Jones v. Hittle Service, Inc.

• Decision Date: 08 May 1976
• Docket Number: No. 47953,47953
• Citation: 219 Kan. 627,549 P.2d 1383
• Parties: Sandra M. JONES et al., Appellants, v. HITTLE SERVICE, INC., et al., Appellees.
• Court: Kansas Supreme Court

Page 1383

549 P.2d 1383

219 Kan. 627

Sandra M. JONES et al., Appellants, v. HITTLE SERVICE, INC., et al., Appellees.

No. 47953.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court

1. Liability without fault under the doctrine of Rylands v. Fletcher, L.R. 1 Ex. 265 (1866), is imposed for damage caused by a dangerous instrumentality only where the instrumentality has escaped from the control of the defendant.

2. Compliance with a legislatively or administratively enacted standard is evidence of due care and that a conforming product is not defective, but such compliance does not preclude a finding of negligence or product defect where a reasonable man would take additional precautions.

3. Absent substantial competent evidence that the standard is inadequate, or special circumstances putting the seller on notice that additional precautions are necessary, evidence of compliance with a legislative standard is prima facie evidence of due care and that a conforming product is not defective.

4. A seller has a duty to warn concerning a dangerous product only when he knows or has reason to know that the product is or is likely to be dangerous for the use for which it is supplied.

5. Failure to warn of the dangerous nature of a product may be negligence or make the product defective under the doctrines of strict liability and implied warranty.

6. The manufacturer of LP gas who sells it to a distributor in bulk fulfills his duty to the ultimate consumer when he ascertains that the distributor to whom he sells is adequately trained, is familiar with the properties of the gas and safe methods of handling it, and is capable of passing on his knowledge to his customers. A manufacturer so selling owes no duty to warn the ultimate consumer, and his failure to do so is not negligence and does not render the product defective.

7. Liquified petroleum gas is potentially a highly dangerous substance and those dealing with it are held to a high degree of care.

8. A retail distributor of LP gas is under a duty to warn his customers of the characteristics and dangers of the product, although there is no duty to warn of dangers actually known to them.

9. In an action against three manufacturer-wholesalers and a retail distributor of LP gas for damages arising out of an explosion, where summary judgment was rendered in favor of all defendants, it is held: (a) None of the defendants can be found liable for an insufficient level of odorization of the gas; (b) Neither can the three manufacturer-wholesalers who sold in bulk be found liable for failing to train their distributor or for failing to warn the ultimate consumer; and (c) there is a jury question as to whether the ultimate purchasers were sufficiently aware of the characteristics of the gas so as to excuse the distributor from giving them appropriate warnings.

Harker E. Russell, of Kahrs, Nelson, Fanning, Hite & Kellogg, of Wichita, argued the cause, and Darrell D. Kellogg, Wichita, was with him on the brief for appellants.

James Z. Hernandez, of McDonald, Tinker, Skaer, Quinn & Harrington, Wichita, argued the cause and was on the brief for appellee, Hittle Service, Inc.

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Richard D. Ewy and Christopher P. Christian, Wichita, were on the brief for appellee, Cities Service Oil Co.

Richard I. Stephenson, of Fleeson, Gooing Coulson & Kitch, Wichita, argued the cause, and Donald R. Newkirk, Wichita, was with him on the brief for appellee, Phillips Petroleum Co., Inc.

H. E. Jones, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause, and Michael L. Jones, Wichita, was with him on the brief for appellee, Mobil Oil Corp.

FOTH, Commissioner:

These are consolidated actions seeking damages for the wrongful death and pain and suffering of three persons who died as the result of a propane gas explosion on the Homer Smith farm near Mulvane, Kansas. Named as defendants were Hittle Service, Inc., the retail distributor that furnished propane to the Smith farm, and Cities Service Oil Co., Phillips Petroleum Co., Inc., and Mobil Oil Corporation, all of whom manufactured and supplied bulk propane to Hittle. After discovery was complete all four defendants filed motions for summary judgment. The parties stipulated that the record at that time contained all the evidence going to the question of liability, and that the court should rule on the motions without considering any affirmative defenses such as contributory negligence. The record consisted of stipulations, depositions, requests for admissions, and interrogatories. The trial court sustained the motions in favor of all defendants, and plaintiffs have appealed.

