Lancaster Silo & Block Co. v. Northern Propane Gas Co.

• Decision Date: 23 May 1980
• Citation: 75 A.D.2d 55,427 N.Y.S.2d 1009
• Court: New York Supreme Court — Appellate Division
• Parties: LANCASTER SILO & BLOCK COMPANY, Lancaster Silo, Inc., Coral Pools, Inc., Appellants, v. NORTHERN PROPANE GAS COMPANY, Respondent. LANCASTER SILO & BLOCK COMPANY, Lancaster Silo, Inc., Coral Pools, Inc., Appellants, v. GOLAY & COMPANY, Respondent. LANCASTER SILO & BLOCK COMPANY, Lancaster Silo, Inc., Coral Pools, Inc., Appellants, v. GOLCONDA CORP., Rego Division, Bastian-Blessing Company, Respondent.

Page 1009

427 N.Y.S.2d 1009

75 A.D.2d 55

LANCASTER SILO & BLOCK COMPANY, Lancaster Silo, Inc., Coral

Pools, Inc., Appellants, v. NORTHERN PROPANE GAS COMPANY, Respondent.

LANCASTER SILO & BLOCK COMPANY, Lancaster Silo, Inc., Coral

Pools, Inc., Appellants, v. GOLAY & COMPANY, Respondent.

LANCASTER SILO & BLOCK COMPANY, Lancaster Silo, Inc., Coral

Pools, Inc., Appellants, v. GOLCONDA CORP., Rego Division, Bastian-Blessing Company, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 23, 1980.

Gross, Shuman, Brizdle, Laub & Gilfillan, Buffalo (David Laub, Buffalo, of counsel), for appellants.

Cox, Barrell, Walsh, Roberts & Grace, Buffalo (Gerald Grace, Jr., Buffalo, of counsel), for respondent Northern Propane Gas Co.

Damon, Morey, Sawyer & Moot, Buffalo (James M. Kieffer, Buffalo, of counsel), for respondent Golay & Co.

Barth, Sullivan & Lancaster, Buffalo (John J. Sullivan, Jr., Buffalo, of counsel), for respondent Golconda Corp., Rego Div., Bastian-Blessing Co.

Before CARDAMONE, J. P., and SIMONS, SCHNEPP, DOERR and WITMER, JJ.

SCHNEPP, Justice.

On February 2, 1971 propane gas leaking from a portable cylinder tank exploded soon after the tank had been stored in a small washroom alongside a gas water heater which operated with a constant pilot light. The explosion and resultant fire occurred on the business premises of the plaintiff, Lancaster Silo, Inc. ("Lancaster"), and destroyed the building owned by the plaintiff, Lancaster Silo & Block Company, and personal property of the plaintiff, Coral Pools, Inc., stored in the building.

Propane gas "bottled" in cylinders is used by Lancaster as a fuel to propel fork lift trucks used in its business of manufacturing farm silos and components thereof. At about 7:00 A.M. on February 2, 1971 Harold Brauen, an employee of Lancaster, preparing to operate a fork lift truck, opened the valve of a full tank of propane, which he had installed on the truck the previous day, and noticed that gas was leaking from the cylinder. He turned the valve which stopped the gas flow, checked the connections which appeared to be in order, turned the gas on again, and observed that it was still leaking. After repeating this process he closed the valve, removed the tank from the truck and placed it in a washroom alongside other propane tanks that were being stored there. Immediately after he set the tank down, Brauen heard the noise of something flying off the tank past his ear and the sound of propane gas escaping. He left the room quickly and the explosion occurred. Fortunately, Brauen escaped injury.

Lancaster possessed the propane gas cylinder pursuant to a rental agreement with the defendant, Northern Propane Gas Company ("Northern Propane"). Northern Propane regularly supplied Lancaster with full propane gas cylinders and later collected the empty tanks. The defendant Bastian-Blessing Company, Rego Division ("Rego"), manufactured valve assemblies and fittings for compressed gas systems. The entire valve assembly, attached at the top of the cylinder, served to regulate and control the flow of propane gas from the cylinder. The defendant Golay and Company ("Golay"), manufactured and distributed propane cylinders to which it attached the Rego valve assembly. Northern Propane purchased the assembled cylinders from Golay, filled them with propane gas and then marked them for commercial use.

The Rego valve includes a wheel assembly consisting of a hand wheel and brass bonnet. The bonnet consists of a hexagonal nut and a threaded shank. The nut screws or tightens the shank into a fitting which is part of the valve assembly. The hand wheel controls the release of the propane gas from the cylinder. A counterclockwise turn on the wheel opens the valve to release the gas and a clockwise turn closes the valve (a right-handed thread). The bonnet of the wheel assembly, however, is attached to the valve assembly on a left-handed thread. Thus, a counterclockwise turn on the wheel to open the valve is in the same direction that screws the wheel assembly into the valve assembly. Conversely, a clockwise turn on the wheel to close the valve is in the same direction that unscrews the wheel assembly from the valve assembly. Apparently the bonnet of the wheel assembly was tenuously held by its threads to its seat (valve assembly) and, after the hand wheel was turned to stop the flow of gas, it blew off the valve assembly releasing the propane gas which was ignited by the open pilot light under the water heater causing the explosion and fire.

