McKee Elec. Co., Inc. v. Carson Oil Co., A8108-04708
| Decision Date | 29 July 1986 |
| Docket Number | No. A8108-04708,A8108-04708 |
| Parties | McKEE ELECTRIC COMPANY, INC., West American Insurance Company, a corporation, John A. McKee and Elenore B. McKee, Respondents on Review, v. CARSON OIL COMPANY, a corporation, Petitioner on Review. ; CA A29903; SC S31235. |
| Court | Oregon Supreme Court |
Timothy N. Brittle, Portland, argued the cause for petitioner on review. With him on the briefs was Acker, Underwood & Smith.
Richard L. Grant, Portland, argued the cause for respondents on review. With him on the briefs were James K. Buell and Buell, Black & Dupuy.
The issue is whether on the pleading and evidence the plaintiff 1 was entitled to an instruction on res ipsa loquitur. We hold that the plaintiff was entitled to the instruction.
This is an action to recover damages for physical harm to property and consequential damages incurred in repairing the property. The plaintiff contends that negligence of the defendant caused a fire that resulted in physical harm to the plaintiff's property. The defendant denied that it was negligent or that it caused the fire. The defendant counterclaimed for damages, contending that the plaintiff's negligence caused the fire and the resulting physical harm to the defendant's property.
The jury decided that the plaintiff was 20% at fault and defendant was 80% at fault; consequently, the plaintiff had judgment on its claim. The defendant's assignments of error on appeal went only to the verdict for the plaintiff. On appeal the defendant contended that it was entitled to favorable rulings on its motion for directed verdict against the plaintiff's claims, its motions to withdraw the plaintiff's specifications of negligence and its motion against the plaintiff's claim for consequential damages. Defendant also claimed error because the trial court instructed on the doctrine of res ipsa loquitur, contending not that it was improper to instruct at all on the doctrine but only that it was improper on the pleading and evidence in this case.
The Court of Appeals held that there was no error with respect to the trial court's denial of the motion for directed verdict, its rulings on withdrawal of the specifications of negligence and its instructions on res ipsa loquitur. McKee Electric Co. v. Carson Oil Co., 70 Or.App. 1, 688 P.2d 1360 (1984). The Court of Appeals remanded for a new trial on the issue of consequential damages.
The defendant petitioned for review, contending only that the Court of Appeals erred in concluding that "expert testimony was not necessary to enable plaintiff to establish negligence" and in concluding that "the issue of res ipsa loquitur was properly submitted to the jury." We allowed that petition for review.
Defendant's petition for review was timely filed. The plaintiff did not timely file a petition for review but filed a response. ORAP 10.05(5) allows a response to be filed within 21 days after the petition for review has been filed. The plaintiff filed its response almost seven weeks after the petition for review had been filed, although within 21 days after this court had allowed the defendant's petition for review. In its response, without any indication whatsoever on the cover, the plaintiff included a petition for review of the Court of Appeals' decision on consequential damages. This was untimely as a petition for review; it was untimely as a response. We never allowed it as a petition for review. In our supplemental questions to the parties after allowance of the defendant's petition for review, we did not address the plaintiff's contentions raised in the petition for review buried in its response.
Under ORAP 10.05(5) the winning party's brief in the Court of Appeals is considered as a response to the losing party's petition for review if no response is filed in this court. The defendant's petition for review is completely silent on the issue of the plaintiff's claim for consequential damages; therefore, we do not consider the plaintiff's brief in the Court of Appeals to be a response to any issues other than those raised in the defendant's petition for review.
In these circumstances, despite ORAP 10.15(2), we choose not to consider the plaintiff's contentions of error with respect to the issue of consequential damages. 2 We express no opinion on the validity of those contentions.
The plaintiff then pled that the cause of the damage was the negligence of the defendant in certain particulars and described the damage in detail. Of the particular charges of negligence, the following four were eventually submitted to the jury:
There was evidence from which the jury could have found the following.
On the east side of the plaintiff's building was a paved area. Extending from the south wall of the building in an easterly direction was a concrete ledge about two feet high separating the paved area east of the building from another parking area south and southeast of the building. The paved area north of the ledge sloped away from the building to the east. Underneath the paved area was the tank.
The fill pipe for the tank was located about six feet from the east wall of the building and about eight to ten inches north of the ledge. About 24 to 28 feet north of the ledge and two or three feet east of the building was the vent pipe, which was about 11 feet high and had a "cap," which would cause escaping vapor to deflect downward. Immediately east of the vent pipe was a gasoline pump used to dispense gasoline from the tank. The underground tank had a capacity of 2,000 gallons. The tank had an offset fill pipe, and there was no way to measure how much gasoline was in the tank. The defendant had filled the tank on many prior occasions. Sometimes the plaintiff had allowed the tank to run dry before ordering a fill. On other occasions the plaintiff had ordered a specified amount of gasoline to be delivered. On this occasion the plaintiff had simply ordered the tank to be filled, not indicating whether or not it was empty.
On prior occasions the defendant's drivers had sometimes positioned the delivery truck north of the ledge and sometimes south of the ledge. On this occasion the driver positioned his vehicle parallel to and north of the ledge with the front of the truck facing west and about two feet from the east wall of the building. He so positioned the truck because if he had parked it either south of the ledge or farther east he could not completely drain his truck's tanks.
The driver hooked up his delivery hose, inserted the hose's metal nozzle into a rubber cone and pushed the rubber cone into the fill pipe, thus making an airtight seal. This positioning of the truck meant that the fill pipe was between the driver's side of the truck and the ledge.
In order to discharge gasoline from the truck's tanks into the fill pipe, it was necessary to keep the truck engine running. The power takeoff unit was located at the driver's side of the truck. The driver engaged the unit and emptied one of his truck tanks, putting about 1,050 gallons of gasoline in the plaintiff's tank. While doing so, the driver moved to a place near the ledge to see the vent pipe, which he could not see from the driver's side of the truck where his controls were located.
After emptying his first tank, the driver disengaged the unit and made ready to draw from another of his tanks. He engaged the unit and moved back onto the ledge about 20 feet from his controls. At that time he was pumping about 140 gallons per minute, thus not using the full capacity of the system, which could pump about 2,300 gallons per minute.
After about 300 gallons had been pumped, the diesel engine of the truck began to race. This would have the effect of pumping more gasoline per minute. As he started down from the ledge to go to his controls, the driver saw gasoline coming from the fill pipe area. He shut off the pumping. There was then an explosion, and a fire began. About 10 to 15 seconds elapsed from the time the engine began to race to the time of the explosion.
The purpose of the vent pipe is to vent gasoline vapor and air from the tank while it is being filled. Gasoline vapor is heavier than air; therefore, the cap on the vent, the slope of the area and a strong east wind if blowing at the time could cause any vapor from the vent pipe to move toward the truck engine and produce the racing. On the other hand, if gasoline were coming from the fill pipe, vapor from that gasoline could reach the engine and cause the racing.
After the fire, there was gasoline in the fill pipe about eight inches from the top.
At no time during the delivery and the start of the fire was any employee of the plaintiff present. The only eyewitness was the defendant's driver.
The defendant objected to the court instructing the jury concerning the doctrine of res ipsa loquitur:
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