Ellis v. Ferrellgas, L.P.

• Jurisdiction: Oregon
• Parties: Harold A. ELLIS, Plaintiff-Respondent, v. FERRELLGAS, L.P., and Ferrellgas, Inc., Defendants-Appellants, and Joseph Westby, Defendant.
• Citation: 211 Or. App. 648,156 P.3d 136
• Docket Number: 033066L3.,A127989.
• Court: Oregon Court of Appeals
• Decision Date: 04 April 2007

156 P.3d 136

211 Or. App. 648

Harold A. ELLIS, Plaintiff-Respondent, v. FERRELLGAS, L.P., and Ferrellgas, Inc., Defendants-Appellants, and Joseph Westby, Defendant.

033066L3.

A127989.

Court of Appeals of Oregon.

Argued and Submitted October 30, 2006.

Decided April 4, 2007.

Paul S. White argued the cause for appellants. With him on the briefs were John R. Fletcher, R. Daniel Lindahl, and Bullivant Houser Bailey, PC, Portland.

Dennis H. Black, Medford, argued the cause for respondent. With him on the brief was Black, Chapman, Webber, Stevens, Petersen & Lundblade.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge,^* and WOLLHEIM, Judge.

EDMONDS, P.J.

Plaintiff was injured in a propane gas explosion and filed a civil action for damages based on negligence and strict liability against defendants, who supplied and serviced the propane tank involved in the explosion. Defendants moved for summary judgment, and plaintiff cross-moved for partial summary judgment on the strict liability claim. The trial court granted plaintiff's motion on the ground that, based on McLane v. Northwest Natural Gas Co., 255 Or. 324, 467 P.2d 635 (1970), defendants' activity in furnishing the propane constituted an abnormally dangerous activity as a matter of law, resulting in strict liability. The case went to trial on the issue of damages, and plaintiff filed a motion in limine to strike defendants' comparative fault defense, which the trial court granted. Defendants appeal from the judgment for plaintiff, arguing that the trial court erred in granting plaintiff's summary judgment motion on the ground that they were engaged in an abnormally dangerous activity, and in striking their comparative fault defense. We reverse.

Plaintiff worked at Truss-Span lumberyard in Central Point. Part of plaintiff's job duties included driving a propane-powered forklift, which he had to refuel about once a day. The lumberyard had a 499-gallon propane tank that was installed and serviced by defendants. The tank had a dispensing hose that was coiled on the ground behind a crash post when not in use. Plaintiff testified that, on the day of the accident, he was backing the forklift to the propane tank to refuel, and that the next thing that he remembered was lying on the ground after an explosion. In his complaint, plaintiff alleged, with respect to his strict liability claim, that "[a]t all times material herein, defendants furnished for plaintiff's use propane gas at the aforementioned propane gas facility. Defendants' conduct was the proximate cause of damage to plaintiff."

Defendants' motion for summary judgment was accompanied by an affidavit from an expert witness stating that, in the expert's opinion, the accident was caused when plaintiff backed onto or ran over the propane hose with the forklift, causing a small leak. The expert opined that propane escaped from the leak until it found an ignition source, which was most likely the forklift, and that "[t]here was a sustained fire that eventually caused the hose to sever. Once the leak became large enough, the excess flow valve on the dispensing equipment activated." The expert also averred that, in his professional opinion, defendants "did nothing to fall below the industry standards and/or regulations which caused this accident. This accident could not have occurred in the absence of someone's negligence. Propane would not simply have escaped for no reason."

In response, plaintiff filed a cross-motion for partial summary judgment on his strict liability claim. In support of the motion, plaintiff submitted his own expert witness testimony. The expert stated that,

"Based upon my knowledge of propane, it is a volatile and hazardous flammable substance. Propane explosions and consequent fires, even from small cylinders, can cause severe injuries. Contrary to the defense motion for summary judgment which calls the 499 gallon propane dispensing tank small * * *, it is my opinion that this size tank has the capability to render huge damage if ignited. For example, had the 499 gallon propane tank involved in this case exploded, it would have caused a fire ball several hundred feet in diameter. Catastrophic injury and property damage would be the result in such an event. As it was, even with only a relatively small amount of the tank's contents igniting because of a rupture in the dispensing hose, extensive property damage occurred to an adjacent structure and [plaintiff] was blown off of his fork lift and severely burned.

"* * * Based upon my knowledge of propane and propane storage equipment, it is possible that the accident in question before this court could have happened without anyone's negligence."

