COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67508, 67509, 67515 and 67516 DAVID E. WEISS, EXECUTOR, ETC., : ET AL. : : JOURNAL ENTRY Plaintiff-Appellants: : AND vs. : : OPINION THOMAS & THOMAS DEVELOPMENT COMPANY, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 3, 1995 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case Nos. CV-249210 and CV- 216281 JUDGMENT: AFFIRMED IN PART AND REVERSED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant R. ERIC KENNEDY David E. Weiss, Executor, HENRY W. CHAMBERLAIN etc.: 1600 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 For New-Party Plaintiffs- HAROLD H. READER Appellants, State Automobile CHARLES R. OLSAVSKY Mutual Insurance Company and RUTH E. MARTIN State Auto Property & Casualty Ulmer & Berne Insurance Company: Bond Court Building 1300 East 9th Street, Ste 900 Cleveland, Ohio 44114-1583 (Continued) - 2 - (Continued) For Defendant-Appellees, HENRY B. BRUNER All Thomas & Thomas: P.O. Box 394 67 E. Washington Street Chagrin Falls, Ohio 44022 For Defendant-Appellees, JAMES L. McCRYSTAL Dry Hole National Petroleum SCOTT C. SMITH Co. Project, Newbury Expansion WILLIAM H. BAUGHMAN Gas & Oil Project and 2500 Terminal Tower Lyndall Hughes: Cleveland, Ohio 44113-2241 For Defendant-Appellee PHILLIP A. LAWRENCE Harry W. Gempel: 26 South Franklin Street Chagrin Falls, Ohio 44022 For Defendant-Appellee GEORGE W. LUTJEN Patrick Leahey: 1800 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 For Defendant-Appellee WALTER A. RODGERS Equimeter and Rockwell: 800 Superior Bldg. #1800 Cleveland, Ohio 44114-2688 - 3 - O'DONNELL, J.: Appellants, David E. Weiss, Executor of the Estate of Nelson E. Weiss, Esq., State Automobile Mutual Insurance Company and State Auto Property and Casualty Insurance Company, appeal from the decision of the trial court granting summary judgment in favor of all appellees, Thomas & Thomas Development Company, et al., Dry Hole Natural Petroleum Company, Inc., et al., Harry W. Gempel and Patrick Leahey. The events which gave rise to this case began in 1980, when appellee Thomas and Thomas sold a parcel of real estate located on Music Street in Newbury Township, Ohio, to one of its employees John Brickner. Brickner constructed a home on the property with gratuitous advice and guidance from co-employee, appellee Patrick Leahey. At all times, the property was encumbered by a natural gas well and lease owned by appellee Dry Hole, who provided the home with up to 200,000 cubic feet of natural gas per year at no cost. Leahey recommended appellee Harry Gempel, a plumber, to Brickner as an individual capable of installing the gas delivery system from the well to the home. Gempel installed the system which included a gas meter, piping, a regulator to reduce pressure and a separator to clean the well gas. Upon completion, the home was used as Brickner's residence until 1985 when Brickner sold it and deeded the gas well rights to attorney Nelson Weiss. - 4 - In 1986 Weiss built an addition to the home, relocated portions of the original gas delivery system and in so doing, removed the separator from the system. On March 21, 1991, Nelson Weiss, while alone in his home, was tragically killed when the pilot light on the water heater ignited leaking gas from a ruptured pipe, causing the home to explode. Appellants attributed the rupture to a malfunction in the system delivering unclean natural gas to the home. On August 16, 1991, in case No. 216281, the Executor of the estate of Weiss filed a wrongful death action. On March 19, 1993, in case No. 249210, the Estate of Weiss and his property insurer, State Auto, filed a related suit asserting State Auto's subrogation rights. These actions were consolidated and on May 26, 1994, the trial court granted summary judgment in favor of Thomas & Thomas, Dry Hole, Gempel, Leahey, Rockwell and Equimeter. On August 1, 1994, plaintiffs voluntarily dismissed the remaining defendant Brickner. Weiss and State Auto now appeal the trial court's grant of summary judgment in favor of appellees Thomas & Thomas, Dry Hole, Leahey and Gempel. Weiss raises seven and State Auto raises nine assignments of error. These assignments of error fall into three distinct categories and will be reviewed as they pertain to the following: the constitutionality of R.C. 2305.131; the liability of appellees Gempel, Thomas & Thomas, and Patrick Leahey; and the liability of the Dry Hole appellees. - 5 - I. Weiss' first and State Auto's fourth, sixth and eighth assignments of error share a common basis in law and will be addressed together. Weiss first alleges that: THE LOWER COURT ERRED WHEN IT HELD THAT THE STATUTE OF REPOSE BARS THIS ACTION AGAINST APPELLEES, HARRY W. GEMPEL, ALL THOMAS & THOMAS APPELLEES, AND PATRICK