Propane & the Law
Indiana Court Rejects Odor Fade Claim in Home Explosion Case
An Indiana appellate court found evidence of proper gas odorization & ruled the utility had no duty to warn under the circumstances
David Schlee is an attorney practicing in Kansas City, Missouri. He has been representing propane and natural gas distributors in fire and explosion litigation since 1986 and has authored BPN’s Propane & the Law column since September 1989. He can be reached at dschlee@dschleelaw.com.
Odorant issues continue to arise in litigation against gas distributors. The latest example comes from Indiana, where on Feb. 20, an appellate court affirmed summary judgment in favor of a natural gas utility in a case arising from a gas leak and subsequent explosion. The case is Miller v. Indiana Gas Company.
Massive Explosion
In the early morning hours of May 19, 2019, Janet Phillips awoke to get ready for work. She flipped a light switch in the basement of her house in Jeffersonville, Indiana, and there was a massive natural gas explosion. The house was leveled, and her husband, Billy, was killed. She sustained grave personal injuries. In addition, the home of her neighbor, Carla Miller, was damaged, and Miller was injured.
Lawsuits were filed by both Janet Phillips and Carla Miller against multiple parties, including Indiana Gas. It appears that Phillips settled with all defendants, and Miller settled with all defendants except Indiana Gas. Miller’s claims against the gas company consisted of the usual shotgun blast: product liability, negligence, negligent hiring, negligent training, negligent supervision, negligent retention and negligent failure to warn. For good measure, Miller added that Indiana Gas “has an unsafe and aging pipeline distribution network, which is inaccurately mapped, poorly maintained and predisposed to corrosion, leaks and system failures.”
Indoor Leak
The evidence, however, demonstrated that the leak that caused the explosion was not in Indiana Gas’ distribution system. The underground service line from the gas main to the Phillips house was pressure-tested — no leaks. An outdoor gas leak survey was conducted around the house. This included bar hole testing (making a hole in the soil and testing for gas using a handheld detector), as well as walking along the gas main and checking cleanouts and sewer manholes using a special sensing unit to detect gas. No leaks were detected.
The leak was clearly in the customer’s gas system inside the Phillips house. There was a gas meter that recorded hourly readings of gas usage inside the house. After the incident, data was pulled from this meter. It showed extraordinary usage, starting the day before the incident. Starting at about 2 p.m. on May 18, gas at more than 400 times the normal amount of gas usage began passing through this meter.
Uncapped Line
The reason for this excess usage was readily apparent when the gas piping inside the house was examined. There was an uncapped gas line. An engineer retained by Indiana Gas concluded that a cap had been removed from this line on the previous afternoon:
“The condition of the open piping after the incident (i.e., rusted but undamaged with pipe dope further up on the threads) is consistent with the removal of the cap. A properly tightened cap would likely have required use of a tool to remove it from the pipe. This evidence is consistent with someone intentionally removing the cap from the gas piping at approximately 3 p.m. on the day prior to the incident.”
Removal of this cap would require human intervention — two wrenches, one to hold the pipe nipple and the other to unscrew the cap. The evidence clearly pointed to removal of the cap, with an immediate large volume gas leak, on the afternoon before the explosion.
On the day before the incident, Billy and Janet Phillips both worked in the yard from around 8 or 9 a.m. until 3 or 4 p.m. When Janet finished working in the yard, she left the residence to go to the grocery store and get gas for her car while Billy remained home alone. Janet later testified during her deposition that she never smelled natural gas in her home prior to the explosion even though tremendous levels of natural gas began leaking into their home over the 13 hours prior to the event.
Evidence of Odorization
From time to time, Billy completed plumbing, electrical, painting, drywall and flooring projects around the home, and he kept tools at the house. Billy was the only individual at the house from approximately 3 to 4 p.m. on the day before the explosion.
Since he died in the explosion, there was no direct evidence of what he did in that hour. However, he was the only one present when the cap was removed from the gas line, and he apparently had the tools to do it.
Indiana Gas had no one present at the Phillips house and had no notice of removal of the cap from the gas line. So, the case narrowed down to the odorization issue. Here, the evidence of proper odorization was substantial. First, gas was smelled by multiple witnesses at the gas meter of the Phillips residence immediately after the explosion. Second, odorant tests were conducted at multiple locations near the residence, and these tests confirmed proper odorization. The Indiana Utility Regulatory Commission, the regulatory body responsible for overseeing Indiana Gas’ compliance with all applicable regulations, determined that “the odorant levels are within the acceptable range.”
Odor Fade
This, of course, did not end the matter. Miller raised the issue of odor fade. However, an expert for Indiana Gas refuted this, stating:
“The gas to [the Phillips residence] on May 19, 2019, was delivered through a steel main and plastic service line that had been in service for over 18 years. Odor fade is not an issue with pipe that has been exposed to odorized gas for years. ... There is no evidence that odor fade was occurring in the gas going to [the Phillips residence]. There is ample evidence that odor fade was not occurring … in the area.”
As to whether Janet could smell the gas, Indiana Gas highlighted evidence that Billy smoked marijuana in the house daily and that there were a dog and cat in the home, all of which could have masked the odor of gas.
Indiana Gas filed a motion for summary judgment, and on March 25, 2025, the trial court granted that motion. It found there was no genuine issue for a jury, and Miller appealed.
On appeal, Miller argued there was a genuine issue for a jury on whether the gas delivered to the Phillips residence was properly odorized and whether Indiana Gas failed to provide warnings about odor fade.
No Duty to Warn
The appellate court ruled that once Indiana Gas presented its evidence of proper odorization, the burden shifted to Miller to come forward with evidence to create an issue for the jury. The only evidence she had was the testimony of Janet Phillips that she did not smell gas. This, the court said, was not enough:
“Even if Janet did not smell gas in the residence prior to the incident, this merely establishes that she did not smell gas, not that it was not properly odorized under the federal regulation, which was the material fact at issue.”
The court then turned to the warning issue. It held that, in the circumstances presented, Indiana Gas had no duty to warn Janet and Billy Phillips about odor fade:
“Because these pipes had been exposed to natural gas for years, odor fade was not an issue. Indiana Gas also designated evidence that there are no state or federal regulations that require it to notify customers about odor fade. In response, Miller did not designate any evidence that odor fade was implicated in the incident. … Because Indiana Gas’ designated evidence established that odor fade was not implicated in the incident, and Miller designated no evidence to oppose this, there was no genuine issue of material fact regarding the duty to warn of odor fade.”
The Court of Appeals therefore affirmed the judgment of the trial court dismissing the case. However, that may not be the end of the matter.
On June 18, the Supreme Court of Indiana, in its discretion, allowed Miller’s case to be appealed to that court. So, the Court of Appeals decision is not final, and there will likely be a decision from the state Supreme Court in a year or two.
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