Wankel v. A&B Contractors, Inc.

HOLLANDER, Judge. This complex tort case arises from a gas explosion that destroyed one home and damaged another in a Gaithersburg subdivision known as “the Kentlands.” The explosion spawned litigation involving multiple parties and a host of claims, cross-claims, and third party claims. ¹³³ Early on the morning of January 21, 1994, Mary J. Wankel, appellant, and her fiancé, Daniel I. Wilcox, appellant, were sleeping in the upstairs bedroom of Wankel’s home, located at 110 Beckwith Street, when they were awakened by an explosion. Wilcox ran to the landing on the second floor and discovered that the first floor of the house was engulfed in flames. The couple soon realized that the only means of escape was through the bedroom window.

Wankel and Wilcox were injured when they jumped from the second story to the frozen ground below. As they watched from a neighbor’s porch, their house burned to the ground. The explosion also damaged the home of Wankel’s neighbors, Karen and George Gouzoulis. Ms. Gouzoulis, appellant, was injured by the fire.

As a result of the explosion, Wankel’s insurer, State Farm Fire and Casualty Co. (“State Farm”), appellant, paid Wankel $253,264.08 under Wankel’s homeowner policy for the damage to her residence. In addition, State Farm paid $163,950.00 to Wankel for personal property losses, and $25,943.71 in “additional living expenses.” Nationwide Mutual Fire Insurance Co. (“Nationwide”), appellant, the Gouzoulis’s insurer, paid $11,699.65 for repairs to the Gouzoulis’s dwelling, located at 102 Kent Oaks Way. On January 16, 1997, Wankel, Wilcox, Ms. Gouzoulis, State Farm, and Nationwide filed a five-count complaint 1 in the Circuit Court for Montgomery County against various defendants who were involved in the construction of the Wankel home. Specifically, appellants sued the following entities: D.R. Horton, Inc. (“Horton”), appellee and cross-appellant, the general contractor of the Wankel home; Great Seneca Development Corporation (“Great Seneca”), cross-appellee, the developer of the Kentlands Community; Wright Excavating, Inc. (“Wright”), cross-appellee, a subcontractor that performed excavation and grading work on the property for Horton; A & ¹³⁴ B Contractors, Inc. (“A & B”), appellee and cross-appellee, a subcontractor that repaired the silt fence 2 around the property for Horton; Redland Genstar, Inc. (“Genstar”), crossappellee, a subcontractor that paved an alleyway near the Wankel home for Great Seneca and paved a driveway for Horton; and Triangle Landscapers, Inc. (“Triangle”).

In their suit, appellants claimed that a wooden stake used for the silt fence was driven into the ground during the construction process, puncturing a natural gas pipeline. According to appellants, gas then leaked from the pipeline, made its way into the house, and exploded when it came in contact with an unknown heat source. In March and April of 1997, the defendants lodged a flurry of cross-claims. 3 Of particular importance to this appeal, Horton filed cross-claims against Wright, A & B, Great Seneca, Genstar, and Triangle, seeking recovery on theories of indemnity and contribution. Thereafter, Horton impleaded Keith Dodson, 4 individually and doing business as Ravenwood Associates (“Ravenwood”), in connection with the installation of the silt fence on the Wankel property.

Dodson answered Horton’s third party complaint on October 10, 1997. Appellants explain that by the time they realized Dodson was the original installer of the silt fence, they could not amend their ¹³⁵ complaint to add him as a defendant, because the statute of limitations had expired as to Dodson. Nevertheless, they contend that Horton is responsible for Dodson’s alleged negligence. By July 1997, Triangle was dismissed from the case, after it filed a motion for summary judgment that was not opposed.

Triangle had claimed that its work on the Wankel property was limited to planting shrubs and mulching a flower bed in the front yard. The court limited the first phase of discovery to the issue of liability, with a completion date of January 80, 1998. In a Second Amended Scheduling Order entered on January 5, 1998, the court also ordered that “Liability Motions, except for Defendant, Ravenwood, shall be filed by Jan. 30, 1998.” Thereafter, on January 28, 1998, appellants moved to voluntarily dismiss Great Seneca, Wright, and Genstar, which Horton opposed. Defendants Great Seneca, Wright, Genstar, Horton, and A & B subsequently filed motions for summary judgment.

