The critical role of record keeping in legal cases

December 28, 2018 By    

The case of Porter, et al. v. Heritage Operating LP, et al. arises out of a 2009 fire that injured four teens working in a 4-H booth at a festival sponsored by the Catholic diocese of El Paso, Texas. The teens all suffered from burn injuries.

Keeping receipts with customer IDs should be a high priority for all sales. Photo:

Keeping receipts with customer IDs should be a high priority for all sales. Photo:

The case was tried in 2012 and resulted in a verdict in favor of the defendants – Heritage Propane and the diocese. After trial, a new judge was assigned to the case and granted the plaintiffs a new trial, despite their late request for one.

The defendants filed a writ of mandamus. The appellate court prevented a new trial as it considered the appeal. In late October 2018, six years later, it issued a 75-page opinion.

The court upheld the defense verdict for Heritage Propane, but sent the diocese’s case back for additional proceedings. The opinion is an interesting read for a legal scholar, but I will focus on the parts that concern the propane marketer, as they are most relevant.

Plaintiffs alleged that Heritage Propane was negligent in filling the gold ASME tank, which had a leaking OPD valve and had been detached from its permanent connection to a commercial grill. It was alleged that the propane tank leaked gas into the 4-H booth when connected to a funnel cake fryer. The gas ignited and caused the fire that injured the teens.

The defense presented by Heritage Propane was twofold: This was a grease fire, not a propane fire, and it did not fill the tank.

Although not dispositive of Heritage Propane’s win on appeal, the court’s decision on a propane fire versus a grease fire is interesting.

There was conflicting testimony that just before the fire, ice and water from a snow cone machine were accidentally dropped into the fryer, which can result in a fire like that described by some of the witnesses. Each side claimed the testimony supported their fire theory.

The court ultimately concluded that this was a propane fire. It did so by finding unchallenged testimony from a treating doctor that the burn injuries of the teens were from a propane fire.

In upholding the defense verdict for Heritage Propane, the court focused on whether the tank had been filled by the propane marketer.

Plaintiffs used testimony from a leader in the 4-H club who ran the booth where the teens were injured. The leader testified he was certain he had the tank filled at the Heritage Propane facility. He said an employee was rude to him, which stuck in his memory.

Heritage Propane called a corporate representative, who told the jury the company keeps receipts of all sales, including cash transactions, and puts the customer name on each. He had reviewed company records of sales and found none to the 4-H leader. Though, he admitted, some sales receipts did not have customer names.

Heritage Propane also called the employee who fills cylinders and tanks. He said he did not recall filling a gold tank. He would not have filled it anyway, he said, because it had been detached from its commercial appliance. He also said he would have remembered filling a gold tank.

Based on this conflicting testimony, the appellate court held the jury could have arrived at its defense verdict in favor of Heritage Propane by finding it was not the propane marketer that filled the tank.

The lesson here: Record keeping can be critical in defending a case. Receipts with customer IDs should be a high company priority for all sales. Consider having a ledger for each fill that notes customer, date and item sold. As this case makes clear, it could be the difference between winning and losing.

John V. McCoy is with McCoy, Leavitt, Laskey LLC. His firm represents industry members nationally.

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