propensity existed for
the opening to clog, especially
if the water heater was near a
clothes dryer. Plaintiffs further
asserted that if that opening in
the water heater clogged then
there is not enough “clean air”
for proper combustion which
could lead to such high levels
of carbon monoxide that the
exhaust/ventilation system
would be “overwhelmed” and
carbon monoxide could fl ow
out the top of the water heater
and into the living space.
Plaintiffs’ liability theories
also included that defendants
took no action, or no
appropriate action to protect
tenants or other occupants in
the apartment units. Moreover,
Plaintiffs asserted that certain
specifi c allegations against the
a reasonable inspection of
the heating system after
determining the water
heater was leaking carbon
monoxide into the unit; failed
to confi rm that the carbon
monoxide detectors were
properly installed; and failed to
maintain the heating system in
a reasonably safe condition.
The Appeal.
As noted above,
the appeal in this matter
involved the POA, not the
gas company. The POA fi led
a summary judgment motion
asserting it did not have a
duty of care with respect
to several issues which the
district court granted. Plaintiffs
appealed the decision. The
Idaho Supreme Court agreed
that the POA did not owe
a duty of care based on a
premises liability theory but that
a jury would need to address
material issues of fact on
other duty and liability issues.
Accordingly, the POA and the
president of the POA remain in
the litigation as defendants. *** at: kregier@sandbergphoenix.com or
Lawsuits arising out of
incidents where plaintiffs
allege defendants knew
there was a risk of harm, had
a duty to act to prevent the
harm, but failed to properly
do so, often involve sorting
out complex responsibility and
duty issues. The decision and
Complaint referenced above
do not contain details as to the
gas company. By inference
though, one allegation may be
that the gas company failed
to perform adequate carbon
monoxide testing in the subject
unit when it determined the
levels were normal prior to
the incident. However, it is
clear from the Complaint
that the allegations against
all defendants included that
defendants were aware of the
risk of deadly levels of carbon
monoxide exposure and either
took no action, or insuffi cient
action to protect the
occupants of unit. Regardless,
this case underscores the need
for gas companies and their
employees to carefully and
consistently follow all training
and procedures as far as gas-
fueled appliances in heating
systems.
At the end of the day, the
goals are simple: safety and
security. ~Jodi Rell■
[Kathryn A. (“Katy”) Regier is an
attorney with the Sandberg, Phoenix &
von Gontard, P.C. law fi rm in its Kansas
City, MO offi ce. She can be contacted
(816) 425-9683.]
17