In an order dated March 25, 1998, the circuit court granted appellants’ motion to dismiss. The court also granted summary judgment in favor of Horton and A & B, concluding that appellants failed to prove that either party proximately caused the explosion. It also granted summary judgment in favor of Great Seneca, Wright, and Genstar with regard to the cross-claims of Horton and A & B. On appeal, appellants present a single issue: Did the plaintiffs present sufficient evidence to create a question of fact as to whether Horton and/or A & B’s conduct was a proximate cause of their injuries and damages? Horton noted a cross-appeal, challenging the court’s denial of its motion for summary judgment, because appellants failed to present expert testimony as to the standard of care of a contractor.

Horton also complains about the dismissal of its cross-claims, and seeks to “preserve a right to revive the ¹³⁶ cross-claims if necessary after resolution of this appeal.” It presents the following question: Did the lower court correctly rule that Plaintiffs presented legally sufficient evidence (including expert testimony) to permit a jury to conclude that Defendant Horton breached a duty of care owed to Plaintiffs? In reply to Horton’s cross-appeal, Wright, Great Seneca, Genstar, and appellants (as cross-appellees) filed separate briefs raising various issues of their own. We have set forth below the issues raised by each cross-appellee: Cross-Appellee Wright: I. Since there was no evidence from which a trier of fact could reasonably infer that Wright excavating was responsible for driving “the stake” down into the ground, was the trial court’s decision to grant Wright Excavating’s motion for summary judgment on D.R. Horton’s cross-claims legally correct?

II

Was the trial court’s decision to grant Wright Excavating’s motion for summary judgment on D.R. Horton’s cross-claim for indemnification legally correct?

III

Was the trial court’s decision to grant Wright Exeavating’s motion for summary judgment on D.R. Horton’s cross-claim for contribution legally correct? Cross-Appellee Great Seneca: I. Whether the appeal of the court’s ruling on Horton’s cross-claim against Great Seneca is properly before this court.

II

Whether the court ruled that Horton’s cross-claim against Great Seneca is moot as a result of its granting summary judgment to Horton on plaintiffs claims. Cross-Appellee Genstar: Did the lower court properly enter summary judgment in favor of Redland Genstar, Inc.? ¹³⁷ Cross-Appellees Wankel, Wilcox, Gouzoulis, State Farm, and Nationwide: I. Did the trial court correctly conclude that the Plaintiffs had produced evidence concerning Horton’s duty and its breach of that duty?

II

Did the trial court correctly conclude that the Plaintiffs’ standard of care expert was qualified to express the opinions elicited from him? In addition, Great Seneca, Genstar, and Wright have moved to dismiss Horton’s cross-appeal. Great Seneca and Genstar contend that the court granted summary judgment as to Horton’s cross-claims on substantive grounds, not merely because Horton’s cross-claims became “moot” when the court granted judgment in Horton’s favor with regard to appellants’ claims. Citing Md. Rule 8-602(a)(7), which permits dismissal of an appeal when a party fails to submit a timely brief, they urge dismissal of Horton’s cross-appeal, for failure to address the substantive grounds on which the court resolved the cross-claims.

For its part, Wright seeks dismissal of Horton’s cross-appeal, pursuant to Rule 8-504(a)(5), because Horton failed to address the substance of the court’s ruling on summary judgment as to Wright. On January 22, 1999, less than two weeks before oral argument, Horton filed a Motion for Leave to Supplement Brief. Great Seneca, Wright, and Gens-tar all oppose Horton’s motion to supplement. That motion is pending.

For the reasons that follow, wé shall affirm. To be sure, the occurrence was extremely unfortunate. But, a plaintiff cannot recover based on sympathy. We agree with the trial court that appellants failed to show that any of the defendants proximately caused appellants’ injuries.

It follows that we need not consider the issues relating to Horton’s cross-appeal or Horton’s motion to supplement its original brief. 5 ¹³⁸ Factual Background Our factual recitation derives from the pleadings and the evidence produced in connection with the motions filed by appellees and cross-appellees. To the extent there is any factual dispute, we have cast the facts in the light most favorable to appellants. In March 1992, Wankel entered into a contract with Horton to purchase a “Betsy Ross” model home, to be constructed on Lot 27A of the “Kentlands” development in Gaithersburg. It is unclear, based on the record, whether Horton acquired the lot from Joseph Afandre, the original developer of the Kent-lands, or from Great Seneca. 6 In any event, on June 23, 1992, Horton applied, as the general contractor, for a building permit to construct the Wankel house.

