McKee Elec. Co., Inc. v. Carson Oil Co.

Citation70 Or.App. 1,688 P.2d 1360
PartiesMcKEE ELECTRIC COMPANY, INC., West American Insurance Company, a corporation, John A. McKee and Elenore B. McKee, Respondents, v. CARSON OIL COMPANY, a corporation, Appellant. A8108-04708; CA A29903.
Decision Date04 December 1984
CourtCourt of Appeals of Oregon

Timothy N. Brittle, Portland, argued the cause for appellant. With him on brief was Acker, Underwood & Smith, Portland.

Richard L. Grant, Portland, argued the cause for respondents. With him on brief were James K. Buell, and Buell, Black & DuPuy, Portland.


JOSEPH, Chief Judge.

Plaintiff 1 brought this action for damages, alleging that, while in the course of delivering gasoline to an underground storage tank at plaintiff's place of business, defendant's employee negligently overfilled the tank, causing gasoline to flow under the delivery truck. The truck somehow ignited the gasoline vapor, and the resulting explosion and fire completely consumed the truck and most of plaintiff's adjacent building. At the close of plaintiff's case, and again when all the evidence was in, defendant moved for a directed verdict on the ground that plaintiff had failed to prove negligence. Defendant also moved to have each specific allegation of negligence stricken for the same reason. Four specific allegations were finally submitted to the jury, which found defendant 80 percent at fault. Defendant's first five assignments of error concern the denial of the motions.

Our review of the errors claimed requires us to examine the facts in the light most favorable to plaintiff to determine whether there is sufficient evidence from which the jury could find that defendant was more probably than not negligent and that its negligence was a substantial factor contributing to the explosion and fire. James v. Carnation Co., 278 Or. 65, 67, 562 P.2d 1192 (1977). Although a trial court is required to take from the jury allegations of negligence unsupported by the evidence, see, e.g., Martin Engineering Co., Inc. v. Opton, 277 Or. 291, 295-96, 560 P.2d 617 (1977), a directed verdict should be entered only in "exceptional circumstances," when the only reasonable inference from the evidence is that the defendant was not negligent or that the defendant's negligence was not a substantial factor in causing the injury. James v. Carnation Co., supra, 278 Or. at 69, 562 P.2d 1192.

The evidence showed that the defendant parked the truck with its front end about two feet away from the rear wall of the building. On one side, the fill pipe to the underground tank was three or four feet away; at about the same distance, on the other side, was a vent pipe. Defendant began to fill the tank by pumping gasoline from the truck at the rate of about 140 gallons per minute. The driver stood about 20 feet away from the pump controls in order to observe the vent pipe which, on at least one other occasion, had discharged gasoline on the ground during the filling operation. After 1050 gallons had been pumped, the driver had to change to another tank on the truck. After changing to that tank, he resumed his position about 20 feet away from the controls.

When about 300 more gallons had been pumped, things started to go wrong. The engine on the truck began to race "very loud and fast." The engine speed governed the rate at which the gasoline was pumped and, as a result of the speedup, the truck began pumping about 300 gallons per minute. The engine began to race, because it was taking in gasoline vapors through the air intake. The source of those vapors is not certain, but there is evidence from which the jury could conclude that gasoline flowed from the vent pipe and spread beneath the truck.

As the driver ran to turn off the pump, he saw gasoline spewing from the fill pipe. Ten to 15 seconds elapsed before the vapors ignited. He managed to shut off the pump, but defendant's expert testified that, in his opinion, a "sizable spill" had already occurred.

The truck was the source of the spark that ignited the gasoline vapors. There was evidence that the truck could have been parked elsewhere during the fill operation, that the driver had parked the truck elsewhere during previous deliveries and that, had he done so on this particular day, the accident "very likely" would not have happened. He parked where he did so that he could pump the tanks on the truck dry rather than retaining 40 to 50 gallons. There was also evidence that he did not know how much gasoline the tank would hold and that automatic shutoff devices are not available for the size of hose on the truck.

That is ample evidence from which a jury could conclude that defendant's driver negligently overfilled the tank and in doing so spilled gasoline around the delivery truck, which was parked too close to the fill pipe. The jury could also conclude that defendant's driver was negligent in standing 20 feet away from the pump controls, thereby rendering himself unable to prevent or minimize the amount of gasoline spillage.

