Fulbright v. Klamath Gas Co.

• Citation: 271 Or. 449,533 P.2d 316
• Parties: Wilson E. FULBRIGHT, Appellant, v. KLAMATH GAS COMPANY, a corporation, and Norcal Gas Company, a corporation, Respondents.
• Decision Date: 01 April 1975
• Court: Supreme Court of Oregon

Page 316

533 P.2d 316

271 Or. 449

Wilson E. FULBRIGHT, Appellant, v. KLAMATH GAS COMPANY, a corporation, and Norcal Gas Company,

a corporation, Respondents.

Supreme Court of Oregon.

Argued and Submitted Sept. 6, 1974.

Decided April 1, 1975.

Glenn D. Ramirez, Ramirez & Hoots, Klamath Falls, argued the cause and filed a brief for appellant.

Stanley C. Jones, Giacomini, Jones & Zamsky, Klamath Falls, argued the cause and filed a brief for respondents.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, BRYSON and SLOPER, JJ.

HOLMAN, Justice.

Plaintiff brought an action to recover damages resulting from personal injuries suffered while using defendants' potato vine burner. The action is in two counts, one in negligence and the other in products liability. The trial court granted a nonsuit in the products liability count and a directed verdict in the negligence count. Plaintiff appeals.

As is required in such situations, the facts will be recounted in a manner as favorable to plaintiff as the evidence will permit. Plaintiff was employed as a farm hand by a potato farmer in Klamath County. Defendants were in the business of selling propane gas, related gas appliances, and assorted camping equipment. Defendants furnished potato vine burners to farm customers free of charge as a means of promoting their sale of propane gas. Vine burners are used to burn vegetation prior to digging potatoes to prevent the potato vines from clogging the mechanical diggers.

A potato vine burner is a portable unit which consists of two large pressurized propane tanks mounted side by side in an open trailer frame. To the rear and connected to the pressurized tanks are located four burning units which direct an open flame towards the ground much like four large blow torches. Separating the propane tanks from the burners is a heat shield made of galvanized steel sheets, the purpose of which is to protect the tanks from direct contact with the high temperature of the open flame of the four burner units. The tanks are equipped with a safety pressure relief valve which was designed to open automatically when the internal tank pressure exceeded approximately 250 PSI. The valve would open if such pressures were attained and cause the release of propane gas and liquid into the air until the pressure fell below the valve's designed safety margin, at which point the valve would then close and reestablish the integrity of the pressurized tanks. This unit was located approximately on the trailer centerline on the top of the two propane tanks.

The burner was towed up and down the field by a tractor operated by plaintiff. While the burner was being used in this manner, pressure in the propane tanks increased because of heat from the burners. When the pressure reached a critical level, the safety valve on top of the tanks was activated, and propane was released into the air and was ignited by the burners. Plaintiff was enveloped in the resulting flame.

The issue concerning the sufficiency of the evidence of negligence will be considered first. Plaintiff's allegations of negligence are as follows:

'(a) in failing to inspect and test said burner prior to turning it over to plaintiff's employer for use by plaintiff.

'(b) in failing to provide an adequate and safe shield to protect the propane gas lines and tank from the heat of the burners in their normal and intended use.

'(c) in failing to provide a safety shield for plaintiff operator in the event of an explosion of the gas lines or tanks.

'(d) in failing to instruct plaintiff either directly or through his employer of the dangers of the propane vine burner or of a manner for its safe operation.

'(e) in failing to provide safety devices to shut off the burners in case of overheating or dangerous circumstances arising from non-burning gas.'

There was no evidence from which the jury could have found that a failure to inspect or test the burner in any way caused the accident. Nor was there any evidence from which the jury could have found that it was practicable or possible to furnish a more adequate heat shield between the burners and the tanks, a shield for the operator or a device to shut off the burners in case the tanks became overheated.

