Back to trial in explosion case

January 13, 2016 By    

In the case of Wilmes v. Consumers Oil Co. of Maryville, the Missouri Court of Appeals for the Western District reversed the trial court dismissal of this propane explosion case that had favored the propane company.

Yet the case was sent back to the trial court for further proceedings.

The Wilmes v. Consumers Oil Co. case arises out of a propane explosion in a barn built by the plaintiff, Thomas Wilmes, behind his house near Maryville, Mo., in August 2009.

Wilmes installed a radiant heater from the barn’s ceiling joists and ran the gas lines from a 500-gallon tank he owned and personally placed at his residence, using a hoist from Consumers Oil.

By November, Wilmes asked Consumers Oil to deliver 400 gallons of gas he previously purchased. It was delivered, and the driver claims he performed a leak check of the tank and found no leaks. Wilmes does not think the driver performed the check. Wilmes couldn’t light the heater, so he turned the tank off and on again. He had some issues relighting the heater, but he never fixed that issue. He left and came back days later to try to light the heater. Wilmes claims an explosion immediately followed his attempt, and he was burned badly.

While he was in the hospital, his wife asked for the heater, the gas system and shed to be destroyed. Yet no one from any party ever got to test the items destroyed.

Several legal bases were raised at trial for the gas company’s dismissal of the case. This was the first case to use an immunity statute for a propane company to obtain a dismissal of a case.

According to a Missouri statute, propane companies can be granted immunity if “the incident is the result of an installation, modification, repair or servicing of the equipment and appliances” and the gas company does not get notice. Here, the trial court concluded that turning the tank off and then Wilmes’ modification of the system two days before the accident created immunity for the gas company. The appellate court looked at the definitions for “modification, repair or servicing” and concluded that an “interruption of service” does not meet those definitions.

The trial court also found that the destruction of all evidence by Wilmes’ wife constituted spoliation of evidence, and it prevented plaintiffs from proving the case with competent evidence. The appellate court disagreed and found the spoliation rule was improperly applied to dismiss the case at trial level. The appellate court argued that trial courts could analyze “whether the Wilmeses can prove all of the elements of their case subject to an adverse inference that the heater and piping, if preserved, would not have supported Wilmeses’ theory of the case.” Part of this consideration is the duty of Consumers Oil as the Wilmeses’ propane supplier.

The trial court found that Wilmes’ act of turning off the tank and turning it back on without conducting a leak check two days before the accident constituted a superseding or intervening act that barred any negligence claim against Consumers Oil. The appellate court disagreed. It found that this is a question for the jury, as there is a dispute regarding the relevant facts.

Wilmes claims through his experts that several code violations were present that the driver should have corrected. Experts for the plaintiffs agree the code violations did not cause the leak, so the jury can balance the arguments of the parties here, according to the appellate court.

Finally, the trial court dismissed the warnings claims of the Wilmeses, as their experts did not criticize the warnings provided, and Wilmes admitted he never read any warnings. The appellate court found that the question of warning about code violations in the Wilmeses’ system is essentially a negligent warnings claim and should go to the jury.

Given this decision, a trial is the next step, so there may be another chapter or two on this case. Stay tuned.


John V. McCoy is with McCoy Leavitt Laskey LLC, and his firm represents industry members nationally. He can be reached at 262-522-7007 or

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Allison Kral was a senior digital media manager at LP Gas magazine.

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