As stated above, the trial court granted plaintiff's motion, concluding that, under McLane, defendants' activity in furnishing the propane constituted an abnormally dangerous activity as a matter of law, resulting in strict liability. The case was then set for trial on the issue of damages. The day before trial, plaintiff filed a motion in limine and an alternative motion to strike defendants' comparative fault defense on the strict liability claim. The trial court granted plaintiff's motion. Thereafter, the jury awarded damages to plaintiff. The trial court ordered that a limited money judgment be entered in conformance with the jury's verdict, and held that plaintiff's negligence claim would not be tried until "the court of appeals renders a decision on the judgment entered in the ultrahazardous activity case." This appeal followed.

In their first and second assignments of error, defendants argue that the trial court erred in denying their motion for summary judgment and granting plaintiff's motion, and "by holding as a matter of law that the propane tank and dispensing hose constituted `engaging in an abnormally dangerous activity.'" Defendants assert that "[t]his case involves a relatively small 499-gallon propane tank with a dispensing hose. * * * The tank and hose do not satisfy the Oregon Supreme Court's stated criteria for what is an abnormally dangerous activity."

We review an order granting partial summary judgment for errors of law. ORCP 47 C;¹ Andres v. American Standard Ins. Co., 205 Or.App. 419, 423, 134 P.3d 1061 (2006). Where, as here, cross-motions for summary judgment were made, and defendants assign error to both the denial of their motion and the granting of plaintiff's motion, both are subject to review. Cochran v. Connell, 53 Or.App. 933, 939-40, 632 P.2d 1385, rev. den., 292 Or. 109, 642 P.2d 311 (1981). Each party that moved for summary judgment has the burden of demonstrating that there are no issues of material fact and that the movant is entitled to judgment as a matter of law. McKee v. Gilbert, 62 Or.App. 310, 321, 661 P.2d 97 (1983). We review the record for each motion in the light most favorable to the party opposing that motion. Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978).

Whether an activity is ultrahazardous or abnormally dangerous is a question of law for the court. Loe et ux. v. Lenhard et al., 227 Or. 242, 249, 362 P.2d 312 (1961). Although never expressly adopted in Oregon, see Burkett v. Freedom Arms Inc., 299 Or. 551, 704 P.2d 118 (1985), among the factors to be considered in determining whether an activity is abnormally dangerous are factors set forth in section 520 of the Restatement (Second) of Torts (1965):

"(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

"(b) likelihood that the harm that results from it will be great;

"(c) inability to eliminate the risk by the exercise of reasonable care;

"(d) extent to which the activity is not a matter of common usage;

"(e) inappropriateness of the activity to the place where it is carried on; and

"(f) extent to which its value to the community is outweighed by its dangerous attributes."

As the Supreme Court stated in Burkett, Oregon courts

"[do] not necessarily adhere to the six factors listed in section 520 when determining whether an activity qualifies as abnormally dangerous. While some of the factors may be relevant to the inquiry, our focus has been on `assessing abnormal hazards by their potential for harm of exceptional magnitude or probability despite the utmost care.'"

Burkett, 299 Or. at 557-58, 704 P.2d 118 (quoting Koos v. Roth, 293 Or. 670, 683, 652 P.2d 1255 (1982)).

In McLane, the Supreme Court found the storage of large amounts of natural gas in a populated area to be abnormally dangerous. McLane, 255 Or. at 328, 467 P.2d 635. The court explained that "the principal factor which brings the activity within the abnormally dangerous classification is not so much the frequency of miscarriage (although this may be important) as it is the creation of an additional risk to others which cannot be alleviated and which arises from the extraordinary, exceptional, or abnormal nature of the activity."

Id. at 329, 467 P.2d 635. Also, in Koos, 293 Or. at 682, 652 P.2d 1255, the court clarified that

"a dangerous activity is not an abnormal hazard, even though its intrinsic dangers cannot be prevented, if it is a `common usage.' That term has been extended beyond its original meaning of widespread and accepted individual practice to embrace also essential service activities like the distribution of gas or electricity, see McLane, * * *. In other words, a dangerous activity is not extraordinarily so if nearly everyone routinely does it or expects to have it done for him."

Two sources of information, legal and factual, are relevant to answering the question of whether an activity constitutes an abnormally dangerous activity. Speer & Sons Nursery v. Duyck, 92 Or.App. 674, 676-77, 759 P.2d 1133 (1988). For sources of legal information, we look to statutes and regulations that reflect policy and value judgments regarding an activity by the legislature or administrative agencies. Id. at 677, 759 P.2d 1133. H...