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How customer service can make or break a legal case

May 29, 2017 By    

Photo credit: steakpinball via / CC BY

In the case of Gabriel, et al. v. Johnston’s LP Gas v. DeMarco, et al., the New York Court of Appeals in its 2016 opinion addressed two appeals of denials of summary judgment by a propane marketer and an employer that resulted in two different outcomes.

This case demonstrates how the law can be a shield for some parties and a heavy burden for others based on the same fact pattern.

The case involves a propane explosion at the living quarters of undocumented workers at a farm in Oswego County, New York. The injured plaintiffs sued the propane company, Johnston’s LP Gas, alleging negligence in the distribution of gas to their living quarters. In turn, Johnston’s sued the corporate owner of the farm and the owners individually (the DeMarco defendants). Johnston’s and the DeMarco defendants sought summary judgment at the trial level.

Johnston’s sued the DeMarco third-party defendants for contribution and indemnity for any liability incurred from the plaintiffs’ claims.

Legally Johnston’s had the burden of proof against the DeMarco defendants that they were somehow responsible for the injuries to the plaintiffs. The DeMarco defendants sought to have this third-party claim against it dismissed, as it provided worker’s compensation insurance to the injured plaintiffs as their employer.
The trial court denied this motion. On appeal, the court found that the DeMarco defendants were immune from suit unless Johnston’s could show that the injuries suffered by the plaintiffs were classified as a “grave injury” under New York worker’s compensation law.

Gabriel’s injuries were alleged to be a “permanent and severe facial disfigurement.” The standard for this to be a “grave injury” is: “A disfigurement is severe if a reasonable person viewing the plaintiff’s face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly.”

In finding that a disfigurement is severe, the plaintiff’s injury must greatly alter the appearance from its appearance before and after the accident. Here DeMarco presented photos of the plaintiff’s face before and after the accident that the court found met its burden. It found that the photos did not present a grave injury as a matter of law and granted its dismissal from the case.

As for the marketer

The court was not convinced that Johnston’s LP Gas had met its burden to be dismissed from the case. It did, however, dismiss the claim that gas supplied to the plaintiffs was not properly odorized.

Its analysis of the remaining claims against the marketer began with a discussion of New York common law with regard to the duties of a gas company. The court stated that a “… gas company must use reasonable care in the handling and distribution of gas. Because of its dangerous and explosive character and its tendency to escape, a gas company has the duty to use that degree of caution which is reasonably necessary to prevent the escape or explosion of gas from its pipe or equipment.”

This statement of the law is found in many cited cases around the country. The opinion does not provide facts that help to explain how the gas leak occurred or where it occurred. So it is impossible to analyze this boilerplate citation of the law against the case facts.

In denying the propane marketer’s summary judgment motion, the court noted that the propane marketer had to submit evidence establishing that “it had no actual or constructive notice of any defect on the premises that would cause the gas leak” that caused the explosion. Here the court found that the propane marketer did not provide “sufficient evidence that during service calls it provided adequate care to ensure that all aspects of the propane system were operating safely and effectively.”

As a result, the court of appeals decided that it was up to a jury to determine whether the propane marketer was negligent and if that negligence caused the plaintiffs’ injuries.

This case implicitly suggests that actions taken during service work can make or break a case. How the work is documented is critical to answering the question that appears to be left unanswered here: Did the propane marketer provide adequate care in its service calls to ensure the gas system was operating safely and effectively?

As you perform your service work and the documentation of that work, ask yourself that same question. If you do not like the answer, you have work to do.

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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