Propane not ultra-hazardous product
Recently, the propane industry has been under attack from members of the plaintiff’s bar alleging that propane is an ultra-hazardous product.
The significance of an ultra-hazardous classification is that it exposes propane marketers to what is known as “strict liability.” When strict liability is applied, the plaintiff need only prove that the accident occurred and that the defendant was responsible. It does not permit the defendant to prove that it took the proper and necessary safety precautions to minimize the risk associated with the activity.
John McCoy, LP/Gas Magazine Columnist |
In essence, the negligence or care exercised by the defendant in carrying out the activity is irrelevant when determining negligence.
Courts use six factors to determine whether an activity or product is ultra-hazardous. Those factors are:
- The existence of a high risk of harm;
- The likelihood that the harm will be great;
- The inability to eliminate the risk through reasonable care and precautions;
- The extent to which the activity is not a matter of common usage;
- The inappropriateness of the activity to the place where it is conducted; and
- The extent to which its value to the community is outweighed by its dangerous attributes.
None of these factors definitively settles the question as to whether an activity or product is ultra-hazardous. Rather, a court must balance all of the relevant factors depending on the scenario that is presented.
Typically, products or activities that fall within the ultra-hazardous classification are those that carry a high degree of risk despite proper precautions. These products or activities usually are not common to our society. Examples of products or activities that courts have classified as ultra-hazardous include blasting operations, transportation of nuclear or toxic waste and the harboring of wild animals.
Despite plaintiff’s attorney’s efforts, courts have continually held that propane does not qualify as an ultra-hazardous product. Such rulings, however, have not stopped the attacks.
As a result, it is imperative that attorneys for propane marketers become familiar with the ultra-hazardous concept. It is also important for attorneys representing the industry to understand and utilize the reasons that courts have rejected past ultra-hazardous arguments.
Courts have noted that although propane is a dangerous substance, reasonable precautions can reduce or completely prevent the risk of explosion. In essence, courts recognize that propane is a relatively safe product when handled according to standards and regulations. In contrast, the risks associated with an ultra-hazardous product typically cannot be reduced, even when employing the proper precautions.
Courts have further noted that propane is of great value to the community, providing an often needed and necessary energy source. The use of propane is also a widely accepted practice – so much so that gas stations, convenience stores and supermarkets now offer propane for sale to customers. The sale of propane is no longer limited to specialty retailers.
As a result of its widespread acceptance, the ability to reduce or eliminate its harmful risks and its high community value, propane should not be classified as an ultra-hazardous product. Nonetheless, it is clear that plaintiff’s attorneys will continue to attack the propane industry and argue that it is an ultra-hazardous product. It is this reason that the industry must aggressively fight back and use attorneys that are familiar with and capable of defeating the ultra-hazardous argument.
McCoy is the president of the law firm McCoy & Hofbauer, S.C. and specializes in representing propane companies. He can be reached at jmccoy@mh-law.us or 800-599-8300.