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FIRST DIVISION

August 26, 2002

OPINION MODIFIED UPON DENIAL OF REHEARING

JUSTICE COUSINS delivered the opinion of the court:

On December 7, 1995, Janice Adams died as a result of anexplosion and fire at her home in Calumet City, Illinois. Christy Adams (plaintiff), as special administrator of the estateof Janice Adams, deceased, filed a wrongful death suit againstLucia Georgevich and Northern Illinois Gas Company (NI-Gas). OnSeptember 13, 2000, the trial court granted summary judgment infavor of NI-Gas and deemed Georgevich's motion for summaryjudgment moot. On December 22, 2000, the trial court deniedAdams' motion to reconsider. On January 18, 2001, the trialcourt also denied plaintiff's motion to take evidence depositionsto preserve testimony. Adams presents the following issues forreview on appeal: (1) whether the trial court erred in grantingsummary judgment in favor of NI-Gas; and (2) whether the trialcourt abused its discretion in denying plaintiff's motion toperpetuate testimony.

BACKGROUND

Janice Adams was a 48-year-old mother of two when she diedon December 7, 1995, as a result of a natural gas explosion andfire at her home. Christy Adams, as special administrator of theestate of Janice Adams, deceased, originally filed a wrongfuldeath action against the homeowner, Lucia Georgevich, and lateradded NI-Gas.

Assistant chief of the Calumet City fire department Dan A.Smits stated in his pretrial deposition that he believed that thefire originated at the home as a result of an explosion involvingnatural gas. He further opined that the location of the gas flowwas the "Cobra" gas connector.

Cobra is a brand-name corrugated metal connector that wasproduced between 1955 and 1965 by a Chicago-based manufacturerthat is no longer in business. It is undisputed that, in itsoriginal state, natural gas is odorless. By law, NI-Gas isrequired to supply odorized gas to its customers as a detectionmethod.

Wayne Genck, a consultant on matters involving natural gasconnectors, testified at deposition that the sulfur added tonatural gas and phosphorous metal in flexible connectors have areaction that produces a "corrosion product."

Plaintiff's expert, accident investigator Charles Lamar,testified that the source of the natural gas leak at the Adams'home was the failure of the flexible connector that connected theback of the range to the house piping, called the Cobra. Hefurther testified that there was no failure in the NI-Gasfacilities or the gas meter that led to the explosion. Lamarnoted that phosphorus brazing was banned in 1968, and NI-Gas knewfor decades about the failure of the "brazed joints," but did nottake sufficient action to stop the use of those joints and didnot warn the public about them.

Norman Breyer, Ph.D., testified that there was a good dealof information circulated to the gas distributors starting in1968 regarding the inherent weakness of the Cobra tubingconnection and the danger of using brazing compounds thatcontained phosphorus because it caused the joints to becomebrittle. He further stated that "we know that there are sulphurcompounds in the gas put in either as odorants or as traceelements for the gas that's being transmitted over the pipingsystem." Dr. Breyer opined that "[s]ulphur caused the failure ofthe phosphorous that is inherent in that alloy, the brazingalloy."

The decedent's ex-husband, Leonard Adams, testified indeposition that he had observed NI-Gas employees read the gasmeter in the utility room of the home on occasion, but they didnot examine anything in the house other than the meter. In late1978 or 1980, after having a new clothes drier installed bySears, a gas leak was detected. Janice Adams called NI-Gas. ANI-Gas employee came to the home and checked a gas pipe that ranalong the wall between the meter and the clothes drier. Hediscovered that it was leaking and tightened the pipe.

On June 21, 2000, NI-Gas filed a motion for summary judgmentasserting that it did not owe a legal duty to Janice Adams. Georgevich also filed a motion for summary judgment.

On September 13, 2000, NI-Gas' motion for summary judgmentwas granted and Georgevich's motion for summary judgment wasdeemed moot. Plaintiff filed a motion to reconsider theSeptember 13, 2000, order. On December 22, 2000, plaintiff'smotion to reconsider was denied.