Wankel’s house faces Beckwith Street; the garage is located on the southeastern corner of her property. Lot 27A is rectangular in shape, 99 feet long and 46 feet wide, and is situated so that its narrower, northern end faces Beckwith Street. A paved common-use alley runs along the 99 foot southern edge of the lot, and then turns along the rear edge of the property, providing access to the garages of homes on Beckwith Street. Redland Genstar, a subcontractor for Great Seneca, paved the alley in October 1991.

In July 1992, Horton hired Wright to excavate and backfill the foundation of the Wankel house and garage. In its answers to appellants’ interrogatories, Wright averred that it ¹³⁹ spent two days in July 1992 working on Lot 27A; Wright spent one day “digging the foundation and stockpiling dirt on an adjacent lot with a 958 Front End Loader ....”, and another day placing dirt around the foundation of the house, using the Front End Loader to “rough grade the yard.... ” Invoices submitted to the court by appellants indicate that Wright’s initial work was completed on July 8, 1992, and the backfill operations were completed on July 26, 1992. Wright claimed that it returned to Lot 27A on November 19, 1992, in order to “final grade the yard for seeders.” Then, on November 24, 1992, Wright loaded excess dirt from lots 27 and 28 onto trucks that were parked on Beckwith Street. On July 14, 1992, during the course of Wright’s work, Horton’s site superintendent, John Buffet, contacted “Miss Utility” to advise that it intended to excavate Lot 27A.

He made the report pursuant to the “underground facilities” provision of the Maryland Code. See Md.Code (1957, 1991 Repl.Vol.), Art. 78, § 28A. A computer printout memorializing Buffet’s call indicates that he gave notice that Horton intended to build a garage on the southeastern corner of the lot. 7 Invoices submitted by appellants indicated that Dodson installed 320 feet of silt fence on Lot 27A on August 3, 1992, and an additional 50 feet of silt fence on September 15, 1992. The invoices do not specify where within Lot 27A the fencing was installed.

At his deposition, Dodson testified that Buffet, Horton’s site manager, instructed him to install the fence along the edge of the asphalt alleyway on the long side of the lot, in order to prevent soil erosion into the alleyway. At the time, the area was marked by yellow flags indicating an underground gas line. Dodson testified that while he did not know how deep the gas lines were located in this particular ¹⁴⁰ area, gas lines, in his experience, are generally buried three feet underground. The following portion of Dodson’s deposition testimony, which was submitted to the court by the appellants, is pertinent: COUNSEL FOR APPELLANTS: I may have asked you this: Mr. Buffett told you where to put the silt fence?

DODSON: Yes. COUNSEL FOR APPELLANTS: Did he tell you to put it up against the alley, the paved alley? DODSON: Yes. COUNSEL FOR APPELLANTS: Okay.

And you were aware at the time that you were putting it over ostensibly what was the gas line; is that correct? COUNSEL FOR DODSON: Objection. I’m — I think that’s kind of a trick question, because — wait a minute. You’re indicating that he’s ostensibly putting it over the gas line.

Why don’t you ask him how far the gas — the gas line was from the edge of the asphalt, at least as far as the markings indicated to him? Because you’re having him put it over. COUNSEL FOR APPELLANTS: Did you know exactly where the gas line was located when you put that silt fence up? COUNSEL FOR DODSON: Go ahead.

You can answer. DODSON: Okay. Yeah. COUNSEL FOR APPELLANTS: Where was it located?

DODSON: On the ground right there. COUNSEL FOR APPELLANTS: Right there next to the alleyway, correct? DODSON: Yes. COUNSEL FOR APPELLANTS: Did you know generally where [the gas line] was— DODSON: Yeah. ¹⁴¹ COUNSEL FOR APPELLANTS: —beneath the ground?

Where? DODSON: Where the little yellow marks were. COUNSEL FOR APPELLANTS: All right. And did you know generally how deep it was in the ground?

DODSON: Yeah. COUNSEL FOR APPELLANTS: How deep? DODSON: Approximately three feet. COUNSEL FOR APPELLANTS: How do you know that?

