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08/17/93 RONALD TUNE v. SYNERGY GAS CORPORATION

August 17, 1993

RONALD TUNE, PLAINTIFF-RESPONDENT,
v.
SYNERGY GAS CORPORATION, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY. Honorable Robert Yocom, Judge

Appellant's Motion for Rehearing Overruled. Motion for Transfer Denied September 8, 1993.

Shrum, Parrish, Crow

The opinion of the court was delivered by: Shrum

The defendant, Synergy Gas Corporation, appeals from a judgment in favor of the plaintiff, Ronald Tune, on his personal injury claim arising out of a propane gas explosion and fire. The case was submitted to the jury on a strict liability failure to warn theory. The jury's $2,850,000 damage award was reduced by the settlement amounts the plaintiff had received from other defendants. We affirm.

FACTS

The explosion and fire occurred on June 24, 1988. The plaintiff was an employee of Tim Heifner who operated a television satellite dish business. The plaintiff and Heifner had gone to the home of Donna Scoggins in McDonald County, Missouri, to repair a satellite dish stand, repairs that involved cutting and welding metal brackets. Heifner used a cutting torch fueled by a propane/oxygen mixture to cut angle iron and was welding with an arc welder.

Immediately before the explosion both men were kneeling, with the plaintiff holding an angle iron with a pair of pliers and Heifner using the welder. They were then approximately 15 feet down a slope from their propane tank. Propane had escaped from the tank and, being heavier than air, had flowed down to the work area and accumulated in sufficient quantity to be ignited by a spark created when Heifner struck the third welding rod. Both Heifner and the plaintiff were burned in the resulting flash fire. Before the explosion neither the plaintiff nor Heifner smelled gas.

Earlier that morning, preparing for the day's work, the plaintiff realized the propane tank was empty. He said he opened the tank, "I didn't smell nothing, nothing came out, so I assumed it was empty." He testified he knew what propane normally smells like. On the way to the Scoggins home, Heifner and the plaintiff took the tank to 71 Truck Stop, a retail outlet owned by C.A.M. Enterprises, to have it filled. Heifner and the plaintiff testified that the attendant at 71 Truck Stop did not weigh the tank to determine how much propane he put in it, but rather filled it until the pump motor "bogged down."

The attendant did not recall filling the tank because of the large number of propane tanks he had filled during his nearly eight years on the job. He testified that because of his training and a state regulation, he weighed all tanks before and after he filled them to ensure he put in the right amount of propane.

The plaintiff described the weather that day as "real warm" and said it became "a lot warmer as the day went on." A slight breeze was blowing at the accident site. Expert witnesses agreed that the propane escaped through the tank's pressure relief valve when it opened because of excessive pressure in the tank associated with the rising air temperature and the overfilling.

The 71 Truck Stop bought propane from Granby Gas Company until May 12, 1988, the date the defendant bought Granby Gas and became the wholesale supplier of propane for 71 Truck Stop. On May 12, the defendant's transport truck picked up 8,200 gallons of propane from Williams Pipeline and delivered it to the newly acquired Granby facility on May 16. During the loading of the defendant's transport, Williams Pipeline added an odorizing agent, ethyl mercaptan, to the gas. *fn1 On May 25, the defendant sold 300.1 gallons of propane from its Granby facility to 71 Truck Stop. The propane was placed in the truck stop's 1000-gallon tank that was used for retail sales, including the sale on June 24 to Heifner and the plaintiff.

The plaintiff offered evidence that ethyl mercaptan can experience "odor fade" for various reasons. It can oxidize when it contacts rust inside a gas cylinder, resulting in a less pungent odor. It can absorb into walls, soil, or other substances, thus becoming less available for detection. And the ethyl mercaptan odor can fade when propane hits air that is warmer than the gas's normal boiling point of 44 degrees below zero Fahrenheit. The defendant did not warn 71 Truck Stop or the plaintiff and Heifner that odor normally associated with propane could fade nor did they warn them of the danger of overfilling the tanks. No safety courses or training about propane was given by the defendant to 71 Truck Stop employees until December 1989.

As a result of the explosion and fire the plaintiff sustained second degree burns on approximately 40 percent of his body. He incurred $54,419.24 in lost wages and medical expenses. He offered evidence of past pain and suffering as well as evidence that his injuries were permanent and disabling. The jury rendered a verdict for $2,850,000. After deducting other sums received in settlement and adding pre-judgment interest, the court entered judgment for the plaintiff in the amount of $2,812,556.84. It is from that judgment that the defendant appeals. We will provide additional facts in the course of our Discussion of the defendant's points on appeal.

DISCUSSION AND DECISION

Strict Liability/Failure To Warn

In Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo. 1969), the supreme court adopted the rule of strict liability in tort as stated in the Restatement (Second) of Torts § 402A (1965). Strict liability as described in § 402A is imposed on a seller that introduces into commerce an unreasonably dangerous product, whether that danger arises from defective manufacture, defective design, or failure to warn of danger. See Racer v. Utterman, 629 S.W.2d 387, 395[11] (Mo.App. 1981), appeal dismissed and cert. denied sub nom. Racer v. Johnson & Johnson, 459 U.S. 803, 103 S. Ct. 26, 74 L. Ed. 2d 42 (1982). Breach of the manufacturer's duty occurs with the introduction of such product into commerce.