Defendant insists that negligence in this case can only be shown by expert testimony. Plaintiff did not produce an expert to testify that defendant was negligent. Expert testimony is an indispensable part of a prima facie negligence case only if the average juror could not be expected to understand the issues involved. Hall v. State, 290 Or. 19, 27, 619 P.2d 256 (1980); Lynd v. Rockwell Manufacturing, 276 Or. 341, 349, 554 P.2d 1000 (1976). The rule applies whether or not the plaintiff is able to produce evidence of a breach of duty or relies on res ipsa loquitur. See, e.g., Mayor v. Dowsett, 240 Or. 196, 214-18, 400 P.2d 234 (1965). 2 The average juror does not need an expert to explain that it is more likely than not negligence to overfill an underground tank and cause gasoline to spill on the surface. A juror can understand, without expert testimony, that a reasonably prudent person would not park a delivery truck with the engine running where it is reasonably foreseeable that gasoline vapors will be present and that the truck would be affected by, or ignite, those vapors. Defendant's first five assignments of error fail.

Defendant next contends that a res ipsa loquitur instruction should not have been given and that the instruction given was erroneous in any event. Res ipsa loquitur applies when there is evidence from which the jury could reasonably find that it is more probable than not that an accident would not normally have occurred in the absence of negligence and that the negligence was probably that of defendant. See Watzig v. Tobin, 292 Or. 645, 650-51, 642 P.2d 651 (1982). Neither contributory negligence, Cramer v. Mengerhausen, 275 Or. 223, 228, 550 P.2d 740 (1976); Powell v. Moore, 228 Or. 255, 268, 364 P.2d 1094 (1961), nor lack of exclusive control over the instrumentality leading to the accident precludes application of the doctrine. Pattle v. Wildish Construction Co., 270 Or. 792, 797, 529 P.2d 924 (1974).

Defendant argues that plaintiff failed to produce any evidence that this fire was the type of accident that does not ordinarily occur in the absence of negligence, because no expert so testified. We do not agree that statements by an expert to the effect that accidents such as this ordinarily do not occur without negligence is essential to plaintiff's case. We think that common sense and ordinary experience can fairly lead to the conclusion that an accident of this kind occurs because someone was negligent. On the evidence here, moreover, the jury could find that the negligence involved was defendant's. See St. Paul Fire & Mar. Ins. v. Watkins, 261 Or. 473, 477, 495 P.2d 265 (1972). We conclude that this is not the type of case where expert testimony is necessary to help a juror understand the issues. Compare Watzig v. Tobin, supra, 292 Or. at 652, 642 P.2d 651; Mayor v. Dowsett, supra, 240 Or. at 217-18, 400 P.2d 234; and Kaufman v. Fisher, 230 Or. 626, 636-41, 371 P.2d 948 (1962), with Brannon v. Wood, 251 Or. 349, 359-61, 444 P.2d 558 (1968).

Defendant claims that the res ipsa instruction given was erroneous, because it was not clearly limited to the specific allegations of negligence pled, as it must be when a general allegation of negligence is not pled. Brannon v. Wood, supra, 251 Or. at 356-57, 444 P.2d 558. The instruction is set forth in the margin; 3 it refers to "negligence on the part of defendant as alleged in plaintiff's complaint." When taken in context with other instructions given, instructions making it clear that the only allegations of negligence before the jury were the specific acts alleged in the pleadings, the res ipsa instruction would not have given the jury an erroneous impression of the law that affected the outcome of the case. See Waterway Terminals Company v. P.S. Lord Mechanical Contractors, 256 Or. 361, 370, 474 P.2d 309 (1970). Accordingly, we conclude that the instruction does not warrant a reversal.

Defendant contends that the trial court erred in striking the allegation in its answer and counterclaim that plaintiff was negligent in ordering a quantity of fuel that its tank would not hold. Uncontradicted testimony showed that plaintiff simply requested defendant to fill the tank and that neither plaintiff nor defendant knew how much fuel it would take to do so. There is no evidence that plaintiff ordered any particular quantity of fuel, and it was not error to strike the allegation.

Defendant assigns error to the trial court's submission to the jury of plaintiff's claim for consequential damages. That claim (in paragraph X of the complaint) was for "loss of time of supervisory and regular employees utilized in the necessary cleanup, obtaining temporary office quarters, retaining security guards, locating and obtaining replacement tools, equipment, fixtures and miscellaneous." 4 Defendant argues that "loss of time"...

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