Gist v. Vulcan Oil Co.
| Decision Date | 01 April 1994 |
| Citation | 640 So.2d 940 |
| Parties | Russ GIST and Pam Gist v. VULCAN OIL COMPANY and Jerry's Food Mart, Inc. 1921616. |
| Court | Alabama Supreme Court |
S. Shay Samples, Robert D. Word III and Pamela D. Beard of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, and Robert S. Gargis, Tuscumbia, for Russ Gist and Pam Gist.
Mark S. Boardman and Perryn Godbee Carroll of Boardman, Tyra & Godbee, P.C., Birmingham, for Vulcan Oil Co.
Roderick K. Nelson and Sue E. Williamson of Lamar, Nelson & Miller, P.C., Birmingham, for Jerry's Food Mart, Inc. On Application for Rehearing
The opinion of February 4, 1994, is withdrawn, and the following opinion is substituted therefor.
Russ Gist and Pam Gist sued Phillips 66 Company, Inc.; Vulcan Oil Company; and Jerry's Food Mart, alleging negligence and wantonness in the installation of fuel dispensing pumps and distribution of fuel products. Specifically, the Gists alleged that the defendants had improperly placed a kerosene pump beside a gasoline pump at Jerry's Food Mart; that the improper placement of the pump caused Mrs. Gist to mistakenly purchase gasoline for the Gists' kerosene heater; and that Mr. Gist was injured when the gasoline ignited as he tried to refuel a kerosene heater with it. Mr. Gist sued for damages for personal injury; Mrs. Gist claimed damages for loss of consortium.
The trial court entered a summary judgment for Phillips 66 Company and directed a verdict on the wantonness issue at the close of the plaintiffs' evidence. The jury returned a verdict in favor of Vulcan Oil and Jerry's Food Mart on the negligence count, and the trial court entered a judgment pursuant to that verdict. The Gists appeal. 1
We agree with the trial court that the Gists' evidence was not sufficient to support a finding of wantonness. Therefore, we affirm that portion of the judgment based on the directed verdict against the wantonness claim. However, we reverse that portion of the judgment based on the jury verdict.
We begin by noting these facts from the record: In January 1990, another couple, Mark Hall and Melissa Chamblee, was visiting the Gists in their home, and the four decided to rent a video. The two women went to Jerry's Food Mart to purchase kerosene for the Gists' kerosene heater. Jerry's Food Mart was a convenience store/gasoline station that sold fuels it purchased from Vulcan Oil; Vulcan Oil owned the gasoline islands and pumps from which the fuel was dispensed. At Jerry's Food Mart, Mrs. Gist went to a fuel island from which she had seen her husband pump kerosene on two or three occasions. One side of the pump was clearly marked "Kerosene," and the other side was marked with the Phillips 66 company logo for gasoline.
Mrs. Gist opened the hatchback of her car, where a fuel container was stored. Without removing the container, she filled it with gasoline instead of kerosene. While she was filling the container, Mr. Gist and Mr. Hall arrived at Jerry's Food Mart and went inside; they did not go to the area where Mrs. Gist was pumping fuel. The men rented a video from the store, while Mrs. Gist finished her task. She joined the group inside and purchased snacks, and the four then left Jerry's Food Mart.
After returning home, Mr. Gist attempted to refuel his kerosene heater, while it was lit, with the gasoline Mrs. Gist had bought. When Mr. Gist did so, the gasoline exploded into flames on the carpet around the heater, and he tried to stamp them out. Mr. Gist's clothing caught on fire and he sustained second- and third-degree burns to his arms and legs. Those injuries are the basis of this action.
At trial, the Gists argued that the defendants wantonly and negligently caused the explosion by placing kerosene and gasoline in the same fuel dispenser. The defendants argued, among other things, that the dispenser was clearly marked and that Mrs. Gist was contributorily negligent in mistakenly pumping the gasoline. The defendants further argued that Mrs. Gist was acting as her husband's agent while pumping and buying the fuel and that her contributory negligence was thus imputed to him and barred his recovery for any injuries caused by the fire.
At the close of the evidence, the trial court instructed the jury as to agency and contributory negligence, and the dispositive issue before us now is whether the trial court erred in its instruction. The trial court instructed the jury as follows:
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