Referring to the comments under § 402A, the Racer court stated,

[Comment k] recognizes that certain useful and desirable products are, under the present state of human knowledge, incapable of being made safe for their intended and ordinary use. "Such a product, properly prepared, and accompanied by proper directions and warning, is not defective[,] nor is it unreasonably dangerous."

629 S.W.2d at 393 (quoting Restatement (Second) of Torts § 402A cmt. k) (unreasonably emphasized in restatement comment; other emphasis added in Racer).

To prevent a product that is incapable of being made safe from being unreasonably dangerous, the seller may be required to provide an adequate warning of the danger inherent in the use of the product. Grady v. American Optical Corp., 702 S.W.2d 911, 915[1] (Mo.App. 1985); see also Racer, 629 S.W.2d at 393. When a distributor places into commerce a product that is unavoidably unsafe without an adequate warning and the lack of adequate warning renders the product unreasonably dangerous, strict liability for injuries caused by the product may be imposed on the distributor. Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1011 (8th Cir. 1989); Menschik v. Mid-America Pipeline Co., 812 S.W.2d 861 (Mo.App. 1991) (cases holding that evidence supported submission of case to jury on strict liability failure to warn theory where propane was sold without warning that odorizing agent [ethyl mercaptan] in propane might be ineffective to warn of the escape of propane). See also Racer, 629 S.W.2d at 392-95.

Under Missouri law, "Unless a court can say as a matter of law that the product is not unreasonably dangerous the question is one for the jury." Racer, 629 S.W.2d at 394[6]. Accord Grady, 702 S.W.2d at 915.

With the foregoing in mind, we examine the defendant's points relied on.

Arguments of Entitlement To Directed Verdict

In its first point the defendant charges that the trial court should have directed a verdict in its favor at the close of all of the evidence (or should have granted its motion for judgment notwithstanding the verdict) because plaintiff failed to make a submissible case based on strict liability-failure to warn principles. While conceding that propane "is . . . an unavoidably unsafe product" and "must be sold with warning . . .", *fn2 the defendant claims that by putting ethyl mercaptan in the gas as an odorant, it provided an adequate warning. Thus, in Points I(A) and I(B) the defendant avers that the plaintiff failed to meet his burden of proving that the propane, which contained the required amount of odorant, was an unreasonably dangerous product at the time it left the defendant's control. In Point I(C) the defendant claims that the plaintiff failed to prove causation, specifically that he failed to prove that additional warnings--warnings other than the odorant--could have prevented the accident.

We first consider Point I(A) in which the defendant argues the plaintiff failed to make a submissible case because the propane was "substantially modified and made unsafe" by the retailer's employee when he filled Heifner's cylinder to capacity rather than to 80 percent of capacity. To support its argument, the defendant discusses Missouri cases that adhere to the Restatement principle that a supplier is not liable when it delivers a product in a safe condition but subsequent mishandling renders the product defective. Restatement (Second) of Torts § 402A(1)(b) and cmts. d and g. Such argument misses the point of the plaintiff's claim. For the reasons that follow, we conclude the principles regarding modification of products are inapplicable and the cases cited by the defendant on this point are inapposite.

In the instant case the plaintiff made a submissible case on a strict liability failure to warn theory by demonstrating through the testimony of his expert witness Robert C. Stubbs that the propane that escaped and injured him was "very dangerous" when the defendant delivered the product without a warning that the smell normally associated with propane might not be detected if the gas escaped from its tank. Through Stubbs's testimony the jury learned that ethyl mercaptan was not a reliable means of warning people of the presence of escaped gas. Among the reasons he gave for the unreliability of ethyl mercaptan as a warning agent were its propensity to oxidize as a result of which it loses its strong odor in certain circumstances and its susceptibility to being absorbed on various surfaces, which also causes odor fade. Stubbs testified that the unreliability of ethyl mercaptan as a warning agent was well known in the propane industry. He further testified that the characteristic of ethyl mercaptan to chemically break down had been the subject of various studies in the 1950's through the 1980's.

Stubbs's testimony provided evidence from which the jury could have concluded that the characteristic of ethyl mercaptan to oxidize or be absorbed and thereby lose some of its odor was present when the defendant placed the propane into commerce and that the propane thus was unreasonably dangerous because the defendant did not adequately warn of its danger. See Donahue, 866 F.2d at 1009-10[1].

Having so decided, we necessarily reject the defendant's Point I(A) argument that, as a matter of law, the propane was safe when sold by the defendant and that the truck stop employee's overfilling of the tank was a subsequent modification of the propane that made it unsafe. Because there was evidence that the propane was unreasonably dangerous when sold, the jury could have concluded that the defendant breached its duty when it sold the propane without warning that the odorant might fade and become undetectable. Subsequent events ...


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