Ellis v. Golconda Corp., s. CC-47

• Decision Date: 29 November 1977
• Docket Number: Nos. CC-47,CC-51,s. CC-47
• Citation: 352 So.2d 1221
• Parties: Leon ELLIS, McKenzie Tank Lines, Inc., a Florida Corporation, and Carriers Insurance Company, a Foreign Corporation, etc., Appellants, v. GOLCONDA CORPORATION a/k/a Bastian and Blessing, a corporation, Appellee. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. COLEMAN'S MUSIC AND GAMES CO., INC., etc., Appellee. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Sallie PETERSON et ux., Appellees. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Sharon Margaret NOTAGE, etc., et al., Appellees. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Harris R. LAMBE, et ux., Appellees. to
• Court: Florida District Court of Appeals

Page 1221

352 So.2d 1221

Leon ELLIS, McKenzie Tank Lines, Inc., a Florida Corporation, and Carriers Insurance Company, a Foreign Corporation, etc., Appellants, v. GOLCONDA CORPORATION a/k/a Bastian and Blessing, a corporation, Appellee.

McKENZIE TANK LINES, INC., etc., et al., Appellants, v. COLEMAN'S MUSIC AND GAMES CO., INC., etc., Appellee.

McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Sallie PETERSON et ux., Appellees.

McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Sharon Margaret NOTAGE, etc., et al., Appellees.

McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Harris R. LAMBE, et ux., Appellees.

Nos. CC-47 to CC-51.

District Court of Appeal of Florida, First District.

Nov. 29, 1977.

Rehearing Denied Dec. 30, 1977.

Raymond A. Haas of Haas & Boehm, Daytona Beach, and Sam Spector, Tallahassee, for appellants.

Gary H. Rushmer of Akerman, Senterfitt & Eidson, Orlando, Thomas R. Hess of Ossinsky & Krol, and Wesley A. Fink of Fink & Loucks, Daytona Beach, for appellees.

RAWLS, Acting Chief Judge.

This case involves an explosion of liquid petroleum gas which escaped from a tank truck owned by McKenzie Tank Lines, Inc., in a semi-residential area in Holly Hill, Florida. While transferring the gas from the tank truck to a bulk storage plant, ¹ Leon Ellis, a truck driver for McKenzie, lost control of the liquid hose line connecting the two tanks, resulting in the hose whipping about due to the force of the escaping gas and temporarily blinding Ellis. There are two versions as to the next occurrence: 1) Ellis either ran in an effort to procure help from a police officer, or 2) as he ran from the scene he was spotted by a police officer. Apparently, the jury believed the latter version. In any event, Officer Boccuzzi talked to Ellis and immediately radioed for fire equipment, gas masks, and requested Florida Power to cut off its electricity. Boccuzzi, possibly with the assistance of Ellis, began evacuating residents of the area. Also, Boccuzzi attempted to stop a Florida East Coast Railway train from entering the area. Meanwhile, the liquid propane gas vapors concentrated and accumulated in the general area encompassing one to two blocks. The Florida East Coast train finally came to a halt after the engine had penetrated the gas cloud. After an exchange of words over the noise of the running locomotive engine, the train proceeded through the gas cloud. Boom!! The gas exploded within a close time frame of the train emerging from the gas cloud. Approximately ten minutes after the gas began escaping, Lorenzo Oliver, service manager for Florida Bottle Gas and a 24-carat hero, walked up to the burning truck and closed the ball valve, thus shutting off the gas resulting in the fire going out. As a result of the gas explosion, the following suits were filed:

Plaintiffs Petersons and Lambes sued McKenzie, Ellis, Carriers Insurance Company, and Florida Bottle Gas, Inc.

Plaintiffs Notage and Coleman's Music and Games Co., Inc., sued McKenzie, Ellis, Carriers, Florida Bottle Gas and Florida East Coast Railway.

McKenzie, Ellis and Carriers brought a third party complaint against Golconda Corporation seeking contribution and/or indemnification.

In addition to the actions here considered, appellants advise in their brief that some 120 claims, including approximately twelve other lawsuits, are pending as a result of the explosion.

The suits now reviewed were consolidated for trial resulting in jury verdicts against the appellants alone for a total of $121,459.78 compensatory damages and the additional sum of $70,000.00 for punitive damages. A verdict was rendered against appellants and in favor of Golconda Corporation on appellants' third party complaint for contribution; the trial court having entered a directed verdict eliminating claims for indemnification filed by Golconda and appellants against one another. Appellants (hereafter referred to as McKenzie) now seek review of the final judgment in favor of Golconda; the punitive damages awarded in all the cases; and certain compensatory damages awarded to Notage. The five cases appealed were consolidated by order of this court.