DODSON: Because I’ve been doing it for 15 years and I’ve seen a million of them. Dodson further testified at his deposition that the silt fence stakes that he used measured 1” x 2” x 42”. Later, Dodson averred, in an affidavit, that he “may have also installed silt fence across the rear of Lot 27A.” Several other witnesses, including Wankel, corroborated that the silt fence encompassed the rear portion of the property. On October 23, 1992, Horton hired A & B to perform repairs to the silt fence that Dodson had previously installed.

Tom Atkins and Burt Leffingwell, employees of A & B, worked on the repairs for Lot 27A. At his deposition, Atkins testified that A & B used stakes measuring 2” x 2” x 42”. He also said that silt fence stakes generally come already stapled to the silt fencing with one and one-half inch staples. Further, he estimated that when a silt fence stake is driven into the ground, it reaches a depth of approximately ten inches.

Ordinarily, A & B’s stakes are made of a hard wood, such as oak, but the wood type varies depending on what is available on the market. Atkins also stated that, as far as he knew, A & B was not required to contact “Miss Utility” before installing silt fencing. Atkins testified that, on occasion, A & B is retained to repair a “blowout” of silt fencing. Atkins explained: If the silt fence is, say, blown out — what I mean by blown out is, there’s been heavy runoff, and the silt fence itself is bellied, sometimes I have to get in there and dig out the ¹⁴² area, throw it back, disperse it so the silt fence is not weakened, and maybe go in and put a stake there, and drive the stake down and then staple the stuff back up.

Then other times the silt fence may be torn. Say two pieces are torn, torn apart and laying there, then we may have to put in a stake there, put the two together, and staple it back up. Leffingwell recalled that A & B performed a repair of a “blowout” in the rear left corner of Lot 27A. Leffingwell testified that the portion of the fence he repaired was “right along the edge of the asphalt” of the paved alleyway.

On a date not entirely clear from the record, Horton arranged for removal of the silt fencing. Robert Richter, Horton’s corporate designee, could not recall whether the fencing was removed before or after Wankel moved into the house, nor could he remember who performed the removal. Richter testified that Horton would have utilized a “labor service” for the work. Wankel moved into her home on November 30, 1992.

More than thirteen months later, on January 21,1994, the house was destroyed by the explosion and fire that we previously described. At the time of the accident, the temperature was quite cold and the ground was frozen. After the explosion, representatives of the Montgomery County Fire Marshal’s office, Washington Gas Company, and an investigator from the Maryland Public Service Commission’s Gas Pipeline Safety Program, responded to the scene. Public Service Commission investigators took “bar hole readings” 8 of the property, which indicated that natural gas had permeated the ground around the house.

Representatives of Washington Gas conducted “pressure tests” of the gas lines that serviced 110 and 114 Beckwith Street. The pressure ¹⁴³ tests indicated a leak from a two inch plastic distribution line under the rear alley. When the area around the suspected leak was excavated, the workers discovered a 3/4” hole in the top of the pipe, which was buried at a depth of 39” below the surface. They also discovered a wooden stake in the ground at a depth of 34 inches, which measured 2” x 2” x 38”.

The stake was located just outside the boundary of Wankel’s property, next to the paved alleyway. A “Gas Pipeline Failure Investigation” report prepared by the Public Service Commission stated: 3/4” hole in top of pipe made by 1.5” by 1.5” sharpened wooden stake. Pipe depth 39”. Stake was measured at a depth of 34” during excavation, but had already been disturbed by backhoe and subjected to air pressure in pipe.

The report drew the following conclusion: Freezing of the ground probably moved the stake upward away from the gas pipeline allowing natural gas to escape from the pipe. The ground temperature was 32 F at the installed pipe depth of 39”. The gas migrated under the garage slab and porch slab into the house and was ignited by an unknown source. At his deposition, William Hinde, a corporate designee of the Washington Gas Light Company, described the process by which the stake was unearthed: COUNSEL FOR HORTON: Why don’t you just tell me, if you can, how the gas company excavated the stake that day.

HINDE: Once we had determined the most probable location of — of the leak, we excavated — we took the very first four to six inches up with— COUNSEL FOR HORTON: Four to six inches of what? HINDE: Soil, dirt, ice, gravel, earth materials, up with a backhoe. And then the remainder of the excavating was done by hand with using — by hand — using pneumatic air tools, because the ground was so hard. ¹⁴⁴ COUNSEL FOR HORTON: When you removed the first four to six inches of earth material with the backhoe, was the stake visible at that time? HINDE: No, it was not.

