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Home explosions don’t always involve negligence

September 18, 2012 By    

South Dakota confirms that an explosion does not always equal negligence.

There is a well-known concept in the law that just because there is an accident or injury, it does not follow that someone was negligent. This concept was recently borne out in the South Dakota case of Cashman v. Van Dyke.

In this case, Van Dyke came home on Oct. 12, 2007, and found that his furnace was not working. As the night wore on, he became cold and went to light the pilot around 9:05 p.m. The next morning, at around 5:30 a.m., Van Dyke awoke to an explosion. Before he could escape from the home, he was badly burned and had severe bleeding to his feet and lower extremities.

As Van Dyke waited for the EMT, he remarked to his neighbor that he should have waited for the serviceman from the gas company to come and light the pilot on his furnace. Later at the hospital, his father told several witnesses that he had told his son to wait for the serviceman from the gas company to light the pilot.

Cashman is Van Dyke’s neighbor. His house was damaged from the explosion at the Van Dyke property. Cashman sued Van Dyke for his damages under theories of negligence, strict liability and res ipsa loquitur.

In the negligence claim, Cashman argued that the burns to Van Dyke’s legs suggested he was lighting the furnace at 5:30 a.m. – not the night before, as Van Dyke claims. The claim also states that Van Dyke was told to wait for the serviceman to light the pilot. Also, it is known there was an explosion, but the question remains as to how Van Dyke was negligent in causing it.

The court rejected Cashman’s arguments. It concluded that the only evidence was Van Dyke’s testimony that he lit the furnace at 9:05 p.m. the night before. Anything else was just speculation, the court said. Van Dyke was not required to wait for the serviceman. But the question remains: Did he do anything negligent in lighting the furnace?

The activity of lighting an appliance is something that can be done safely. There was no evidence offered that Van Dyke was negligent in how he lit the furnace. Explosions can occur for many reasons. Some of those reasons are not based in negligence. So the fact that there was an explosion is not evidence of negligence.

In his strict liability claim, the plaintiff is relieved of the burden of proving negligence. But for this to be a viable claim, Cashman had to show that lighting a pilot is an inherently and abnormally dangerous activity.

To make a case, the plaintiff had to show that this activity presents a high degree of risk of harm; that the likelihood of that harm is great; that the harm cannot be eliminated by the use of reasonable care; that the activity is not common; that the activity is inappropriate in the place it is occurring; and that the danger to the community is greater than its attributes.

The court concluded that Cashman could not prove any of these factors in this case. In summary, it said lighting a pilot on a furnace is something that can be done safely if normal precautions are followed.

Finally, res ipsa loquitur is a claim that is based on the concept that when an accident happens with something in the exclusive control of a person that normally would not happen without negligence, then the person in control is charged with negligence. In these cases, the fact of the accident is enough to support the negligence claim without an explanation by the defendant. In this case, the court rejected the res ipsa loquitur theory. It concluded that the mere occurrence of an explosion is not enough to show that Van Dyke was negligent.

It is true homes do not normally explode, but it does not follow that they only explode because of negligence. There was no evidence in the case as to what caused the explosion. There could be several explanations, so res ipsa loquitur is not applicable.

There are two important takeaways here. First, there is no prohibition on homeowners lighting their own appliances. This is something that can be done safely and with reasonable care. Second, just because there is an explosion, it does not mean that someone is negligent.

John V. McCoy is with McCoy Law Group, S.C., and his firm represents industry members nationally. He can be reached at or 262-522-7007.

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