Blueflame Gas, Inc. v. Van Hoose, Nos. 82SC52

Docket NºNos. 82SC52
Citation679 P.2d 579
Case DateMarch 12, 1984
CourtSupreme Court of Colorado

Page 579

679 P.2d 579
BLUEFLAME GAS, INC., Petitioner,
v.
James Willard VAN HOOSE and Louisa Van Hoose, Respondents,
PHILLIPS PETROLEUM COMPANY, Petitioner,
v.
James Willard VAN HOOSE and Louisa Van Hoose, Respondents,
DIAMOND SHAMROCK CORPORATION, Petitioner,
v.
James Willard VAN HOOSE and Louisa Van Hoose, Respondents.
Nos. 82SC52, 82SC56 and 82SC57.
Supreme Court of Colorado,
En Banc.
March 12, 1984.
As Modified on Denial of Rehearing
April 2, 1984.

Page 581

Petersen & Fonda, P.C., Lawrence J. Simons, Pueblo, for petitioner Blueflame Gas, Inc.

Williams, Trine, Greenstein & Griffith, P.C., William A. Trine, Boulder, Faricy, Tursi & Phelps, James V. Phelps, Dale P. Tursi, Pueblo, for respondents.

Donald E. La Mora, Colorado Springs, for petitioner Diamond Shamrock Corp.

Louis J. Stuart, P.C., Louis J. Stuart, Pueblo, for petitioner Phillips Petroleum Co.

Page 582

QUINN, Justice.

We granted and consolidated these three separate petitions for certiorari, filed by the petitioner-defendants, to review the court of appeals' decision in Van Hoose v. Blueflame Gas, Inc., 642 P.2d 36 (Colo.App.1981). The respondent-plaintiffs, James and Louisa Van Hoose, had sued the petitioner-defendants, Phillips Oil Company (Phillips), Diamond Shamrock Corporation (Diamond Shamrock), and Blueflame Gas, Inc. (Blueflame), for damages resulting from a propane gas explosion in their home. The court of appeals reversed a judgment for the defendants and ordered a new trial because, in its view, the trial court erroneously instructed the jury on the standard of care applicable to suppliers of propane gas and also on the plaintiffs' burden of proof in a strict liability claim involving an allegedly defective product. We affirm the judgment of the court of appeals.

I.

James and Louisa Van Hoose filed suit against Phillips, Diamond Shamrock, and Blueflame for damages as the result of injuries sustained by James in a gas explosion at their home in Pueblo County, Colorado, on July 23, 1972. 1 The complaint included separate claims in negligence and strict liability in tort. The claim in negligence alleged that the defendants failed to properly odorize the propane gas with ethyl mercaptan, as required by an administrative regulation promulgated by the State Inspector of Oils, failed to test for appropriate odorization prior to the sale of the propane to the Van Hooses, and failed to warn them of the inadequate odorization. A separate claim in strict liability, based on § 402A, Restatement (Second) of Torts (1965), alleged that the failure to sufficiently odorize the propane gas rendered it a defective product unreasonably dangerous to consumers and users. 2 The defendants denied liability and raised the affirmative defense of contributory negligence on the negligence claim. A two week jury trial, commencing on June 8, 1977, resulted in verdicts for the defendants.

In 1972 Phillips and Diamond Shamrock jointly owned a storage terminal located in La Junta, Colorado. The terminal, which was operated solely by Phillips, was used for the storage and sale of propane and other petroleum products. Propane was piped to the La Junta terminal through a line that originated at the Phillips refinery at Borger, Texas, and was joined by a branch line from Diamond Shamrock's refinery in McGee, Texas. The propane was then stored at the La Junta terminal until sold to customers of either Phillips or Diamond Shamrock.