COUNSEL FOR HORTON: So the stake was completely underground; is that correct? HINDE: Yes. COUNSEL FOR HORTON: Do you recall at what point the top of the stake became visible? HINDE: We had excavated down approximately a foot and a half or so.

And what you do is you start with a small hole and you work your way out using both air tools and a manual tunneling bar. And as they were knocking the bank down, the stake became visible. In excavating we took the first four to six inches up. We expanded the hole.

And in expanding the hole we moved over into ground that had not been previously disturbed with the backhoe and knocked — sheared that wall off. It’s a common excavating practice. And in shearing that wall down is when we came upon the stake. COUNSEL FOR HORTON: Okay.

So the earth material you removed with the backhoe was not over top of the location where you found the stake? HINDE: It was not directly over. COUNSEL FOR HORTON: All right. I’m with you.

So, actually, the stake was uncovered by the use of digging bars and shovels when you were taking down the wall of the hole you were trying to create? HINDE: Yes. * * * COUNSEL FOR HORTON: And I assume that you eventually hand dug all the way down until you got to the depth of the gas line; is that correct? ¹⁴⁵ HINDE: Yes. COUNSEL FOR HORTON: Were you literally standing over the hole when the gas line was unearthed? HINDE: Yes.

COUNSEL FOR HORTON: Did you observe the stake actually sticking in the gas line? HINDE: No, I did not. COUNSEL FOR HORTON: Did anybody present at the scene tell you that the stake was actually sticking in the gas line? HINDE: No, they did not.

When asked if he knew of any similar incidents in which a stake has been driven into a plastic gas line, Hinde responded: “It has — it has happened before.” But, Hinde was unable to specify when or how often he had observed the phenomenon. In its report, the Montgomery County Fire Marshal’s office concluded that “the fire was on the first floor, based on the interviews of neighbors and the observation of the writer on his arrival.... ” Further, the report indicated that “the cause was a natural gas leak.” Walter Rothfuss, of Rothfuss Engineering Co., investigated the accident on behalf of Washington Gas. In a report completed on April 21, 1994, Rothfuss concluded that the gas leak was caused by “the penetration of a line by a wooden stake most probably used as a grade stake.” (Emphasis added). Rothfuss wrote: Weather conditions on the day of the incident, and for some days prior to the fire were extreme.

Single digit temperatures were common. There was an ice cover over the area. It was noted that the temperature of the soil at the depth of the distribution line was at freezing (32 degrees F). This condition would affect the flow of gas leaking from the distribution line.

Under less frigid conditions the gas would naturally rise, find its way through the soil, and be dispersed in the atmosphere. When the moisture in the ground has frozen and the ground has an ice covering, the ¹⁴⁶ gas is prevented from percolating up through the soil and seeks the path of least resistance through the soil. It is quite possible that this path was along the electric, telephone or CATV lines which lead from the area where the stake was discovered toward the SW elevation. From this point the gas could have entered the foundation of the structure by seepage through the foundation wall, or entering through the foundation drainage system into the basement sump.

From this point it would migrate through the house. Ignition of the migrating gas could be accomplished by any of the various naturally occurring sources of ignition found in the home. Any electrical arc from contacts on motors, or standing pilots on gas appliances, or even furnace thermostats would suffice. It was discovered that the gas distribution line under the alley at the rear of the structure had been penetrated by a wooden stake.

The length of this stake and the attached piece of black plastic material indicates that this stake was at one time used for silt fencing. It was also reported by Dr. Millman that a silt fence was indeed placed in the alley. This was the only leak site found for natural gas in this area, which was verified by pressure testing after the leak was repaired. The Montgomery County Soil Conservation Department states that the erosion control (silt) fencing is required to be 2 feet wide on a 36 inch stake.

It further requires that 4 inches of the fencing fabric should be placed below grade, which results in a 16 inch penetration of the surface by the stake. Since there was approximately 27.5 inches of soil covering the distribution line under the asphalt and gravel sub-base it is improbable that this leak was the result of the placement of the silt fence unless there had been a substantial fill placed prior to the final grading or the stake had been driven deeper underground my some other means. (Emphasis added). Rothfuss was later named an expert for the appellants.