The explosion occurred on August 5, 1970, in a storm cellar just south of the Smith farm home. The Smiths' daughter, Nadine Jones, and her husband Kenneth had come by to pick up some tomatoes. Mrs. Ethelda Smith, her daughter and son-in-law went into the cellar where the tomatoes were stored, with Kenneth in the lead. He had reached the bottom and started to light a cigarette when the explosion took place. All three were badly burned and later died.

Propane was supplied to the Smith house by an underground pipe from a tank located to the east of the house. Just before the line entered the house it had a 'T' joint, from which another underground line ran south to a chicken brooder house. The brooder house had not been used for some time, and the line to it was capped inside the unused building. The brooder house line ran less than two feet from the storm celler. Investigation after the explosion revealed that the gas line to the house was sound but the brooder line had extensive leaks. In addition, the storm cellar had numerous cracks in the walls and steps. It was generally agreed that the lethal gas had leaked from the brooder line, seeped through the intervening foot or two of earth, and collected in the cellar.

Propane gas in its natural state is odorless, colorless, volatile, inflammable, and when mixed with air it is explosive. It is also heavier than air, so it has a tendency to collect in low places like the Smiths' storm cellar.

Because propane is odorless an odorizing agent is added to make its presence perceptible to the human nose. The propane delivered to the Smiths was odorized with ethyl mercaptan, which has a foul smell described by all witnesses as being like that of rotten eggs or a dead mouse.

The Smiths first began using liquified petroleum gas around 1941, at which time they installed a butane system. Butane has characteristics similar to those of propane, and is artificially odorized in the same way. The Smiths had a leak in the butane line in 1955 or 1956, resulting in a fire under their house. At that time they switched to propane and installed a new tank and line to the house. The brooder house line, however, was apparently not replaced at that time.

A few days before the explosion of August 5, 1970, Mrs. Smith returned from a trip to the storm cellar and reported to her husband a strange smell, like something dead. The Smiths discussed the smell and concluded it was probably a dead mouse, since Mr. Smith had put out poison some time earlier. Mr. Smith testified to the conversation, and had told others about it shortly after the explosion. Mrs. Smith told her son about the smell and discussion when she was in the hospital after the explosion.

Liability was asserted against all four defendants on four separate theories: negligence, strict liability in tort, breach of implied warranty, and absolute liability or liability without fault.

We may dispose of the last theory summarily: Rylands v. Fletcher, L. R. 1 Ex. 265 (1866) has indeed been followed in this state. See, State Highway Comm. v. Empire Oil & Ref. Co., 141 Kan. 161, 40 P.2d 355, and cases cited therein. Broadly stated the doctrine is that one who has under his control a dangerous instrumentality is subject to liability without fault if it escapes and causes damage. Here, none of the defendants had the propane in its control when it escaped; none is chargeable with any responsibility for the Smiths' propane system. The rule is inapplicable, and we decline to make sellers of propane insurers of the safety of their customers under all circumstances.

The other three theories are all based in one way or another on two claimed 'acts of omission' of the defendants:

First, it is claimed all are responsible for an insufficient level of odorant in the propane. Had there been enough ethyl mercaptan in the Smiths' propane, the argument goes Mrs. Smith would never have mistaken its smell for a dead mouse and Kenneth Jones would never have tried to light his cigarette. Failure to achieve that level of odorization was the result, it is claimed, of the negligence of all defendants, and constitutes a defect in the product so as to impose strict liability in tort and constitute a breach of warranty.

Second, plaintiffs claim all defendants beached their duty to give adequate warning of the hazards and characteristics (including odor) of propane gas. The failure to warn, it is asserted, like the inadequate odorization, constituted both negligence and a 'defect' in the product under the theories of strict liability and implied warranty.

We turn first to the level of odorization. The evidence reveals that standards for handling LP gas have been of concern to the National Fire Protection Association since 1924. Its Committee on Liquified Petroleum Gas developed standards over the years which in due course were consolidated as NFPA Standard No. 58, most recently revised in 1965 (as of the hearing below). Section B. 1 of that standard deals with odorization, and is nationally recognized by the LP gas industry, federal regulatory agencies, and state regulatory agencies. The Kansas state fire marshal, charged by former K.S.A. 31-207 with making rules and regulations for the storage,...