Bailey v. Baker's Air Force Gas Corp.

Decision Date11 December 1975
Citation50 A.D.2d 129,376 N.Y.S.2d 212
PartiesAlbert BAILEY, Sr., et al., Respondents, v. BAKER'S AIR FORCE GAS CORP., Defendant and Third-Party Plaintiff-Appellant, BAILEY FORD, INC., Third-Party Defendant-Respondent. (And Twelve Other Actions.)
CourtNew York Supreme Court — Appellate Division

Herron, Lawler & Fischer, Malone (Henry A. Fischer, Malone, of counsel), for defendant and third-party plaintiff-appellant.

Bouck, Holloway & Kiernan, Albany (Francis J. Holloway, Albany, of counsel), for Albert Bailey, Sr. and another, respondents.

Willmott, Aylward, Wisner, McAloon & Scanlon, Watertown (George P. McAloon, Watertown, of counsel), for third-party defendant-respondent.

Crapser & Kirsch, Massena (William S. Crapser, Jr., Massena, of counsel), for Gerald K. Langdon and others, respondents.

Pond & Walsh, Malone, for John R. Tatro and another, respondents.

Cantwell & Cantwell, Malone, for Alton H. La Page, respondent.

McCormick & La Pan, Saranac Lake, Owens D. Grogan, Malone, for Bailey Ford, Inc., respondent.

Robinson, Lewis & Bell, Plattsburgh, for Richard La Vigne, Ind., respondent.

Before HERLIHY, P.J., and SWEENEY, KANE, KOREMAN and LARKIN, JJ.

LARKIN, Justice.

These appeals arise from various actions involving property damage originating from a fire on March 15, 1969 at garage premises leased by plaintiffs Albert Bailey and Albina Bailey to Bailey Ford Garage, Inc. (Bailey Ford). Bailey Ford sold to appellant Baker's Air Force Gas Corporation (Baker's) a truck chassis and cab upon which Baker's had mounted a used 500-gallon liquid propane gas tank. The truck was returned to Bailey Ford for correction of a defective power unit. At that time, the tank was filled with several hundred gallons of propane gas. Certain valves were left open and the hose was not bled. No instructions were given to the employees of Bailey Ford in regard to the handling of the truck. Thereafter, while an employee of Bailey Ford was working underneath the truck, a fire occurred. The record does not indicate what caused the initial ignition of the fire. Appellant Richard La Vigne and the manager of Baker's, was present at Bailey Ford overseeing the repairs when the fire occurred.

Both sides produced experts who gave their opinion as to the cause of the fire. The plaintiffs' expert opined that the truck was parked in the path of hot air, emanating from a suspended heating unit in the garage, which increased the pressure within the propane tank and caused the relief valve to release the propane gas. Although the defendants' expert testified that the fire was not of a propane origin and gave his reasons therefor, the trial court specifically accepted the testimony of the plaintiff's expert in that respect.

The trial court found that there was a duty upon Baker's to advise Bailey Ford as to the proper precautions to be taken during the time the vehicle was being worked on and that the failure of Baker's manager or employees, who had superior knowledge of the propensities and dangers in handling liquid petroleum, to warn Bailey Ford of such danger constituted negligence on their part. The court found that Bailey Ford was not negligent in placing the truck in question in the path of the heat from an overhanging heating element, in view of their inexperience in handling propane and their not receivi any warning from Baker's employees. The court found the appellant La Vigne to be guilty of acts of omission in causing and contributing to the accident in question and thus liable.

When one of the issues is the question of negligence by reason of failure to provide adequate safety devices or take sufficient precautions for the protection of persons to whom a duty of care is owed, evidence of general custom, usage and practice in the same kind of business may be introduced by either side as tending to establish a standard by which ordinary care may be judged (Richardson on Evidence (10th ed.), § 187).

Plaintiffs' expert witness, a professor of engineering familiar with propane fires and accidents, testified that in the field of propane gas safety the National Board of Fire Underwriters pamphlet number 58 was the accepted standard in upstate New York. Defendants' expert witness testified that the pamphlet is widely disseminated in the industry so that the propane suppliers will have knowledge of the safety requirements. Appellant Baker's manager testified that at the various training sessions he had attended, pamphlet number 58 was presented as a recommended safety guide, and that he possessed a copy of the pamphlet prior to the fire. He further admitted that he was not, but should have been, familiar with the specific provisions of the pamphlet concerning precautions which should be followed when liquid propane gas tank vehicles are being garaged.

In view of such testimony, the receipt into evidence of the National Board of Fire Underwriters pamphlet number 58, as some evidence of the customary way of handling propane gas in upstate New York, did not...

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    • United States
    • U.S. District Court — Eastern District of New York
    • March 13, 1986
    ...Bank v. Miller, 664 F.2d at 903; Sheldon v. Kimberly-Clark, 105 A.D.2d 273, 482 N.Y.S.2d at 869; Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 376 N.Y.S.2d 212 (3d Dep't 1975); LaLumia v. Schwartz, 23 A.D.2d 668, 257 N.Y.S.2d 348 (2d Dep't 1965). The alleged taking and demanding of ......
  • Hutter v. Countrywide Bank, N.A.
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    ...Nat'l Survival Game, Inc. v. Skirmish, U.S.A., Inc., 603 F.Supp. 339, 341 (S.D.N.Y.1985) (citing Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 133, 376 N.Y.S.2d 212 (3d Dep't 1975) (affirming trial court determination of individual liability for corporate officer who failed to warn ......
  • Cruz v. New York City Transit Authority
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    ...evidence of negligence ( see, Trimarco v. Klein, 56 N.Y.2d 98, 105-107, 451 N.Y.S.2d 52, 436 N.E.2d 502; Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 132, 376 N.Y.S.2d 212, lv. denied 39 N.Y.2d 708, 386 N.Y.S.2d 1025, 352 N.E.2d 595; Richardson, Evidence § 187 [Prince, 10th ed]; 2 ......
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