During his deposition, Rothfuss testified “at one time,” the ¹⁴⁷ “offending stake” found at the scene was a silt fence stake, because it had a “small fragment of silt fence fabric still attached by a staple”. Indeed, a photograph attached by appellants to their opposition to Horton and A & B’s motion for summary judgment depicts strands of fabric affixed to the wooden stake recovered from the scene. Rothfuss theorized, however, that the stake may have been utilized as a grade stake sometime after its use as a silt fence stake. When asked if he would state an opinion at trial as to whether the stake was used as a silt fence stake immediately prior to perforating the gas line, Rothfuss responded that he would not.

Rothfuss conceded that, despite the conclusion stated in his written report, he could not opine as to how the stake penetrated thirty-nine inches below the surface. The following testimony is relevant: HORTON’S COUNSEL: [A]re you going to opine in this case that [the stake] was serving as a silt fence stake immediately prior to perforating the gas line? ROTHFUSS: No, because it apparently had not. There was only a small fragment of silt fence fabric still attached by a staple to the stake.

HORTON’S COUNSEL: Do you have an opinion, sir, as to the likelihood that the stake identified on page ten of your report was or was not serving as a silt fence stake immediately prior to it perforating the line? ROTHFUSS: That, I don’t know. HORTON’S COUNSEL: And you’ll state no opinion at trial on that subject? ROTHFUSS: That’s correct, I will not.

HORTON’S COUNSEL: And you have no idea how [the stake] got down to the 39 inches below grade where it was found on the day after the fire? ROTHFUSS: I agree. ¹⁴⁸ HORTON’S COUNSEL: And you’ll state no opinion one way or the other in that regard at trial? ROTHFUSS: That is not my intent. HORTON’S COUNSEL: In other words, you will not?

ROTHFUSS: I will not. HORTON’S COUNSEL: During the course of your developing your opinions in this case, were you asked to consider anything in regard to relative probabilities between, say, the stake being driven into the ground by some kind of piece of equipment or being excavated to the gas line and left in the ground in some backfill scenario? Were you asked to consider either of those? ROTHFUSS: No. HORTON’S COUNSEL: Were you asked to consider anything in regard to how that stake got in close proximity and perforated that gas line?

ROTHFUSS: That’s something everybody would like to know, but no, I haven’t been asked to do that. HORTON’S COUNSEL: In fact, that’s something you were asked to determine by the gas company and were unable to? ROTHFUSS: We followed a convoluted paper trail as far as we could. We were burning up a lot of money.

We told our client that this was getting nowhere. HORTON’S COUNSEL: And your conclusion was, at the end of that process, that it was indeterminate? ROTHFUSS: Yes. On January 28, 1998, two days before the close of discovery and liability motions, appellants sought leave to voluntarily dismiss Genstar, Great Seneca, and Wright, pursuant to Md. Rule 2-506(b).

Horton opposed the dismissal, however. 9 The ¹⁴⁹ motion to dismiss was still pending before the court when, on January 30, 1998, Horton and A & B filed motions for summary judgment, each seeking judgment as a matter of law as to appellants’ claims and the co-defendants’ cross-claims. On the same day, Great Seneca filed a motion for summary judgment against Horton and A & B. It argued, inter alia, that it was not liable to Horton or A & B for contribution or indemnification, because, as evidenced by appellants’ own motion to dismiss, appellants could not prove a prima facie case against Great Seneca. Furthermore, Great Seneca argued that it had no liability for any negligence of Horton or A & B, because both were independent contractors. Genstar and Wright also moved for summary judgment.

Wright argued that although it had excavated the foundation of the house and graded the yard, Wright “was never involved with the installation or removal of a silt fence” on the lot. Wright also sought summary judgment as to Horton’s cross-claims for indemnification and contribution, asserting that Horton had failed to furnish a contract entitling it to indemnification, and that no evidence of negligence could be attributed to Wright’s conduct. Similarly, Genstar moved for summary judgment as to Horton’s cross-claim, asserting that appellants were unable to show “who caused the stake to puncture the gas line, or when.” On February 12, 1998, appellants filed their opposition to Horton and A & B’s motions for summary judgment. With regard to A & B’s motion, appellants argued that a jury could ¹⁵⁰ conclude, based on Atkins’s deposition testimony, that the “offending stake” found near the puncture was left there by A & B. Appellants pointed to a portion of Atkins deposition in which he looked at a photograph of the stake found at the scene and opined that it was a silt fence stake, not a grading stake.