On August 22, 1972 plaintiffs instituted an action for damages against Northern Propane alleging causes of action in negligence and breach of warranty. Thereafter, Northern Propane initiated third-party actions against Golay and Rego. Plaintiffs moved on August 8, 1974 to amend their pleadings to assert their claims directly against Golay and Rego. Special Term in granting the motion held that as third-party defendants Golay and Rego had full and timely notice of plaintiffs' claims and of the transactions and events from which the claims arose. Thus, the court held that the claims were deemed to have been interposed at the time of the third-party complaint for statute of limitation purposes (CPLR, § 203, subd. (e)). On appeal we affirmed this order "for the reasons stated at Special Term" (Lancaster Silo & Block Co. v. Northern Propane Gas Co., 54 A.D.2d 820, 388 N.Y.S.2d 1022). Plaintiffs allege in their amended complaint that defendant's breach of warranty and negligent design, development, manufacture, assembly, and inspection of the cylinder and valve assembly, and failure to provide warnings and instructions necessary to assure safe usage, caused the explosion and subsequent damage to plaintiffs. At trial, before the case was submitted to the jury, the trial justice erroneously dismissed plaintiffs' direct complaints against Golay and Rego, finding that the three-year statute of limitations barred plaintiffs' claims. Our prior decision in this case is the law of the case until modified or reversed by a higher court, and the trial court is bound by our decision (Bolm v. Triumph Corp., 71 A.D.2d 429, 434, 422 N.Y.S.2d 969; 10 Carmody-Wait 2d, N.Y.Prac., § 70:453; Siegel, N.Y.Prac., § 448; cf. Knorr v. City of Albany, 58 A.D.2d 904, 396 N.Y.S.2d 507; Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 271 N.Y.S.2d 5; see also, McLaughlin, Practice Commentary, 7B McKinney's Consol. Stat., C:302:11, p. 124).

At the close of the proof, the negligence cause of action was submitted to the jury which returned a verdict of no cause of action. Judgment was entered dismissing the complaint and third-party actions. On this appeal plaintiffs claim that the trial court, in addition to the error outlined above, erred in refusing to instruct the jury on the law of strict liability in tort and the duty of the defendants to warn. Plaintiffs also allege that the court erred in various evidentiary rulings including its refusal to admit evidence of post-accident modification of the valve by Rego. We reverse and grant a new trial.

At the trial, plaintiffs offered that the length of the threaded shank (.436 inches) of the Rego valve in issue which was manufactured in 1967 did not provide adequate gripping strength and did not conform to industry specifications. Plaintiffs demonstrated that standards promulgated in 1965 by the Compressed Gas Association, American National Standards Institute, fixed the shank length of the hexagon nut at .687 inches. Plaintiffs presented proof that because of the shorter length of the shank and its fewer threads, the Rego valve had a greater propensity to come loose and allow gas to escape than a valve which conformed with the industry standard. Further, plaintiffs submitted proof that it was unsafe to have a left-hand and a right-hand thread on the same fitting because this permitted the valve to come loose when the wheel was turned in a clockwise direction to shut off the gas. Plaintiffs also offered evidence that Northern Propane improperly and inadequately tested and inspected the filled tanks to detect leaks, that it improperly maintained and repaired the valve assembly, that the Rego excess-flow valve and internal components were defective, and that no warnings were provided as to the dangers of storing propane gas near an open flame.

Inasmuch as the underlying error of the court was its failure to charge "strict liability", some reference to the present state of the law dealing with the liability of manufacturers, makers of component parts, distributors and retailers of materials for damage caused by their products is relevant to our discussion of the issues in this case. It is well established that the plaintiff in a damage action based on the defective nature of a product may sue on any one or more of four theories: (1) negligence, (2) breach of express warranty, (3) breach of implied warranty, or (4) strict tort liability.

This case was tried not only on the theories specifically delineated in plaintiffs' complaint, negligence and breach of warranty, but also on the additional theory of strict liability in tort. As the law of strict products liability has developed a defective product may consist of: (1) a mistake in manufacturing (i. e., a "flaw", see Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622), (2) an improper design (a "design defect", see Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 384-387, 384 N.Y.S.2d 115, 348 N.E.2d 571; Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769, supra), or (3) an inadequate or absent warning for the use of the product (see Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 405 N.Y.S.2d 448, 376 N.E.2d 920; Wolfgruber v. Upjohn, 72 A.D.2d 59, 423 N.Y.S.2d 95) (Robinson v. Reed-Prentice Div. of Package Machinery Co., 49 N.Y.2d 471, 478-479, 426 N.Y.S.2d 717, 403 N.E.2d 440, supra).

Plaintiffs' major contentions are that a...