Solid record at trial court level nets positive legal outcomes

April 30, 2024 By    

On March 21, 2024, in C. Sidney Johnston, et. al. v. Ferrellgas Inc., the U.S. Court of Appeals for the 5th Circuit reversed the trial court’s decision that denied summary judgment to Ferrellgas and rendered judgment in favor of the propane retailer, directing the trial court to dismiss the case against it.

This case involved a propane cylinder that Johnston purchased on July 24, 2019. Two days later, Johnston connected it to a Char-Broil grill and pushed the igniter, but nothing happened. After he hit the igniter a second time, a flash fire occurred.

Johnston received second- and third-degree burns for which he received medical treatment. He sued Char-Broil and Ferrellgas in state court, alleging a manufacturing defect and negligence. Char-Broil removed the case to federal court based on diversity of jurisdiction between plaintiffs and defendants and then settled with the plaintiffs.

The plaintiffs’ defect claim was that the cylinder had “an older valve and seal.” The plaintiffs also alleged that the way Ferrellgas inspected the cylinder during refilling may not have met industry standards and was therefore a breach of duty. Ferrellgas filed a motion for summary judgment with the trial court, arguing that any failure of the face seal was not shown to be a proximate cause of the plaintiffs’ injuries, and it did not breach any duty.

As to the manufacturing defect claims, Ferrellgas argued at the trial court level that: 1. The plaintiffs produced no evidence to show that there was a defect at the time the cylinder left Ferrellgas’ hands; 2. The plaintiffs’ expert could not say when the face seal became deficient; and 3. The expert could not say when the face seal was defectively manufactured.

As to the negligence claim, Ferrellgas argued that it complied with industry standards by conducting a four-point inspection when it last filled the cylinder in February of 2019, five months before the incident.

The trial court denied the motion for summary judgment on the manufacturing defect claim, finding conflicting expert testimony that a jury would need to resolve.

As to the negligence claim, it held that it “was for the jury to determine whether Ferrellgas adequately inspected the seal.” It suggested a jury could find Ferrellgas’ policy of having no maximum lifespan for the face seal as a breach of duty. The face seal was 17 years old.

The jury returned a verdict of $7.5 million. The trial judge reduced this verdict to $1.7 million in a procedure known as remittitur. Ferrellgas made that motion. It also moved to have the trial judge rule in its favor, known as judgment as a matter of law (JMOL), based on the arguments in its summary judgment motion. The JMOL motion was denied by the trial court, and Ferrellgas appealed.

The appellate court noted in its decision that the trial court commented during a pretrial conference that “[y]ou can make a good argument that the evidence is not there, and the testimony was not there to connect the damaged product to the actual explosion.”

In finding that Ferrellgas was entitled to summary judgment, dismissing this case and setting aside this jury verdict, the appellate court “[found] no substantial evidence to support the jury’s finding that any defect existed at the time the [cylinder] left Ferrellgas.”

The plaintiffs argued that a doctrine known as the “sealed container” should apply. The cylinder in question left Ferrellgas with a blue cap over the valve. Under this doctrine, it is presumed the product that is sealed arrives at the consumer in the same condition as when it left the manufacturer. The court rejected this argument, finding that the blue cap is not a seal, and contaminants and air can still affect the seal.

The negligence claim was dependent on the jury first finding a manufacturing defect in the cylinder. Since the appellate court ruled there was no manufacturing defect, the negligence claim could not survive.

Making a good record at the trial court can bear fruit at the appellate level.

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

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