Explosion case centers on propane immunity statute

In the case of Allen v. Titan Propane Inc., the trial court dismissed the plaintiffs’ second amended petition for failure to show the defendant propane company’s actions constituted “gross negligence,” as required by Missouri’s propane immunity statute.

Subsequent to this dismissal, the plaintiffs/appellants filed an appeal to the Missouri Court of Appeals.

This case arises out of a propane incident that occurred March 2, 2008, at the Wilma Cook residence. A gas explosion occurred when the plaintiff, John Allen, attempted to replace a heater in the basement by disconnecting the line. The line did not have a manual shutoff valve within 6 feet of the appliance, it is alleged.

Titan Propane had provided propane to the home for 23 years, either as Titan or under the name of predecessor propane companies.

There is a shutoff valve at the tank that was in working order. Sometime in 2001, Titan, or one of its predecessor propane companies, did repair work on a heater in the home. That work was done on a different floor of the home and it did not put the gas company employee in visual proximity of the heater that Allen was working on the day of the incident.

Titan did not install the heater that Allen worked on the day of the incident. Additionally, Titan did not own any part of the gas system Allen worked on, and the company had never been in the basement. Titan also was not aware that Allen was modifying his gas system. Neither Allen nor Cook gave notice to Titan that Allen planned to modify the gas system.

A Missouri statute provides immunity to propane companies if certain criteria are met. Here it was conceded that Titan was properly registered to sell propane and that Allen’s injuries were from an occurrence that was either related to installation or modification of his gas system. Titan never received written notification of this activity and did not have actual knowledge of Allen’s activity.

On appeal, the Allens did not challenge that Titan did not qualify for the immunity provided by the statute. They instead argued that the exception to immunity provided by the statute was triggered by the facts pled in their petition, and thus Titan was not afforded the immunity protections the statute provides.

The only exception to the statutory immunity is under a section that requires a plaintiff to plead facts showing that Allen’s alleged damages “arise directly from the gross negligence or willful or wanton acts” of Titan.

The trial court dismissed Allen’s petition, finding that gross negligence was not properly pled. The Allens have never alleged that Titan’s conduct was “willful or wanton,” so that has not been an issue in the case.

On appeal, the central issue depends on the definition of “gross negligence,” as this term is not clearly defined in the statute.

The Allens’ position is that the term “gross negligence” is broad enough to include acts that are seen as “great or manifest negligence.” Titan labels the term as an effort to find something “really, really negligent.” This is an amorphous standard at best. The Allens argue that this heightened negligence supports a gross negligence claim, as it is something more than ordinary negligence.

Titan argues that the definition of “gross negligence” in regard to the immunity statute has been well defined by two other Missouri cases.

That definition requires a culpable mental state or a “conscious indifference” to defeat a statutory immunity. In the context of professional licensing statutes, the courts have defined gross negligence to mean “an act or course of conduct which demonstrates a conscious indifference to a professional duty that constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”

Considering the facts pled by the Allens and the facts acknowledged, Titan argues that its immunity from suit under the propane immunity statute should apply.
When the appellate court decision is published, we will provide a follow-up.

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 jmccoy@MLLlaw.com.