Propane is a liquefied petroleum gas compressed at a low temperature and used as a domestic fuel. When released by means of a regulator through a small vent, propane vaporizes into an inflammable gas that flows through pipes to stoves and other domestic appliances. Propane is odorless, highly combustible, and, like other gases, has a natural tendency to escape when under pressure. Because of these characteristics the State Inspector of Oils, many years prior to the events in question,

Page 583

promulgated Regulation B.1. This regulation requires the addition of an odorization agent sufficient to indicate the presence of gas in concentrations of at least one-fifth of the lower limit of flammability. 3 In the case of propane, the lower limit of flammability is the volumetric percentage of 2.15 percent propane in a gas-air mixture. Regulation B.1 states that the requirement "shall be considered to be met by the use of 1.0 pounds of ethyl mercaptan ... per 10,000 gallons of L.P.-gas." 4

Ethyl mercaptan is a clear liquid and has a strong stench commonly described as "the smell of gas." The purpose of this additive is to give propane a sufficient odor so that its presence will be detected in the event it accidentally escapes. Ethyl mercaptan has a tendency to oxidize and breaks down chemically under various conditions with a resulting loss in odorization. When confined in metal containers, ethyl mercaptan is subject to some absorption into the metal surface, especially when the container is new, with a decrease in odorizing effect. Because the odor of ethyl mercaptan may be masked with other strong odors, such as that emanating from mildew, any loss of odorization increases the potential for masking.

It was the customary practice of the Phillips employees to add ethyl mercaptan to the propane at the La Junta terminal. The ethyl mercaptan was shipped from the Borger refinery in Texas and placed in storage tanks at the La Junta terminal, where it remained without modification or testing until it was added to the propane. The odorization process took place when the propane was loaded into tanker trucks for delivery to retailers. At the start of each load an injection pump added ethyl mercaptan to the tanker truck to permit it to mix with the propane during the loading process. The ethyl mercaptan was measured through the use of a "sight glass," which was a glass tube approximately twelve inches in length with a graduated scale on the side indicating the amount of propane in increments from 1,000 to 8,000 gallons. When the ethyl mercaptan was injected into the tank of the truck, a small teflon float inside the "sight glass" would rise to the equivalent level of propane gallons. Addition of ethyl mercaptan in accordance with the sight glass calibrations resulted in a ratio of 1.5 pounds of odorant per 10,000 gallons, one-half again the amount required by Regulation B.1. After the ethyl mercaptan had been added, a Phillips employee then pumped the propane into the tank of the delivery truck. When the loading process was completed, there was no further testing to determine the efficacy of the odorization process, although several tests were available for this purpose. 5

Page 584

Blueflame was a commercial customer of Diamond Shamrock and purchased propane from the La Junta terminal. Blueflame had a 30,000 gallon propane tank on its lot in Pueblo. Propane was shipped by tanker truck from the La Junta terminal and pumped directly into Blueflame's tank without further modification or testing. From Blueflame's tank the propane would then be transported to residential customers.

Two sales of propane were made by Diamond Shamrock to Blueflame in April and May of 1972. On April 24, 8,874 gallons were sold to Blueflame and again on May 5, 8,900 gallons were sold. Truck loading receipts for these sales indicated that Carl Gearhart, the Phillips operator at the La Junta terminal, had added ethyl mercaptan to these loads in the ratio of 1.5 pounds per 10,000 gallons of propane, although Gearhart had no specific recollection of the two loads in question.

On May 5, 1972, the same day that 8,900 gallons of Diamond Shamrock's propane had been delivered to Blueflame's storage tank in Pueblo, a Blueflame employee, Rudy Stanley, made a residential delivery of approximately 200 gallons of propane to the plaintiffs' home. The propane, which was used by the Van Hooses to fuel their cooking and heating stoves and a hot water heater, was pumped into a tank located outside the house. The tank had a capacity of 375 gallons and was connected by an underground copper gas line to the stoves and hot water heater. The 200 gallon delivery, according to Stanley, resulted in filling the tank to sixty percent of its capacity. No further deliveries were made by Blueflame to the plaintiffs between this date and the date of the explosion on July 23, 1972. Although Stanley could not recall if he had smelled an odor in the propane delivered to the plaintiffs, he testified that the degree of odorization often varied during the one and one-half years he had worked for Blueflame and, in fact, on two occasions he delivered propane with no odor at all.

