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Aria v. American Standard, Inc.

A-5243-02T2 (N.J. Super. App. Div. 2004) (Unpublished)

LIABILITY; UTILITY COMPANIES—Although a utility company has the obligation to warn homeowners of hazards discovered during inspections of equipment within the home, a utility company is not liable for resulting damage if a subsequent inspection by others shows that the hazardous condition has been remedied.

A homeowning couple claimed injury from exposure to unsafe levels of carbon monoxide in their newly constructed home. They sued various entities involved with the construction, the home’s heating system, and the home’s supply of natural gas. The lower court dismissed the claim against the furnace maker because there was no proof that the furnaces were defective or contributed to any carbon monoxide poisoning. It also dismissed the claims against the gas company because, even if there were a duty to warn the homeowners of carbon monoxide in the house, no expert testified as to a causal connection between any breach and the carbon monoxide in the house. Lastly, it dismissed the claims against the contractor and its subcontractors because the homeowners’ experts’ reports contained clear hypothesis and were not based on any evidence of a condition found within the home during the period of alleged exposure.

The Appellate Division held that the lower court had properly dismissed the claim against the furnace maker because there was no evidence of any defect in the furnace. The homeowners had removed the furnaces before their expert tested the house for carbon monoxide. Therefore, because the furnaces were not tested, there was no evidence that the furnaces ever produced the carbon monoxide in the home. The owners argued that they still had a “failure to warn” cause of action against the furnace maker. Even though the furnaces had a warning label reading that, “improper installation, adjustment, alteration, service or maintenance can cause injury or property damage,” the owners criticized the fact that the risk of carbon monoxide was not explicitly mentioned. The Court rejected that argument, holding that it would have been impractical to list all of the specific problems that could result from various improper uses of the furnace. It also held that even if it assumed the warning was insufficient, there was no evidence that carbon monoxide ever leaked from the furnaces.

The Court also upheld the lower court’s dismissal of the claim against the gas company even while noting that the lower court’s statement that “the gas company owed no duty to the owners” was not entirely correct. The gas company could have been held responsible if its representatives acted negligently when responding to any gas-related situation. In this case, however, the owners were alleging that the gas company had a duty to re-inspect the flue connecting the furnace to the chimney because the gas company had found it to be unsealed before the owners first occupied the premises. The gas company agreed that it was its normal practice to advise homeowners of unsafe conditions found in an inspection. The company also admitted that in this case it should have warned the owners and failed to do so. However, the record indicated that after the builder’s had finished construction on the house, the local building code inspector performed a final home inspection and found the equipment to have been installed in accordance with all applicable building codes. Thus, there appeared to have been no harm caused by the gas company’s failure to warn. Furthermore, the Court held that where a regulated entity, like a gas company, is charged with negligence, an expert’s testimony is essential. None of the owners’ experts asserted that the gas company’s conduct caused or contributed to the present of or caused carbon monoxide in the house or to any alleged harm to the owners.

Finally, the Appellate Division held that the complaint against the contractors was properly dismissed because the owners failed to prove that any acts by the contractors caused unsafe levels of carbon monoxide to be released into the home. The owners contended that carbon monoxide entered their home because the contractors failed to install the required metal flue liners and their masonry work had cracks and openings which could have facilitated carbon monoxide entry into a flue that vented into their home. The owners further claimed that the chimneys were too short, and allowed a downdraft to drive carbon monoxide sitting in the chimneys to vent into the home through the fireplaces. Finally, the owners asserted that due to the multiplicity of vents in the home, there was inadequate intake air, and this caused the house to depressurize and literally “suck” flue gases back into the chimney into the home.

The Court noted that there may have been evidence indicating that carbon monoxide had been in the home at some time. However, it held the owners failed to prove whether, as a result of the contractor’s negligence, there was a dangerous amount present. The expert retained by the owners before the removal of the furnaces and the venting system did not test the home for carbon monoxide, even though he had the capacity to do so. Therefore, there was no proof of the amount of carbon monoxide, if any, that had entered the house through the furnaces or the water heaters or as a result of the alleged improper construction of the masonry flue.

The Appellate Division held that, without more definitive test results, a lower court could not allow a jury to speculate as to whether any of the defendants were responsible for exposing the owners to carbon monoxide. Therefore, it held that the lower court properly granted summary judgment in favor of the furnace maker, the gas company, and the contractors.

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