Appellants also claimed that A & B had an affirmative duty to call “Miss Utility” before repairing the silt fence. Moreover, they contended that whether the explosion was foreseeable was a question for the jury to determine. With regard to Horton’s motion, appellants contended that there was credible evidence that Horton or its subcontractor negligently placed the silt fence over the underground gas line. Appellants also asserted that expert testimony was not needed to establish Horton’s negligence.

In any event, they claimed that the testimony of Salvatore J. Ficarro, their “standard of care” expert, was sufficient. Moreover, appellants argued that it was for the jury to decide whether the actual cause of the perforation of the gas line was a “superseding intervening cause.” Ficarro, a “Construction/Civil Structural Consultant,” was employed by Rothfuss Engineering Company. He testified that, based on forty years of experience in the construction trade, Horton was negligent in installing a silt fence directly over a gas line. The following portion of Fiearro’s deposition testimony, which was provided to the court by appellants, is relevant: HORTON’S COUNSEL: The second opinion that you have here is that — I believe you start — it is negligent to install a silt fence over a natural gas distribution line.

And you say that is — are you saying it’s the duty of— FICARRO: It’s his [the general contractor’s] responsibility. HORTON’S COUNSEL: So he cannot — strike that. It’s his duty to supervise and see that that does not occur. Is that your point?

FICARRO: Correct. ¹⁵¹ HORTON’S COUNSEL: And what do you base that duty to supervise on, again, your own personal experience on the jobs you’ve been involved in personally? FICARRO: Correct. HORTON’S COUNSEL: Not on any understanding of what is standard operating procedure amongst the industry at large? FICARRO: Correct.

HORTON’S COUNSEL: Or within this locality? FICARRO: Correct. HORTON’S COUNSEL: And that’s the same for both the issue concerning contacting Miss Utility and supervision to assure that silt fences aren’t installed over natural gas lines? FICARRO: Correct.

HORTON’S COUNSEL: The third opinion here is that in removing it, one must take care to remove all the silt fence stakes. Again, you’re saying I have to supervise — my client has to supervise that? FICARRO: It’s his responsibility to see that it’s removed. HORTON’S COUNSEL: Okay.

And, again, he can’t delegate that— FICARRO: Oh, he can— HORTON’S COUNSEL: — to a subcontractor? FICARRO: He can delegate it. I’m not saying he can’t delegate it. HORTON’S COUNSEL: But that doesn’t relieve him of— FICARRO: It doesn’t relieve him of the responsibility.

If the county inspector comes out and it’s still there, the county doesn’t care if he told us — you know, some subcontractor to do it. The circuit court conducted a hearing on February 26, 1998. On March 25,1998, the court issued a thorough, eighteen-page memorandum opinion and order, which was docketed on March 30,1998. ¹⁵² Preliminarily, the court granted appellants’ motion to dismiss Great Seneca, Wright, and Genstar. It noted, however, that “the granting of [that] motion does not completely dismiss [those] parties from the case because of the cross-claims against them ...” Accordingly, the court considered the defendants’ various motions for summary judgment.

With regard to Great Seneca’s motion for summary judgment, the court noted that only Horton had opposed that motion. Horton argued that the “offending stake” was not found on the Wankel property. Therefore, a trier of fact could find that Great Seneca, but not Horton, was liable. The court ruled, however, that “the source and location of the stake” were not “material” to the dispute as between Horton and Seneca because, in either case, Great Seneca would not be liable to Horton.

The court explained: If a fact-finder concluded that the stake came onto the property after Horton bought the property and was within the province of Horton, Great Seneca is exonerated because the stake could not have come onto the property both before and after- Horton bought the property. However, if a fact-finder concluded that Great Seneca was responsible for the stake, then neither Horton nor Great Seneca would be liable because Plaintiffs have dismissed their claims against Great Seneca and Horton would not be in a posture to seek contribution from Great Seneca. The court then turned to Wright’s motion for summary judgment, which was opposed only by Horton. The court found “no evidence that Wright had anything to do with the stakes.” Consequently, the court rejected Horton’s argument that it was entitled to indemnification, because “[i]f a jury finds Horton negligent, it cannot be based on Wright’s actions.” Further, it ruled that Horton’s claim for contribution must also fail, because the right to contribution is based on a joint tortfeasor relationship between the defendants, which no longer applied as to Wright.

