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03/17/95 MIKE CASEY v. EMMETT ESTES AND JACQUELINE

March 17, 1995

MIKE CASEY, ET AL.
v.
EMMETT ESTES AND JACQUELINE MARBUT



Appeal from Etowah Circuit Court. (CV-92-957). Donald W. Stewart, TRIAL JUDGE.

Released for Publication June 27, 1995.

Butts, Almon, Houston, Kennedy, and Ingram, JJ., concur.

The opinion of the court was delivered by: Butts

BUTTS, JUSTICE.

The plaintiffs, Mike Casey; his wife, Jane Casey; and his father, Jerry Casey, appeal from a summary judgment entered in favor of the defendants, Emmett Estes and his daughter, Jacqueline Marbut. *fn1

On December 16, 1991, the Caseys were injured by a flash fire that erupted when Mike and Jerry Casey attempted to light a propane gas space heater located in the bathroom of a house that Mike and Jane Casey were renting from its owner, Emmett Estes. Mike and Jane Casey sued Estes and Marbut, alleging that they had suffered injury because, they said, Estes had misrepresented to them that the gas system was safe. They sought damages for personal injuries and loss of consortium they claimed had been caused by the flash fire. The Caseys amended their complaint to add a premises liability claim, alleging that Estes, as their landlord, was liable for their injuries and that Estes had negligently inspected the gas line in the rental house. Blue Cross and Blue Shield of Alabama, the Caseys' insurer, moved to intervene, and the trial court granted the motion. The Caseys then amended their complaint to add Jerry Casey as a plaintiff; he sought damages for his personal injuries under the premises liability and negligent inspection claims.

The defendants moved for a summary judgment on all counts; the trial court granted the motion, without specifying its reasons. The Caseys appeal from the summary judgment as to the premises liability and negligent inspection claims.

On a motion for a summary judgment, the movant has the burden to make a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. See, also, Willingham v. United Insurance Co. of America, 642 So. 2d 428 (Ala. 1994), and the cases cited therein. Until the moving party has made a prima facie showing that there is no genuine issue of material fact, the burden does not shift to the opposing party to establish a genuine issue of material fact. Willingham, supra. This case was filed after June 11, 1987; accordingly, the "substantial evidence rule" applies to the ruling on the motion for summary judgment. In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence creating a genuine issue of material fact. Ala. Code 1975, § 12-21-12; Betts v. McDonald's Corp., 567 So. 2d 1252 (Ala. 1990). "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).

Estes built the rental house himself about 15 years ago. It was originally heated by only a fireplace. He later installed a heating system that consisted of three space heaters and a propane gas tank located outside the house, with a main fuel line running from the tank into the house, where it provided fuel to the heaters. Estes's granddaughter and her husband, Donna and Scott Smith, later moved into the rental house and replaced the tank and the three-year-old space heaters with two new space heaters. Scott Smith installed a second fuel line, which ran from the main line to provide fuel to a gas clothes dryer, which was located in the bathroom. This second line, which was above-ground and clearly visible, was connected to the main line and turned at a right angle to the dryer connection.

The Smiths lived in the house for three years and while there had no problems with the propane gas system. When they were preparing to move from the house and the Caseys were preparing to move into the house, Scott Smith disengaged the second gas line, which supplied the gas dryer, at the dryer connection. According to Smith, he also disengaged the other end of the second fuel line from the "T" and capped it, so that the gas line leading to the dryer was not attached to the fuel tank outside. However, that fact is disputed.

After Donna and Scott Smith vacated the premises, Estes and Scott Smith visually inspected the gas pipes; they discovered no defects. Scott Smith performed what is known as a "soap test" on the fittings of the space heaters. A "soap test" is performed by spraying suds around the heater fittings and watching to see if bubbles develop; bubbles would indicate a gas leak. Scott Smith also lit a match under the space heaters to check for leaks, but found none.

Mike and Jane Casey rented the house in May 1991. At that time, Scott Smith told Mike Casey that he could use the propane gas remaining in the tank outside, if he wanted to light the two space heaters. However, Estes did not discuss the gas system at any time with the Caseys, nor did he give them permission to use the tank. The Caseys installed an electric dryer and installed a large wood-burning stove to heat the house.

On December 19, 1991, the Caseys decided to light the two space heaters. They asked Jerry Casey to come over and help them turn on the gas line at the tank. Jerry Casey went outside and turned on the gas from the tank, then came inside and lit the space heater in the bedroom; that heater was fueled by gas from the main line. He and Mike Casey then went into the bathroom to light the heater there, which was also fueled by gas from the main line and not from the secondary line that had formerly fueled the gas dryer. When Jerry struck a match, a flash fire erupted and flamed out into the bedroom, injuring all three Caseys.

The Caseys first allege that this evidence creates a jury question as to whether Estes, as their landlord, was liable for their injuries. However, in the absence of a covenant to repair the defect that caused the injury, a lessor is liable only for injuries resulting from latent defects known to the lessor at the time of the leasing and which the lessor concealed from the tenant. Allen v. Knotts, 514 So. 2d 955 (Ala. 1987). A landlord has no duty to inspect for latent defects, i.e., defects that are hidden or concealed, or which can not be ...


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