Golconda

The tank truck involved in this incident was equipped with an internal Rego Flowmatic valve designed, purchased and installed for the purpose of providing an automatic cutoff of liquid propane gas flow in the event of accidental escape of quantities of gas through the line. When a pump is activated, the Rego valve, which operates on a differential pressure principle, allows gas to flow from the tanker to the last outpost on the tanker, a ball valve. The Rego valve had been incorporated in the subject tank truck at the time appellant McKenzie purchased the tanker in 1965. Maintenance records of McKenzie reflected that the Rego valve had been removed at least five times. Other evidence as to the Rego valve reflected that McKenzie's drivers oftentimes tied the Rego valves open in order to expedite the unloading of gas. This practice would result in overriding the safety function of the Rego valve. There was no direct evidence that Ellis, the driver of the truck, manually overrode the Rego valve in the instant case.

In asserting liability on Golconda's part, McKenzie sought to proffer tests, designs and comparisons of a second and newer Rego valve which had been manufactured after the date the subject Rego valve was installed. McKenzie sought to introduce the second Rego valve, together with comparative tests, to prove that it was manufactured to correct alleged defects inherent in the valve being utilized. The trial court denied a formal proffer, however, this record discloses an adequate proffer upon which to review the trial court's denial which was founded upon the lack of relevancy. McKenzie had ownership and control of the valve from 1965 until the date of the accident on January 4, 1974. Changes to the newer Rego valve were designed and incorporated into the manufacture of same in 1968 based upon modern technology that was not available in 1965. Generally, evidence of a change in conditions or proof of repairs made after an injury is never admissible as proof of defendant's negligence. City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964); Mahoney v. Roper Wright Manufacturing Company, Inc., 490 F.2d 229 (7th Cir. 1973); and Smyth v. Upjohn Co., 529 F.2d 803 (2nd Cir. 1975). No competent proof was adduced or proffered by McKenzie that the Rego valve was in a defective condition when it purchased the tank truck in the year 1965. To the contrary, the Rego valve was utilized for some nine years, and during this period was oftentimes maintained and repaired by McKenzie. See Second Restatement of Torts, § 402A (1965); Annot., 13 A.L.R.3d 1057 (1967). At minimum, plaintiff, in a product liability case involving long passage of time between manufacture and injury, is required to produce evidence that the product was defective when it left defendant's hand. Strict liability in tort does not connote liability without fault. That the manufacturer subsequently improved the product it placed in commerce with new materials and technology is not an evidentiary fact ipso facto to infer negligence in the manufacture of the original product. The trial court correctly held that McKenzie's proffer of tests, designs and comparisons of the second Rego valve was not relevant to the issue and thus not admissible.

As to Golconda, McKenzie next asserts that the trial court erred in failing to give a charge to the jury, as requested, upon Golconda's failure to properly instruct, train or warn it concerning the usage of the Rego valve. Although McKenzie, by its brief, advises that it presented to the court a form instruction permitting the jury to consider this issue, we do not find such instruction in this voluminous record. Golconda vividly calls such omission to our attention to which McKenzie responds that the record reflects the following short colloquy with the court wherein McKenzie advised: "We also would like to note for the record the court not instruction (sic) on Golconda's negligence failure to warn." The trial court responded that sufficient instructions had been given. Florida Rule of Civil Procedure 1.470(b) ² requires that a party's requests for jury instructions must be in writing and submitted to the court. 32 Fla.Jur., Trial § 145. Further, we have reviewed the instructions given by the trial court, and in our opinion such amply covered McKenzie's claim against Golconda.

Did the Trial Court Err in Permitting Notage and Coleman to Amend During Trial and Claim Punitive Damages?

Plaintiffs Petersons and Lambes initially prayed for punitive damages. Coleman's Music and Games Co., Inc., and the Notage cases were consolidated and thus became the first of the "gas explosion cases" to proceed to trial. McKenzie was on notice from the outset that the Petersons and Lambes were seeking punitive damages and that it would have to defend these claims. Under these circumstances, pursuant to the provisions of Fla.Rule of Civ.P. 1.190, the trial court permitted Coleman's and Notage to amend their pleadings praying for punitive damages during the course of the trial. The trial court did not err in permitting the amendments. Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA 1971).

Punitive Damages

Punitive damages are generally defined as damages which are given as an enhancement of compensatory damages because of the wanton, reckless, malicious or oppressive character of the acts complained of. 22 Am.Jur.2d, Damages § 236. The terms "punitive" and "vindictive" damages are used interchangeably. Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884). Exemplary or punitive damages are assessable dependent upon circumstances showing moral turpitude or atrocity in causing an injury that is wanton and malicious or gross and outrageous. Jacksonville Frosted Foods, Inc. v. Haigler, 224 So.2d 437 (Fla. 1st DCA 1969); Cannon v....