LEAHEY WHEN SAID STATUTE IS UNCONSTITUTIONAL. State Auto contends: THE TRIAL COURT ERRED BY ENFORCING THE STATUTE OF REPOSE AS TO APPELLANTS' CLAIMS AGAINST APPELLEE GEMPEL BECAUSE THE STATUTE IS UNCONSTITUTIONAL. THE TRIAL COURT ERRED BY ENFORCING THE STATUTE OF REPOSE AS TO APPELLANTS' CLAIMS AGAINST APPELLEES THOMAS & THOMAS DEVELOPMENT COMPANY, THOMAS & THOMAS CONSTITUTION COMPANY, THOMAS & THOMAS CONSTRUCTION AND THOMAS & THOMAS CONSTRUCTION MANAGEMENT, INC. BECAUSE THE STATUTE IS UNCONSTITUTIONAL. THE TRIAL COURT ERRED BY ENFORCING THE STATUTE OF REPOSE AS TO APPELLANTS' CLAIMS AGAINST APPELLEE LEAHEY BECAUSE THE STATUTE IS UNCONSTITUTIONAL. Essentially, appellants argue that the court's reliance on R.C. 2305.131 as a partial justification for summary judgment was error because that statute has since been declared unconstitu- tional. Appellees do not challenge the court's ruling on this matter. - 6 - In Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, almost five months after the trial court entered its order, the Ohio Supreme Court held in the syllabus of its opinion: 2. R.C. 2305.131, a statute of repose, violates the right to a remedy guaranteed by Section 16, Article I of the Ohio Constitution, and is, thus, unconstitutional. (Sedar v. Knowlton Constr. Co. [1990], 49 Ohio St.3d 193, 551 N.E.2d 938, overruled.) (Emphasis added.) In view of the fact that R.C. 2305.131 has now been declared unconstitutional, these assignments of error are meritorious. Therefore, we are required to sustain appellant's assignments of error challenging the portion of the trial court's ruling that was based on that statute. However, since the court's ruling was based on additional determinations as to these appellees, we are required to consider those additional issues. II. Weiss' second, sixth, and seventh and State Auto's fifth, seventh and ninth assignments of error challenge the trial court's award of summary judgment in favor of Gempel, Thomas & Thomas and Leahey on grounds other than R.C. 2305.131. Weiss contends: THE LOWER COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE GEMPEL ON GROUNDS OTHER THAN THE STATUTE OF REPOSE. THE COURT COMMITTED ERROR IN FINDING, AS A MATTER OF LAW, THAT THOMAS & THOMAS OWED NO DUTY TO APPELLANTS. - 7 - THE TRIAL COURT COMMITTED ERROR IN RULING AS A MATTER OF LAW THAT LEAHEY OWED NO DUTY TO APPELLANTS RELATIVE TO THE CONSTRUCTION OF THE MUSIC STREET PROPERTY. State Auto contends: THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE GEMPEL SINCE THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER GEMPEL OWED A DUTY TO APPELLANTS. THE TRIAL COURT ERRED BY CONCLUDING THAT APPELLEES THOMAS & THOMAS DEVELOPMENT COMPANY, THOMAS & THOMAS CONSTRUCTION COMPANY, THOMAS & THOMAS CONSTRUCTION AND THOMAS & THOMAS CONSTRUCTION MANAGEMENT, INC. WERE NOT NEGLIGENT BECAUSE THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THEY WERE NEGLIGENT. THE TRIAL COURT ERRED BY CONCLUDING THAT APPELLEE LEAHEY WAS NOT NEGLIGENT BECAUSE THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER LEAHEY WAS NEGLIGENT. In its ruling the court found that Gempel had no duty to warn Weiss of the dangers of the delivery system or the importance of periodic inspection and, further, that in the absence of any consideration paid neither Thomas & Thomas nor Patrick Leahey could be determined to be general contractors, but merely performed favors for Brickner. Weiss and State Auto argue that summary judgment was improper because material issues of fact exist as to whether Gempel owed a duty to Weiss or negligently designed and installed the system. Weiss and State Auto further argue that material issues of fact exist because Thomas & Thomas and Leahey owe a duty of reasonable care to Weiss, regardless of whether or not - 8 - they are volunteers and, alternatively, because they are liable to Weiss as general contractors. Gempel believes that his installation of the system could not have been the proximate cause of the explosion because of excessive deletions and alterations to the system by subsequent contractors. Thomas & Thomas did not file a brief in this court. Leahey asserts that he was not a general contractor, owed no duty to Weiss and was not negligent. The issue then is whether or not the trial court should have granted summary judgment in favor of these appellees. Civ.R. 56(C) provides in pertinent part that: *** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits *** show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Appellants concede that Weiss was not in privity with Gempel. The record reveals that Gempel was a subcontractor for Brickner and installed the gas delivery system to the house. In Lin v. Gatehouse Constr. Co. (1992), 84 Ohio App.3d 96, at Headnote 