This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-657

 

Chandra Renee Garrison, et al.,

Appellants,

 

vs.

 

Farmers Co-operative Exchange and/or

Deer River Farmers Co-op Exchange,

Respondent,

 

THERMOGAS COMPANY and/or THERMOGAS

COMPANY of Grand Rapids,

Defendants.

 

Filed November 8, 2000

Affirmed

Willis, Judge

 

Itasca County District Court

File No. C599592

 

Tyrone P. Bujold, William A. Mayson, Robins, Kaplan, Miller & Ciresi, LLP, 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN  55402; and Gregory N. McEwen, McEwen Law Office, 1600 Pioneer Building, 316 N. Robert Street, St. Paul, MN  55101 (for appellants)

 

Thomas A. Harder, Foley & Mansfield, PLLP, 200 Lafayette Building, 1108 Nicollet Mall, Minneapolis, MN  55403 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellants sued the supplier of liquid-propane gas for their home after an explosion that killed and injured family members.  They alleged that the gas company was negligent in failing to conduct a “reasonable inspection” of the gas system when it began supplying gas to the home.  The district court granted summary judgment to the gas supplier.  Appellants contend the district court erred in determining that the gas supplier had no duty to inspect and in sanctioning appellants for spoliation of evidence by excluding evidence of the cause and origin of the explosion.  Because we conclude the gas supplier did not have a duty to inspect appellant’s gas system, and because the sanction was not an abuse of discretion, we affirm.

FACTS

In June 1996, there was a gas explosion at the home of Howard and Harriet Carlson near Cohasset.  The explosion killed Harriet Carlson and Mikayla Garrison.  Appellants Chandra Renee Garrison, Chester Lloyd Garrison, and Sandra Kay Dagenais all suffered significant injuries.  Appellants all were in the house at the time of the explosion.  Howard Carlson was also present and injured but is not a named party.  

            The explosion was caused by the ignition of liquid-propane gas (LP gas) that had accumulated inside the home.  Six to nine months before the explosion, the Carlsons switched LP-gas suppliers from THERMOGAS COMPANY to respondent Farmers Co-Operative Exchange (“Farmers”).  Farmers had delivered LP gas to the tank on the Carlson property but had never inspected the home’s gas system. 

The LP-gas system and the gas appliances in the home all were installed by Howard Carlson or by friends or family members, none of whom was trained in the installation, inspection, or maintenance of LP-gas systems.  Four or five years before the explosion, Howard Carlson installed a water valve, rather than a gas valve, to control the flow of gas to a line connected to a cooking stove on the porch.  Carlson later disconnected the line from the stove, leaving the line uncapped and coiled beneath the porch; it was in this condition on the day of the explosion.  The day before the explosion, the Carlsons’ son-in-law and a friend of his installed a new gas stove in the home.  On the day of the explosion, friends of the Carlson family installed a gas-water heater.  During the installation, they disconnected the clothes dryer, which also used gas.  One to four hours after the water heater was installed, appellants began to notice the odor of gas in the home.  The explosion occurred shortly thereafter.  

Terry Christensen, a deputy state fire marshal, arrived at the Carlsons’ home 10 to 15 minutes after the explosion.  Christensen took photographs of the scene, focusing on the gas lines and appliances.  Christensen also had the firefighters turn on the gas so that he could use a hydrocarbon detector, or “sniffer,” to locate any leaks in the gas system.  The sniffer registered readings near the water valve and at the end of the uncapped line under the porch.  Christensen removed the water valve and wired it shut so that its position (i.e., open or closed) could not be changed.  Christensen did not remove the pipes to which the water valve was attached.  The valve remained in Christensen’s van for approximately two years before it was turned over to appellants’ trial counsel, at which time it was no longer wired shut.   

            Two days after the explosion, William Mahre, an expert retained by Farmers, arrived at the scene to conduct an inspection.  Russell Melton, an attorney for Farmers, accompanied Mahre.  Mahre remained 25 feet away from the explosion scene, waiting for one of the property owners to accompany him.  From that distance, he took photographs with a telephoto lens.  He also examined the external propane tank to verify that it contained the proper level of odorant.  Before Mahre could conduct any further examination of the site, sheriff’s deputies arrived and escorted him and Melton from the property, advising them that they did not have the Carlson family’s permission to be there.  Although Melton told the deputies that he would get a court order, Farmers made no further attempts to view the property.

            Approximately ten days after the explosion, all of the debris, including the demolished home, LP pipes, and appliances, was dumped into a swamp on the Carlsons’ property.  The district court concluded that the evidence supported the inference that appellants’ friends or relatives cleared the site.

            Farmers was served with a summons and complaint in March 1999, alleging that it was negligent in failing to conduct a “reasonable inspection” of the Carlsons’ gas lines when it began supplying LP gas to their home.  Farmers moved for summary judgment on the ground that, as a matter of law, it did not owe a duty to inspect the Carlsons’ LP-gas system.  Farmers also moved for exclusion of Christensen’s investigation of the explosion site and his conclusions because the evidence was destroyed before Farmers could inspect it.  The district court granted summary judgment to Farmers, concluding that, because appellants did not establish that Farmers had a duty to inspect the LP system, they failed to make a prima facie showing of negligence.  The court excluded evidence from Christensen’s investigation and his conclusions because Farmers was not notified, until the filing of this lawsuit, that appellants would attempt to hold them liable, and thus before that time Farmers had no legal duty to seek or ground on which to seek a court order to examine the explosion site.

D E C I S I O N

On appeal from summary judgment, the reviewing court determines whether there are genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  The evidence must be viewed in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

I.          Duty to Inspect

            To survive summary judgment, appellants must establish a prima facie claim of negligence.  The elements of negligence are “(1) duty; (2) breach of that duty; (3) that the breach of duty be the proximate cause of plaintiff’s injury; and (4) that plaintiff did in fact suffer injury.”  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982) (quotation omitted).  The district court concluded that appellants failed to establish that Farmers had a duty to inspect the gas system at the Carlson home before making its first gas delivery.

The existence of a legal duty is a question of law, which this court reviews de novo.  Wood v. Korn, 503 N.W.2d 523, 524 (Minn. App. 1993), review denied (Minn. Aug. 24, 1993).  The Minnesota supreme court has limited a gas supplier’s duty to inspect by holding that

[w]ith respect to gas appliances in a customer’s building which are not installed, owned, or controlled by the gas company, a gas company has no duty to make periodic inspections to ascertain the safety of such appliances in the absence of some contract, custom, or statutory obligation.

 

Wilson v. Home Gas Co., 267 Minn. 162, 171, 125 N.W.2d 725, 731 (1964) (emphasis added) (quoting Bellefuil v. Willmar Gas Co., 243 Minn. 123, 126, 66 N.W.2d 779, 782 (1954)).  But a duty to inspect, repair, or to shut off the gas does arise when the gas supplier acquires actual or constructive notice of some existing or potentially dangerous condition in a customer’s private gas lines or appliances.  See Ruberg v. Skelly Oil Co., 297 N.W.2d 746, 751 (Minn. 1980); Bellefuil, 243 Minn. at 129, 66 N.W.2d at 784.  Notice triggering the duty exists when

the supplier is in possession of facts that would suggest to a person of ordinary care and prudence that some part of the gas system is leaking or is otherwise unsafe for the transportation or use of gas.    

 

Ruberg, 297 N.W.2d at 751. 

 

Appellants argue that, when a gas supplier makes an initial delivery to a new customer with “an aging gas system of unknown characteristics,” it has constructive notice that the system may be unsafe.  Appellants also note that the existing case law involves situations where there was an ongoing relationship between the customer and the gas supplier.  Appellants urge that we adopt a rule that, before beginning delivery of gas to a new customer, a gas supplier must conduct a “reasonable inspection” to ensure that the system is safe and in good working order.  But the supreme court has made clear that in the absence of notice, the gas supplier can act on

the assumption * * * that the customer’s appliances are in repair so as to permit the transmission of gas therein with safety.  In the absence of a contrary showing, it is the responsibility of the customer to maintain and repair his appliances.

 

 Bellefuil, 243 Minn. at 126, 66 N.W.2d at 782-83.  In Fabbrizzi v. Village of Hibbing, the supreme court stated that

where a gas company does not install or own the service lines on private property and exercises no control over them, it is not responsible for the condition in which they are maintained and is not liable for damages caused by a leak therein of which it does not have notice.  And a gas company, in the absence of notice of defects in the service lines, is not required to make inspections of the lines on private property when the lines are not owned by it or under its control.

 

Fabbrizzi v. Village of Hibbing, 242 Minn. 464, 468, 66 N.W.2d 7, 9 (1954).  Thus,  it is the customer’s responsibility to maintain and repair private gas lines and appliances, and there is a presumption that a customer’s private lines and appliances are in good repair, absent notice to the contrary. 

Appellants argue that gas companies customarily make an initial inspection before delivering gas to a new customer and that this custom creates a duty to inspect.  But the district court found that where, as here, service has not been interrupted, an initial inspection is not customary.  And even if an initial inspection were customary, evidence of industry custom is relevant only to a standard of care; it is not determinative of whether a legal duty exists. ServiceMaster of St. Cloud v. GAB Business Servs., Inc., 544 N.W.2d 302, 307 (Minn. 1996).  “A defendant will not be bound to conform its conduct to a standard of care unless a legally recognized duty exists.”  Id. (citation omitted). 

II.        Spoliation of Evidence

            Appellants argue that the district court abused its discretion in sanctioning them for spoliation by barring evidence that had already been provided to respondent.  This court will not overturn a district court’s choice of sanction absent an abuse of discretion.  See Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995) (upholding sanctions for spoliation).  A district court abuses its discretion in imposing sanctions “only when it is clear that no reasonable person would agree [with] the [district] court’s assessment of what sanctions are appropriate.”  Id. (quotation omitted).  In determining the propriety of a sanction when there has been negligent or inadvertent spoliation of evidence, courts look to the prejudice to the opposing party.  Id.  The nature of the evidence lost must be examined in the context of the claims asserted and the potential for remedying the prejudice.  Id.    

            Here, Farmers does not allege that the home, LP pipes, and appliances were purposefully destroyed or that any named party participated in the destruction of this evidence.  The district court found that appellants’ friends and family likely removed the evidence.  Relying on Hoffman v. Ford Motor Co., appellants argue that remedies for spoliation are available only when the evidence in question is within the control of a party or a party’s agent.  Hoffman v. Ford Motor Co., 587 N.W.2d 66, 71 (Minn. App. 1998) (stating that “[s]poliation of evidence refers to the destruction of relevant evidence by a party.”) (quoting Donohoe v. American Isuzu Motors, Inc., 155 F.R.D. 515, 519 (1994)).  But this language does not establish a rule that remedies for spoliation are available only when the evidence is within the control of a party or a party’s agent, rather it merely reflects the fact that, in Hoffman, appellants or their agents were the alleged spoliators.

The supreme court has defined spoliation broadly as “the destruction of evidence” and the “failure to preserve property for another’s use as evidence in pending or future litigation.”  Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990) (quotations omitted).  Spoliation encompasses any negligent or inadvertent destruction of evidence.  See Patton, 538 N.W.2d 119.  This court upheld sanctions for spoliation where a non-party lost relevant evidence in Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. App. 1997), review denied (Minn. Aug. 26, 1997).  Himes, a track laborer for a railroad, was injured when a track-bolt wrench that he was using broke.  An expert hired by the railroad concluded that the metal in the wrench was too brittle for use in that type of wrench, and the railroad settled Himes’s FELA claim against it.  Himes then sued the wrench manufacturer, and shortly thereafter learned that the railroad’s claims agent had lost the wrench.  Because the manufacturer was unable to independently investigate the product that allegedly caused Himes’s injury, the district court sanctioned Himes by excluding the expert-witness testimony and report, resulting in dismissal of his claims.  Here, as in Himes, a non-party inadvertently destroyed relevant evidence, and the district court sanctioned the plaintiff by excluding expert-witness testimony and conclusions where the defendant did not have the opportunity to conduct an independent examination to determine the cause of the accident. 

