Defending odor fade claims

October 26, 2025 By John McCoy 0 Comments

When propane explosions occur and people are injured or die and/or there is property damage, a common claim is that the people involved did not smell the gas prior to the incident.

Odor fade is presented in a variety of ways in litigation: It did not have an odor; it was masked by other adjacent odors, so there was confusion and the claimant became desensitized to the odor over time such that they no longer detected it. Most warnings in the industry address these sensory points, as well as age, allergies, smoking and having a cold, as impacting the ability to smell. This list is not exhaustive. These claims rest on a failure-to-warn claim in a lawsuit.

There are ways to defend these claims that include proving the propane was indeed properly odorized and pointing to our warnings that recommend the use of gas detectors to assist in detecting gas leaks.

A strategy to seek dismissal involves proving a lack of proximate cause in a failure-to-warn case based on odor fade or diminished ability to smell the odor added to propane.

One such example is a 2001 Georgia decision involving a plaintiff named Royal. Royal was injured in a propane flash fire in a commercial kitchen where she worked. An appliance retailer had recently installed a new range in the kitchen. In doing so, the installer left one T-joint uncapped, which caused the gas leak that fueled the explosion.

In her discovery deposition in the case, Royal admitted to smelling gas, at least to some extent, but she did not leave the kitchen, as she claimed the smell was not that strong and did not last long. Royal’s expert claimed that the reason the smell was not that strong or did not last that long was that since propane is heavier than air, it may have stratified. The expert also opined that the smell of fish from food preparation in the kitchen may have masked the smell of the gas.

But Royal also testified at her deposition that she knew smelling even a slight odor of gas could indicate a gas leak existed, and she knew that propane is flammable. Based on these facts, the Georgia Appellate Court granted summary judgment dismissing the plaintiff’s case against the propane retailer. It held that “when an injured party is aware of the danger, failure to warn of that danger cannot be the proximate cause of the injury.” The court reasoned that proximate cause is an essential element of a negligence claim. Without an essential element of the negligence claim, that claim must be dismissed. The court went on to note that Royal was aware of the danger of the potential presence of gas but did not evacuate the kitchen.

In another Georgia case, a plaintiff named Westbrook was injured in a natural gas explosion at an apartment she was renting. The local natural gas company had recently inspected the apartment and determined that there was a leak in the service line or an uncapped line in the apartment. The utility company turned off the gas and provided a written warning to the landlord that a plumber needed to fix the leak before the gas could be turned back on. The utility employee did not lock the meter, which violated company policy.

Thereafter, the landlord had a handyman come out to the apartment, and he turned the gas back on without fixing the leak.

After the gas was turned back on, Westbrook was moving into the apartment. Westbrook did not smell gas. She then went to light incense with her lighter to get rid of an “old smell.” An explosion occurred, and Westbrook was injured.

The utility was successful in getting dismissed from the case. The appellate court agreed that the proximate cause of Westbrook’s injuries was the intervening event wherein the landlord’s handyman turned the gas back on before fixing the leak.

The court noted that “although the question of proximate cause is usually one for a jury, it may be decided as a matter of law when the jury could conclude that the [utility’s] acts were not the proximate cause of Westbrook’s injuries.”

These two cases present slightly different strategies for dismissing cases where there is a claim that warnings were insufficient – one where the plaintiff smelled gas and had time to leave the area and one where an intervening act of someone else is the proximate cause of the explosion.

Being creative and strategic wins cases.

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

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