In July of 1972 the Van Hooses and their seven children left for a two-week vacation. While they were gone James Van Hoose's brother, Billy, looked after the house and the livestock, making trips twice daily to the house for this purpose. Because the Van Hooses had no easily accessible water tap outside the house, Billy went into the house on each occasion to get water for the livestock. During this period of time he never noticed any odor of propane in the house.

On July 22, 1972, the Van Hooses returned home from vacation. After supper James wanted to take a bath, but discovered that there was no hot water. Feeling too tired to check the hot water heater in the basement, he went to bed. Although he and his wife were familiar with the smell of gas, neither of them detected any odor of gas in the home. 6 Nor did James' brother Billy or Billy's wife, both of whom were present in the home at this time, smell any gas.

On the next morning James went down to the basement to check the hot water heater and discovered that the pilot light was out. He detected no smell of gas at this time. As he lit a match to ignite the pilot, there was an explosion and a flash fire broke out. 7 James, who had caught on

Page 585

fire, crawled out of the basement and rolled around until he extinguished the flames. He sustained third degree burns...

To continue reading

Request your trial
65 practice notes
  • Apodaca v. AAA Gas Co., No. 22
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 11, 2003
    ...to propane powered vehicles because of the low risk of harm with the exercise of reasonable care); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587-89 (Colo.1984) (en banc) (instructing on degree of care required of propane suppliers in negligence claim). Moreover, Plaintiffs and Defenda......
  • Camacho v. Honda Motor Co., Ltd., No. 85SC112
    • United States
    • Colorado Supreme Court of Colorado
    • July 13, 1987
    ...(Second) of Torts section 402A (1965). Smith v. Home Light & Power Co., 734 P.2d 1051 (Colo.1987); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984); Anderson v. Heron Eng'g Co., 198 Colo. 391, 604 P.2d 674 (1979); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975). ......
  • Palmer v. A.H. Robins Co., Inc., No. 81SA149
    • United States
    • Colorado Supreme Court of Colorado
    • June 4, 1984
    ...not on the fault or culpability of a defendant in introducing the product into the stream of commerce." Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 589 (Colo.1984); see, e.g., Jackson v. Harsco Corp., 673 P.2d 363 (Colo.1983); Hiigel, 190 Colo. 57, 544 P.2d 983; Kinard v. Coats Co., Inc......
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2015
    ...hold that Bondsteel at least forfeited this issue.1. Law ¶ 6 Preservation is a threshold question. See Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 586 (Colo. 1984) ("[W]e must consider as a threshold matter whether [the party's arguments below] were adequate to preserve the issue ... fo......
  • Request a trial to view additional results
65 cases
  • Apodaca v. AAA Gas Co., No. 22
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 11, 2003
    ...to propane powered vehicles because of the low risk of harm with the exercise of reasonable care); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587-89 (Colo.1984) (en banc) (instructing on degree of care required of propane suppliers in negligence claim). Moreover, Plaintiffs and Defenda......
  • Camacho v. Honda Motor Co., Ltd., No. 85SC112
    • United States
    • Colorado Supreme Court of Colorado
    • July 13, 1987
    ...(Second) of Torts section 402A (1965). Smith v. Home Light & Power Co., 734 P.2d 1051 (Colo.1987); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984); Anderson v. Heron Eng'g Co., 198 Colo. 391, 604 P.2d 674 (1979); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975). ......
  • Palmer v. A.H. Robins Co., Inc., No. 81SA149
    • United States
    • Colorado Supreme Court of Colorado
    • June 4, 1984
    ...not on the fault or culpability of a defendant in introducing the product into the stream of commerce." Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 589 (Colo.1984); see, e.g., Jackson v. Harsco Corp., 673 P.2d 363 (Colo.1983); Hiigel, 190 Colo. 57, 544 P.2d 983; Kinard v. Coats Co., Inc......
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2015
    ...hold that Bondsteel at least forfeited this issue.1. Law ¶ 6 Preservation is a threshold question. See Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 586 (Colo. 1984) ("[W]e must consider as a threshold matter whether [the party's arguments below] were adequate to preserve the issue ... fo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT