The defenses available to a gas company can be generally classified as follows:
- existence of a contractual provision, that a gas company shall have no duty to inspect pipes and equipment which is under the sole control of the consumer;
- the doctrine of contributory negligence on the part of a person injured by the escape of gas from the pipes of a gas company;
- the doctrine of assumption of the risk; and
- commercial impracticability.
The defense that the gas company has no duty to inspect the pipes and equipment which are under the sole control of the consumer as a result of the contract between the gas company and the consumer will operate only so long as the company has no duty to inspect the consumer’s pipes. However, it has been held that no effect will be given to such contractual provision if there is negligence on the part of the gas company[i].
According to the doctrine of contributory negligence, if a person has knowledge that the gas is escaping into his/her home from the main of a gas company, the doctrine imposes a duty upon such person to take suitable precautions for his/her safety. This rule is well established in jurisdictions that do not adopt the principle of comparative negligence. Ordinarily, the defense of contributory negligence is a question of fact and it is usually determined by the jury under proper instructions from the court. For example, the question that whether the plaintiff was negligent in erecting a garage over a gas service line and whether s/he contributed to the deterioration of the line and escape of gas is a question for jury determination.
However, the failure to take corrective measures or the taking of improper corrective measures upon notice of a dangerous condition from gas will not attract the doctrine of contributory negligence. Similarly, the rule of contributory negligence will not apply to a person who seeks to rescue another from imminent danger, and if in such effort imperils his/her own life. But, if the jury finds that the act of the rescuer was rash and reckless, then s/he will be held guilty of contributory negligence.
In order to use the defense of assumption of risk, the defendant must show that the plaintiff[ii]:
- had knowledge of the risk of the danger;
- appreciated that risk; and
- voluntarily confronted the risk of danger.
In Blood v. Hamami P’ship, 143 Md. App. 375 (Md. Ct. Spec. App. 2002) the court held that “the first two elements of assumption of the risk — knowledge and appreciation of the risk of danger — must be determined on an objective standard. Thus, a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him. Moreover, when it is clear that a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” The court further held that “in defining the defense of assumption of the risk, the defense rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.”
The doctrine of assumption of the risk defense is based on the theory that a plaintiff who voluntarily consents, either expressly or impliedly, to expose him/herself to a known risk cannot later sue for damages incurred from exposure to that risk. Hence, the touchstone of the defense of assumption of risk is consent[iii]. Assumption of risk serves as a complete bar against a plaintiff from recovering, where negligence is on the part of the plaintiff. The fact that whether a negligent plaintiff had knowledge of the risk is generally one for the determination of the jury. However, in the case where a person’s normal intelligence clearly comprehends the danger, the question is one for court determination[iv].
In order to apply the defense of commercial impracticability the defendant must establish that[v]:
- a contingency has occurred;
- the non-occurrence of which was a basic assumption on which the contract was made; and
- as a result of the occurrence further performance by the party has been rendered impracticable.
[i] Phillips v. Alexandria, 11 La. App. 228 (La.App. 1929).
[ii] Marley Co. v. RB & W Corp., 1995 U.S. App. LEXIS 9537 (4th Cir. Md. Apr. 26, 1995).
[iii] Turner v. Adaltis U.S.A., Inc., 2005 U.S. Dist. LEXIS 31537 (D. Md. Dec. 7, 2005).
[iv] Crews v. Hollenbach, 358 Md. 627 (Md. 2000).
[v] USX Corp. v. International Minerals & Chemicals Corp., 1989 U.S. Dist. LEXIS 1277 (D. Ill. 1989).