In addition, the court granted Genstar’s motion for summary judgment. Again, the court rejected Horton’s argument ¹⁵³ that it was entitled to contribution and indemnification from Genstar, because “[a]ll Plaintiffs and Defendants agree that no witness has testified to any negligent act or omission committed by Redland Genstar.” The court focused its analysis on Horton’s motion. The court noted that Horton moved for summary judgment on three grounds: 1) that “Plaintiffs must present expert testimony on standard of care and do not have a qualified expert;” 2) that “there is no factual evidence or evidence from which inferences may be drawn that Horton breached a duty;” 3) and that “if a breach did occur, it was not a proximate cause of the injuries suffered.... ” Ultimately, the court disagreed with Horton regarding the first two issues. Nevertheless, because it agreed on the third, it entered summary judgment in favor of Horton.

As we indicated, Horton complained that appellants failed to present an expert who could testify as to the applicable standard of care for a contractor. Appellants responded that an expert was not necessary, “either because a contractor is not a professional and his duties should be held to a reasonable person standard, or the negligence is grossly negligent and obvious.” Without expressing an opinion about whether an expert witness was needed in order to establish the standard of care of a general contractor, the court ruled that the credentials of Salvatore Ficarro, appellants’ named expert, were sufficient to qualify him as an expert “on the standard of care owed by general contractors.” Next, the court determined that, viewed in a light most favorable to the non-moving parties, there were genuine issues of material fact that could lead a jury to conclude that Horton, through its subcontractors, breached a duty owed to appellants. The court was satisfied that appellants presented circumstantial evidence that Horton, through Dodson, “had the offending stake installed over the gas line.” Furthermore, the court concluded that Horton and A & B were required to notify “Miss Utility” before making repairs to the silt fence, and opined that a violation of the “Miss Utility” statute “may ¹⁵⁴ provide evidence of negligence.” Therefore, the court found that appellants’ evidence with regard to A & B’s repair of the fence was sufficient to defeat Horton’s motion for judgment as to Horton’s breach of duty. The court also concluded that summary judgment was inappropriate because there was circumstantial evidence that Horton or its agents failed to remove all of the stakes when it removed the silt fence.

Nevertheless, the court ruled that appellants had failed to show that any of Horton’s acts were the proximate cause of the harm. First, the court evaluated the evidence under the “substantial factor test.” The court reasoned, in part: [I]t is undisputed that, regardless of Horton’s conduct, Plaintiffs would have not suffered harm from the existence of the offending stake but for a series of extraordinary events. Assuming that Horton was responsible for installing a stake over the gas line, the following subsequent events occurred to cause the explosion: the offending stake became separated from the silt fence fabric; the stake was not removed; the stake was driven into the ground; the stake, at the same time or some later time, hit the round pipe squarely enough and with enough force to crack the pipe; the stake, either at the same time or at some later time, came back out allowing the gas to leak; the unusual frozen cap developed over the ground stopping the escaping gas from harmlessly percolating through the ground; the gas followed the pipe toward the house; the gas entered the house; and finally, something ignited the gas. If any of these events did not occur in this exact sequence, then Plaintiffs would not have been harmed.

While it verges on speculation to say that Horton’s conduct created the series of forces that lead [sic] to the cracking of the pipe, the subsequent events cannot be considered continuous and active. The gas line was not damaged upon installation of the fence. The subsequent events occurred from natural forces of weather and unexplained actions by unknown persons. In addition, there was a large gap in time between Horton’s conduct and the ¹⁵⁵ explosion which occurred more than thirteen (13) months after Horton sold the house to Wankel.

Because of the “diaphanous nexus” between Horton’s negligence and the injury suffered by appellants, the court concluded that Horton’s negligence, even if proved, was not a substantial factor in the ultimate catastrophe. Alternatively, the court found that the explosion was caused by a series of intervening forces that superseded Horton’s alleged negligence. Thus, even if Horton’s act could be deemed a cause in fact, it concluded that summary judgment was appropriate because the harm was not foreseeable. Having found that appellants failed to show proximate cause, the court also granted A & B’s summary judgment motion.

The court noted that because it granted Horton’s motion as to liability, Horton’s cross-claims against A & B and Dodson were moot. With regard to Dodson, the court said: Because the Court is granting Horton’s Motion for Summary Judgment, Horton’s claims against Dodson are moot. However, Dodson did not file a motion. Upon proper motion, the Court dismiss