Mississippi Court Snuffs Out Plaintiffs’ Fading Hopes of Surviving Summary Judgement in Odorant-Fade Case

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As experienced fire litigators may know through case experience or study, the tell-tale, cloying ‘rotten egg’ smell signals a gas leak. Propane and natural gas are naturally colorless, odorless and tasteless, which is why federal regulations require natural gas companies to inject ‘odorants’ into gas lines (49 C.F.R. § 192.625(a)). What is perhaps less well-known is the phenomenon called ‘odorant fade,’ which is, as the name suggests, the reduction of concentration of odorant to a level where the gas is no longer detectable by smell. Odorant fade is often times the result of oxidation or adsorption when odorized natural gas migrates through soil.

Such was the case for the Elliot family of Holly Springs, Mississippi in 2008. A natural gas pipe-line rupture underneath their property released significant amounts of natural gas into their home, building up to sufficient quantity to allow for a fire in a bedroom to quickly escalate into an explosion which killed two members of the family. None of the Elliots remembered smelling the gas before the fire or explosion. In their resulting lawsuit, the Elliots sued the manufacturer of the odorant, the distributor of the odorant, and the company that operates the natural gas pipeline that ultimately feeds into the local utility in Holly Springs. All three of these defendants moved for summary judgment.

The High Court ultimately ruled in favor of the defendants dismissing the case, holding that the plaintiffs failed to show that the distributor and pipeline operator had a duty to warn and, concomitantly, that the odorant itself was defective. This is despite the defense expert testifying that he, himself, was unaware of the concept of ‘odorant fade.’ While this case may not hold significant precedential value, given the rather particular fact pattern, it highlights the need to stay current, both individually, and collectively, on the state of investigative techniques and phenomena.

 

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