On January 12, 2001, plaintiff filed an emergency motion totake evidence depositions to preserve expert witness testimony. Plaintiff's emergency motion asserted that she had retainedmultiple expert witnesses who were "instrumental" to theplaintiff's cause of action, including Charles Lamar, NormanBreyer, and Edward Karnes. Based on the time to complete theappellate process and the age of the plaintiff's experts,plaintiff requested that the testimony of one or more of herexperts be preserved in the event that the case was returned fortrial. The trial court denied plaintiff's motion, reasoning that"[t]hey're not fact witnesses who are essential to proving thePlaintiff's or Defendant's cases." Plaintiff now appeals thegrant of summary judgment in favor of NI-Gas and the denial ofher emergency motion to preserve testimony.

ANALYSIS

I

Plaintiff asserts that NI-Gas owed Janice Adams a common-lawduty to use every reasonable precaution to avoid injury to theperson or property of its customers and the trial court erred ingranting summary judgment in favor of NI-Gas. NI-Gas respondsthat it owed no duty to plaintiff or her decedent under Illinoiscommon law. Upon petition for rehearing, plaintiff frames theissue as follows: "whether a utility company which has actualknowledge of a dangerous condition associated with the use of itsproduct *** which was in part created by the utility company, hasany responsibility to its customers to warn them of that danger." Appellate courts apply a de novo standard when reviewingsummary judgment rulings. Outboard Marine Corp. v. LibertyMutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204(1992). Summary judgment is appropriate when there is no genuineissue of material fact and the moving party's right to judgmentis clear and free from doubt. Espinoza v. Elgin, Joliet &Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Summary judgment is appropriate only when the pleadings,depositions, admissions, and affidavits on file, if any, showthat there is no genuine issue of material fact and that themoving party is entitled to a judgment as a matter of law. Smithv. Allstate Insurance Co., 312 Ill. App. 3d 246, 251, 726 N.E.2d1 (1999). Where a reasonable person could draw divergentinferences from undisputed facts, summary judgment should bedenied. Pyne v. Witmer, 129 Ill. 2d 351, 358-59, 544 N.E.2d 1304(1989).

Duty is defined as "a legal obligation to conform one'sconduct to a certain standard for the benefit or protection ofanother. [Citations.]" Kurtz v. Wright Garage Corp., 262 Ill.App. 3d 1103, 1107, 6365 N.E.2d 897 (1994). Whether a dutyexists in a particular case is a question of law to be determinedby the court (Ward v. Kmart Corp., 136 Ill. 2d 132, 554 N.E.2d223 (1990)) and is determined by reference to whether the partiesstood in such a relationship to each other that the law imposesan obligation on one to act for the protection of the other(Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238, 665N.E.2d 1260 (1996)). The factors relevant to the court'simposition of a duty include: (1) the likelihood of injury; (2)the reasonable foreseeability of such injury; (3) the magnitudeof guarding against the injury; (4) and the consequences ofplacing that burden on the defendant. Jackson v. TLC Associates,Inc., 185 Ill. 2d 418, 425, 706 N.E.2d 460 (1998); Lee v. ChicagoTransit Authority, 152 Ill. 2d 432, 453, 605 N.E.2d 493 (1992).

It is well-settled in Illinois that "'where a gas companydoes not install the pipes or fixtures and does not own them andhas no control over them it is not responsible for theircondition or for their maintenance, and as a result is not liablefor injuries caused by a leak therein of which it has noknowledge.'" Pioneer Hi-Bred Corn Co. of Illinois v. NorthernIllinois Gas Co., 61 Ill. 2d 6, 13, 329 N.E.2d 228 (1975),quoting Clare v. Bond County Gas Co., 356 Ill. 241, 244, 190 N.E.278 (1934). However, Illinois has not addressed a gas company'sduty to warn its customers of the possible deterioration of thosefixtures when they are damaged, in part, due to the gas productitself.

Plaintiff relies on two out-of-state cases to support hercontention that NI-Gas owes a duty to warn: Lemke v.Metropolitan Utilities District, 243 Neb. 633, 502 N.W.2d 80(1993), and Halliburton v. Public Service Co. of Colorado, 804P.2d 213 (Colo. App. 1990).

In Lemke, the defendant gas company, Metropolitan UtilitiesDistrict (MUD), asserted that it had no duty to notify itscustomers concerning a potential hazard from Cobra connectors. MUD service personnel had adjusted some of the plaintiff's gasranges in 1986. Lemke, 243 Neb. at 652, 502 N.W.2d at 92. Although there was no evidence that the gas provider installedthe Cobra connector to the plaintiff's gas range, there wasevidence that the company installed thousands of Cobra connectorsin homes of MUD customers. Lemke, 243 Neb. at 638, 502 N.W.2d at84. There was no dispute that MUD possessed informationregarding the potential hazard from the American Gas Associationas early as 1979. See Lemke, 243 Neb. at 638, 502 N.W.2d at 84.

The Nebraska Supreme Court held that when a governmentalentity has actual or constructive notice of a dangerous conditionor hazard caused by or under the control of the governmentalentity and the dangerous condition or hazard is not readilyapparent to persons who are likely to be injured by the dangerouscondition or hazard, "the governmental entity has anondiscretionary duty to warn of the danger or take otherprotective measures that may prevent injury as the result of thedangerous condition or hazard." Lemke, 243 Neb. at 647, 502N.W.2d at 89. The court reasoned that "[w]hen MUD receivedinformation about the dangerous condition or potential hazardinvolving Cobra connectors but did not disseminate this criticalinformation to its customers who were using gas appliances withCobra connectors, MUD effectively exerted control in a situationthat could eventually culminate in injury to customers whocontinued to use gas supplied by MUD." Lemke, 243 Neb. at 648,502 N.W.2d at 89. Further, "when MUD became aware that thedistribution of gas through a Cobra connector presented a risk ofinjury to customers, MUD had the duty to use due care, such asissuance of a warning, to protect customers during itsdistribution of natural gas through its own system and through acustomer's service line for a gas appliance." Lemke, 243 Neb. at652, 502 N.W.2d at 92. We find the Lemke case instructive.

The record in the instant case provides evidence that NI-Gaswas aware of the potential danger found in homes using certainflexible connectors. The record includes a letter to Mr. O.C.Davis of the Southern California Gas Company from T.J. Croddy ofNI-Gas, dated May 24, 1976. That letter provided that "[t]hesudden, mysterious separation of brass connectors and theirbrazed-on end fittings has been a concern of gas utility peoplefor several years." On December 14, 1979, the United StatesConsumer Product Safety Commission sent a letter to the presidentof the American Gas Association (AGA). That letter indicatedthat corrugated metal connectors, brand-name Cobra, allegedlycaused a number of fires in homes. While some jurisdictions didnot allow the installation of such connectors, many "may still bein service, and therefore may be susceptible to creating asignificant hazard to the occupants of those residences equippedwith such connectors." On December 19, 1979, the president ofthe AGA sent to all its representatives from AGA member-companiesa letter stating the United States Consumer Product Commissionhad notified it that certain flexible connectors manufacturedprior to 1968 had an increasing potential to fail over time.

The record here also included copies of the April/May 1975,August/September 1978, June/July 1980, summer/fall 1981, December1981, June/July 1983, January 1985, May 1986, and June 1987"Consumer News" notices. The August/September 1978, June/July1980, summer/fall 1981, and December 1981 notices indicated thatan old connector could crack, creating an unsafe condition, whenthe appliance was moved. The January 1985, May 1986, June 1987,and December 1981 warnings provided: "The U.S. Consumer ProductSafety Commission has warned that certain appliance connectorsmanufactured prior to 1968 may be unsafe. If you are concerned,do not try to move the appliance to inspect the connector. Instead, call a qualified service agency of NI-Gas to make theinspection." These newsletters further demonstrate that NI-Gaswas aware of the danger associated with using brazed flexibleconnectors to transmit its odorized gas.

In the Halliburton case, Ola Halliburton was injured and herhusband, Clarence, died as a result of an explosion caused by aleaking flexible connector tube on their gas range in February1985. As early as 1978, the defendant gas company, PublicService Company of Colorado, knew that a large number ofconnector tubes of the type used in the Halliburton home werefailing because of the interaction between its gas and the tubes. Halliburton, 804 P.2d at 215. The defendant company started acampaign in 1980 to warn its customers of the risks presented byfailing connectors. In February 1980, the defendant held a newsconference during which it discussed its campaign to checkcustomer-owned connectors and to disseminate information aboutthis hazard. Defendant also made several radio and televisionannouncements and sent periodic messages in its newsletter withthe customers' monthly billing statements. At the Halliburtontrial, however, there was no evidence that plaintiffs hadreceived actual notice of the problems with the connectors. Halliburton, 804 P.2d at 215.

An issue in Halliburton was whether defendant owedplaintiffs a legal duty to check the connector tube and, ifnecessary, to take corrective action. The court in Halliburtonheld that the defendant had a duty to check and, if necessary, tocorrect the connector. Halliburton, 804 P.2d at 216. The courtwrote:

"Natural gas is considered a product of the selling anddistributing company and, because of the recognized hazardsconnected with the use of natural gas, a higher duty of careis owed by manufacturers and distributors of natural gas."Halliburton, 804 P.2d at 215-16.

Halliburton is dissimilar to the instant case in that, here,no issue exists regarding a duty to check the connector tube. Importantly, however, the Halliburton court wrote:

"'Whether the law should impose a duty requiresconsideration of many factors including, for example, therisk involved, the foreseeability and likelihood of injuryas weighed against the social utility of the actor'sconduct, the magnitude of the burden of guarding againstinjury or harm, and the consequences of placing the burdenupon the actor.'" Halliburton, 804 P.2d at 216, quotingSmith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo.1986).

Also, the court wrote: "The most compelling reason, however, forimposing a duty upon defendant is that its product, natural gas,which contained the corrosive ethyl mercaptan, was a substantialfactor in causing the deterioration of the connector tube." (Emphasis in original.) Halliburton, 804 P.2d at 216. In ourview, while not controlling, Halliburton is also instructive.

In Clare v. Bond County Gas Co., 356 Ill. 241, 190 N.E.2d278 (1934), a historical Illinois case, the court held, "[i]n theabsence of notice of defects[,] it is not incumbent upon a gascompany to exercise reasonable care to ascertain whether or notservice pipes under the control of the property owner or theconsumer are fit for the furnishing of gas." Clare, 356 Ill. at244. Therefore, there was no duty imposed upon the gas companyto inspect the pipes within Clare's premises and under hercontrol. Clare, 356 Ill. at 245. While Clare is still good lawin Illinois, is not applicable to resolving the issues in theinstant matter.

Plaintiff alternatively argues that if NI-Gas did not owe acommon-law duty to warn consumers of the hazards of flexible gasconnectors, it undertook that duty when it issued warnings in itsconsumer newsletter. In plaintiff's view, the warning that wasgiven by NI-Gas "was woefully inadequate" and, therefore, NI-Gasis subject to liability under a voluntary undertaking theory. Wehold that NI-Gas does have a duty to warn consumers. However, weneither decide the adequacy of the warnings nor addressplaintiff's voluntary undertaking theory.

Plaintiff also asserts that the terms and conditions foundin the NI-Gas tariff filed with the Illinois Commerce Commissiondo not preclude the imposition of a duty on NI-Gas. The NI-Gastariff on file with the Illinois Commerce Commission on March 1,1995, provided:

"All gas utilization equipment, piping, and ventsfurnished by the Customer shall be suitable for the purposeshereof and shall be installed and maintained by the Customerat all times in accordance with accepted practice and inconformity with requirements of public health and safety, asset forth by the properly constituted authorities and by theCompany.

The Company assumes no responsibility in connection withthe installation, maintenance or operation of the Customer'sequipment and reserves the right to discontinue service ifsuch equipment is in unsatisfactory condition." (Emphasisadded.)

Plaintiff reasons that because her claim against NI-Gas isnot based on NI-Gas' responsibility in connection with the"installation, maintenance or operation" of her equipment, butits liability resulting from NI-Gas' breach of its common-lawduty to use reasonable precautions to avoid injury and failure toadequately warn its customers of the hazard, the tariff provisionis not applicable.

A public utility's legal obligations are determined by theparticular provisions of the tariff. Sarelas v. Illinois BellTelephone Co., 42 Ill. App. 2d 372, 375, 192, N.E.2d 451 (1963). Whether a utility tariff is ambiguous is a question of law andsubject to de novo review. Bloom Township High School v. IllinoisCommerce Comm'n, 309 Ill. App. 3d 163, 174, 722 N.E.2d 676(1999). Although a utility tariff is not a legislativeenactment, its interpretation is governed by the rules ofstatutory construction. Bloom Township, 309 Ill. App. 3d at 174.

We hold that the plain, unambiguous language of the tariffabsolves NI-Gas from liability relative to equipment owned andmaintained by the customer. The tariff, however, does notpreclude plaintiff's claim that NI-Gas owed a duty to herdecedent to warn of the potential hazards of brazed connectorswhen sulfur-odorized natural gas travels through them. After reviewing the pleadings, depositions, and admissions onfile, we hold, as a matter of law, that a utility company thathas actual knowledge of a dangerous condition associated with theuse of its product has a responsibility to its customers to warnthem of that danger.

II

Plaintiff also avers that she established good cause forpreserving the evidence depositions of the witnesses in questionand the trial court abused its discretion in denying her motionto preserve testimony. NI-Gas responds that the trial court didnot abuse its discretion in denying plaintiff's motion topreserve testimony because plaintiff had ample time to depose herretained expert witnesses prior to the grant of summary judgment;also, the witnesses were not fact witnesses who were essential toproving plaintiff's case. We agree.

Rule 217 provides for the taking of depositions in order topreserve testimony. 134 Ill. 2d R. 217. A trial court may, on amotion and for good cause shown, allow the taking of depositionsof witnesses to perpetuate their testimony for use in the eventof further proceedings in that court. 134 Ill. 2d R. 217(b).

NI-Gas' motion for summary judgment was granted on September13, 2000. Plaintiff's motion to reconsider was denied onDecember 22, 2000. Plaintiff represented in her January 12,2001, motion to preserve testimony that: due to the schedules ofthe witnesses and the attorneys, she was unable to complete theevidence depositions of her two expert witnesses; and based onthe time to complete the appellate process and the age of herexperts, she would "suffer great prejudice if the testimony ofone or more of her experts is not preserved for trial." Thetrial court denied the motion to preserve, noting that "[t]hey'renot fact witnesses who are essential to proving the Plaintiff'sor Defendant's cases. They're retained experts. We substituteexperts quite frequently." In our view, the trial court did notabuse its discretion in denying plaintiff's motion. Plaintiff'sreasons for not completing the depositions and her need topreserve the testimony fail to demonstrate good cause to warrantpreservation.

For the foregoing reasons, we reverse the grant of summaryjudgment in favor of NI-Gas and remand for further proceedings.We also affirm the denial of plaintiff's motion to preservetestimony.

Affirmed in part; reversed and remanded in part.

McNULTY and TULLY, JJ., concur.