Jury rejects odor fade claim

February 1, 2006 By    

Aside from writing this column, I also defend propane marketers who are sued for liability in gas explosion accidents.

 John McCoy
John McCoy

That opportunity recently presented itself to me in the welcome confines of a Texarkana, Ark. state court in the case of Beckett v. Fricks Butane. In that case, the plaintiff had advanced several different theories of liability against the gas company.

The plaintiff was a 58-year-old man that had received second-degree burns to 55 percent of his body as a result of a gas explosion to his residence. He claimed the propane he used was purchased from Fricks Butane within 36 hours of the accident. However, he had no receipt to prove that he bought from them.

The plaintiff said he had filled a 100-lb. cylinder at the Fricks plant, took it to his home and personally hooked it up to the gas system that he had personally installed.

On the night of the accident the plaintiff returned from a family social gathering a little after midnight and retired for the evening. He awoke at around 2:30 a.m. to find the space heater in the home had shut down. He testified that he only ran the pilot light to heat his 20-by-20-ft. residence; he never turned up the heat.

He went to light the pilot on the heater and at first try was unsuccessful. On his second attempt to light the heater, the explosion occurred.

The plaintiff claimed that he did not smell the odor of propane before he lit the appliance. He admitted that he had smelled propane before and knew what it smelled like.

His original lawsuit claimed that the 100-lb. cylinder had been overfilled by Fricks Butane. That original theory of liability was abandoned a few months before trial, as the experts for the defense were able to present persuasive arguments that a cylinder in continued use for 36 hours could not release gas to create the accident in an overfilled condition as described.

Plaintiffs then argued that the gas must not have been properly odorized, that the odor in the gas was defective or that the odor had faded by the time of the accident.

Defense attorneys produced bills of lading that showed the gas was properly odorized when received. They also verified that the gas was sniff-tested daily to insure it was properly odorized when it left the company, that the odorant used was the best available for use with propane so that it wouldn’t be defective, and that the odor could not have faded in the time from delivery to the accident based on prior scientific studies.

In this particular case, the cylinder, gas lines and all gas appliances had been subsequently destroyed before anyone could take a gas sample to test the level of odorant and the working conditions of the lines and appliances. The plaintiff’s son and some friends destroyed the evidence shortly after the accident while the plaintiff was still in the hospital.

At trial, the plaintiffs claimed that notices of the availability of gas detectors were not provided by the gas company. However, the customer conceded that he did not read the warnings that he did receive. He also conceded that had he been aware of some of the warnings that were provided to him before his accident he would not have had propane in his house or would not have lit the gas appliance on the night of his accident.

The jury adjourned to the deliberation room and returned in 20 minutes to render a unanimous verdict that the gas company was not negligent; the plaintiff was negligent and responsible for his own injuries.

John McCoy is a trial lawyer with the firm of McCoy & Hofbauer in Waukesha, Wis. A founding member and past president of the Propane Gas Defense Association, he specializes in catastrophic fire and explosion cases and product liability disputes.

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