7, this court held that: Privity of contract is required for a subsequent owner to maintain a negligence action against a subcontractor for failure to perform in a workmanlike manner. (Emphasis added.) This privity is not required where the suit is brought against the builder/vendor. McMillan v. Builders, Inc. (1983), 8 Ohio St.3d 3. - 9 - In view of the admitted lack of privity between Weiss and Gempel and this court's ruling in Lin, and applying the standards of Civ. R. 56(C), we conclude that no genuine issues of material fact exist and Gempel is entitled to judgment as a matter of law because no privity existed between Gempel and Weiss. In order for appellants to bring a successful cause of action against Thomas & Thomas or Leahey, they must demonstrate that either Weiss was in privity with these parties, pursuant to Lin, supra, or that they were general contractors on the project, pursuant to McMillan, supra. Regardless of whether Thomas & Thomas or Leahey are volunteers, appellants have failed to present any evidence of privity with Weiss. Therefore, under Lin, appellants may not recover on this theory of liability. We next consider whether or not Thomas & Thomas or Leahey were general contractors on the original construction of the home. In their answers to interrogatories, appellants judicially admitted that Brickner was the general contractor on that project: Request for Admission No. 3 Do you admit that Jack Brickner operated as his own general contractor for purposes of construction of the subject residence? ANSWER: Admit. Based on this admission, and the supreme court's ruling in McMillan, we find no that genuine issues of material fact exist - 10 - and conclude that neither Thomas & Thomas nor Leahey was the general contractor on the project. Applying the standards of Civ. R. 56(C),and under the holdings of Lin and McMillan, appellants assignments of error against Gempel, Thomas & Thomas, and Leahey are not well taken. III. Weiss's third, fourth and fifth assignments of error and State Auto's first, second and third assignments of error address the court's granting of summary judgment in favor of Dry Hole, and will be addressed collectively. Weiss contends: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES, DRY HOLE NATURAL PETROLEUM COMPANY, INC., DRY HOLE NATURAL PETROLEUM, NEWBURY EXPANSION GAS & OIL PROJECT AND LYNDALL HUGHES, WHEN SAID APPELLEES HAD A DUTY OF REASONABLE CARE TO INSPECT THE GAS DELIVERY SYSTEM AT THE TIME OF INITIAL HOOK-UP. THE TRIAL COURT ERRED IN RULING, AS A MATTER OF LAW, THAT NO DUTY EXTENDS FROM THE DRY HOLE APPELLEES TO APPELLANTS WHEN THE COMMON LAW ESTABLISHES A DUTY. THE LOWER COURT ERRED WHEN IT RULED AS A MATTER OF LAW THAT THE LEASE AGREEMENT INSULATED THE DRY HOLE APPELLEES FROM LIABILITY. State Auto contends: THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLEES DRY HOLE NATURAL PETROLEUM CO., INC., DRY HOLE - 11 - NATURAL PETROLEUM, NEWBURY EXPANSION GAS AND OIL PROJECT AND LYNDALL HUGHES WERE NOT STRICTLY LIABLE TO APPELLANTS SINCE THE SUBJECT ACTIVITY IN WHICH THEY WERE ENGAGED WAS INHERENTLY DANGEROUS AND INVOLVED MATERIAL LIKELY TO DO MISCHIEF IF IT ESCAPED. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES DRY HOLE NATURAL PETROLEUM CO., INC., DRY HOLE NATURAL PETROLEUM, NEWBURY EXPANSION GAS AND OIL PROJECT AND LYNDALL HUGHES BECAUSE THERE ARE QUESTIONS OF FACT AS TO THEIR DUTIES TO APPELLANTS AND THEIR NEGLIGENCE. THE TRIAL COURT ERRED IN CONCLUDING THAT THE CONTRACT LANGUAGE RELIEVED APPELLEES DRY HOLE NATURAL PETROLEUM CO., INC., DRY HOLE NATURAL PETROLEUM, NEWBURY EXPANSION GAS AND OIL PROJECT AND LYNDALL HUGHES OF A DUTY TO APPELLANTS. In its entry, the trial court ruled that Dry Hole could not be strictly liable to Weiss, had no duty to inspect the gas delivery system at the time of hookup, and that the lease agreement which placed the burden to maintain the system on the private land owner is enforceable against Weiss. Appellants argue that operation of a natural gas well is an "absolute nuisance" creating strict liability, that Dry Hole had a common law duty to inspect the system at the time of installation because, they allege, it was the custom in the trade to do so, and that the exculpatory language in the lease is void for vagueness and is against public policy. Dry Hole believes that as a matter of law it has no common law duty to Weiss or strict liability based on absolute nuisance and that the lease absolved Dry Hole of any liability. The issue - 12 - then for our resolution is whether there are any genuine issues of material fact as to what duty if any Dry Hole owed Weiss. We begin by addressing appellants' claim that operation of a natural gas well is an absolute nuisance calling for strict tort