Appellants argue that because the water valve has been preserved, “the critical item of evidence still exists.”  But simply because appellants and Christensen opine that the water valve was the source of the gas leak does not make it so.  Further, the evidentiary value of the water valve was compromised because it was removed from the pipes to which it had been connected and the wire that Christensen used to maintain its position had been removed.  As this court has previously recognized, “the fire scene itself is the best evidence of the origin and cause of a fire” and is of “unquestionable relevancy.”  Hoffman, 587 N.W.2d at 71.  

In Hoffman, the plaintiff drove home in a new Ford Taurus and parked it in his attached garage.  About a half-hour later, the plaintiff noticed that his garage was on fire and dialed 911.  A deputy state fire marshal investigated the scene to determine the cause and origin of the fire.  The plaintiff’s insurance company also retained a fire investigator to make a cause-and-origin determination.  Sometime thereafter, but before Ford had an opportunity to conduct an independent investigation, the Taurus was taken to a salvage yard and the garage and home were demolished.  The plaintiff sued Ford.  The district court found that important evidence had been destroyed, lost, or altered and concluded that Ford was prejudiced by the spoliation.  The district court sanctioned the plaintiff by excluding all testimony and evidence “regarding the cause of the fire that derived from an investigation of the car itself, the garage, or any contents of the garage.”  Id. at 70.  Without that evidence, the plaintiff could not prove his claim, and the court dismissed the case.  This court upheld the district court’s sanction, concluding that its finding that “relevant evidence of the origin and the cause of the fire had been destroyed  * * * was not clearly erroneous.”  Id. at 71.  This court also found that Ford

had been deprived of an opportunity to conduct a firsthand investigation of a myriad of possible alternative ignition sources at the scene of the fire and was forced instead to rely on unclear and incomplete photographs and the testimony of other fire investigators to rebut appellant’s claims.

 

Id. Thus, this court concluded that the district court’s finding that Ford was “significantly prejudiced” was not clearly erroneous.  Notably, this court concluded that Ford was prejudiced by being denied an opportunity to conduct a firsthand investigation of the scene despite the fact that a deputy state fire marshal had conducted a presumably independent investigation.  Id.

The ability to conduct an independent investigation of the explosion scene was critical to Farmers’ case.  Farmers was denied this opportunity, and it should not be forced to rely on Christensen’s report to rebut appellants’ claims.  See id.; Himes, 565 N.W.2d at 471.  

Finally, appellants argue that they should not be sanctioned for spoliation of evidence because Farmers had actual notice of its potential liability but failed to act to preserve evidence.  This court has held that to be sufficient in content, “a spoliation notice must reasonably notify the recipient of a breach or a claim.”  Hoffman, 587 N.W.2d at 70.  Where notice is sufficient, a party can avoid sanctions for spoliation of evidence.  Id.  Appellants do not state when or how they notified Farmers of its potential liability.  The district court found that Farmers did not know that it would be held liable until it was sued almost three years after the explosion. 

Nevertheless, it is clear that Farmers knew about the explosion involving its gas: It sent a fire investigator to the scene just days after the explosion.  In Hoffman, the plaintiff called the dealership from which he bought the car to cancel a service appointment and to request paperwork related to the car.  He also told an employee of the dealership, “[M]y new Ford Taurus started on fire in my garage and burned my whole house down.”  Id. at 68.  This court concluded that the plaintiff was too vague as to the cause of the fire, fault, or responsibility and that neither he nor his insurer subsequently contacted Ford about the fire loss.  Thus, this court upheld the district court’s finding that the notice of claim was insufficient in content and upheld the imposition of sanctions for spoliation.  Id. at 71.  Here, appellants appear to believe that because Farmers was aware of the explosion, it was to assume that it would be held liable.  This is insufficient notice of a claim to avoid sanctions for spoliation.  See id. at 70. 

            Affirmed.