However, there was evidence that a potato vine burner should not be used in a strong wind because of the presence and proximity of the highly flammable propane gas, the open flame, the high heat, and the general nature and character of the machine. There also was evidence that the wind was strong, and that no warning had been given to plaintiff or to his employer concerning its use under such a circumstance. Plaintiff was using the machine for the first time and there was evidence from which it could be found that the manager of plaintiff's employer had no great familiarity with such a machine. It is the court's conclusion that the evidence was sufficient to raise a question of fact whether the defendants were negligent in providing the machine without warning of the potential danger associated with its use on windy days. The court believes a jury could find that there was sufficient chance of use by inexperienced persons on a windy day to justify a warning in the exercise of reasonable care. For this reason the judgment of the trial court must be reversed and the case remanded for a new trial.

The more difficult question in the case is whether this is the kind of a situation which falls within the ambit of the products liability rationale. Plaintiff alleged the burner was defective because it was designed to release the propane gas into the air where it could become ignited when the tanks became overheated. Defendants contend there is no evidence that the vine burner was defective in that there was no proof that it could have been designed in any manner which would have made it safer. Although there was no such evidence, there was proof by defendants that the burner should not have been used on a windy day and that there was no warning given concerning the danger of its use under such a condition. A failure to warn may make a product unreasonably dangerous. Comment J., Section 402A, Restatement (Second) of Torts. Phillips v. Kimwood Machine Co., 269 Or. 485, ---, 525 P.2d 1033 (1974). We believe there was evidence from which it could be found that the machine was dangerously defective because the defendants were charged with knowledge of its dangerous propensity and failed to warn plaintiff or his employer of its tendency to heat up on windy days and to discharge propane gas into the air. Defendants cannot escape because of lack of proof of defectiveness.

However, the more crucial problem is whether such lending of the burner comes within the rationale of products liability. Section 402A of the Restatement (Second) of Torts, which we have adopted with some minor modifications, provides:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

'(a) the seller is engaged in the business of selling such a product, and

'(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applies although

'(a) the seller has exercised all possible care in the preparation and sale of his product, and

'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

Defendants were not in the business of selling vine burners and did not sell one to plaintiff's employer. Plaintiff was not injured by anything which his employer purchased. The use of the vine burners was a bailment for mutual benefit because defendants promoted the sale of their product through the burner's use and plaintiff's employer was able to burn his potato vines. There are cases which hold that persons who are in the business of bailing for hire are subject to the rational of strict liability because there is no substantial difference between moving defective products into the stream of commerce by sale and doing so by leases. In Cintrone v. Hertz Truck Leasing and Rental Service, 45 N.J. 434, 212 A.2d 769 (1965), the court stated:

'A sale transfers ownership and possession of the article in exchange for the price; a bailment for hire transfers possession in exchange for the rental and contemplates eventual return of the article to the owner. By means of a bailment parties can often reach the same business ends that can be achieved by selling and buying. The goods come to the user for the time being and he benefits by their use and enjoyment without the burdens of becoming and remaining the owner. The owner-lessor benefits by receiving the rent for the temporary use. Vold, Sales, Supra, § 4, P. 24.' 45 N.J. at 447, 212 A.2d at 776.

And the court went on to say:

'A bailor for hire, such as a person in the U-drive-it business, puts motor vehicles in the stream of commerce in a fashion not unlike a manufacturer or retailer. In fact such a bailor puts the vehicle he buys and then rents to the public to more sustained use on the highways than most ordinary car purchasers. The very nature of the business is such that the bailee, his employees, passengers and the traveling public are exposed to a greater Quantum of potential danger of harm from defective vehicles than usually arises out of sales by the manufacturer. We held in Santor the liability of the manufacturer might be expressed in terms of strict liability in tort. Santor v. A. & M. Karagheusian, Inc., Supra (44 N.J. (52) at 66--67, 207 A.2d 305); see also, Restatement (Second), Torts, § 402A, comment m, pp. 9--10 (Tent. Draft No. 10, 1964). By analogy the same rule should be made applicable to the...