liability. The standard of care of a gas company for operation of its business is ordinary care, not strict liability. See Suiter v. Gas Co. (1967), 10 Ohio St.2d 77. Further, "the amount of care required to constitute ordinary care, is commensurate with the danger involved," See Suiter, at 79; Johnston v. Cleveland Electric Illuminating Co. (March 8, 1979), Cuyahoga App. No. 38374, unreported. Appellants' argument as to Dry Hole being strictly liable to Weiss is not supported by Ohio law. Next, we address whether or not Dry Hole owed a duty to Weiss to inspect the gas system at the time of installation. Initially, we note that since the existence of a duty in a negligence action is a question of law for the court to determine, Mussivand v. David (1989), 45 Ohio St.3d 314,at 318, disposition of this issue by summary judgment was appropriate since no jury issue exists. Several Ohio cases have found that a gas company has no duty, absent knowledge of a defect, to inspect a landowner's private system. In Cuccioliollo v. East Ohio Gas Co. (January 24, 1978), Mahoning App. No. 76 C.A. 23, unreported, the court reiterated the long standing proposition of Ohio law that: Inasmuch as it is known that gas is highly dangerous and that explosions may result from its - 13 - escape, a gas company must use that degree of care to prevent the escape of gas from its pipes commensurate to the danger which it is its duty to avoid, and it will as a general rule be liable for any injury proximately resulting from a failure to exercise this duty. "Generally, however, a gas company which does not install the pipes on a customer's premises, and which has no control over them, is not liable for the condition in which they are maintained, and therefore will not be liable for injuries resulting from a leak therein, unless it has notice of such defect." (Emphasis added.) (Citing 76 Ohio Jurisprudence 2d 129, 130, Gas Companies, Section 43.) In Hamden Lodge v. Gas Co. (1934), 127 Ohio St. 469, 474, the Ohio Supreme Court found that if a defective gas pipe is in the exclusive control of the company there should be a duty to inspect, but that in the absence of exclusive control, liability can be triggered only by notice of the dangerous condition. Finally, the Supreme Court stated in St. Mary's Gas Co. v. Brodbeck (1926), 114 Ohio St. 423 at 434: The gas company was not an insurer of the safety of the pipes or the meter under any and all circumstances, but was only obliged to exercise due care to install standard and suitable pipes and appliances, and to renew them when the same might be old enough to become unsafe. Any other rule would require the premises wherever gas is consumed to be inspected every day and every hour of the day. Neither the premises nor the appliances and instrumentalities were under the exclusive control of the gas company, and, without some showing of knowledge of a defective condition, or of facts reasonably calculated to put the gas company upon inquiry, the exercise of due care does not require frequent inspections of premises where natural gas is consumed. Escaping natural gas is a condition which can be as readily detected by the consumer as by the distributing company. (Emphasis added.) - 14 - Furthermore, the Supreme Court has held in Thomas v. Trust Co. (1910), 81 Ohio St. 432, that: 2. Usage or custom cannot create a contract of liability where none otherwise exists. ***. (Emphasis added.) We conclude, on the basis of the foregoing cases and the absence of contrary precedent, that there is no common law duty of a private gas company to inspect the gas delivery system of a private landowner at the time of the original hookup. Finally, we address appellants' claim that the lease did not absolve Dry Hole of liability. Upon review of the exculpatory language in the lease we find that it further insulates Dry Hole from liability because it places the burden of maintaining the system on Weiss. The contract is not vague or against public policy because it placed the burden on Weiss to maintain his own gas delivery system, which was under his exclusive control. Applying the standards of Civ. R. 56(C), we find that the trial court's grant of summary judgment in favor of Dry Hole was proper in that Dry Hole had no duty to Weiss, and was not strictly liable for the operation of its natural gas well. Appellants' assignments of error against Dry Hole are not well taken. The decision of the trial court is reversed insofar as it relates to the constitutionality of R.C. 2305.131. Brennaman v. R.M.I. Co., supra, determined R.C. 2305.131 to be unconstitutional, and we are mandated to follow that decision. - 15 - Judgment affirmed in all other respects. - 16 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .