Parsons v. Honeywell, Inc.

• Decision Date: 29 March 1991
• Docket Number: Nos. 1151,1197 and 1187,s. 1151
• Citation: 929 F.2d 901
• Parties: 32 Fed. R. Evid. Serv. 866, Prod.Liab.Rep.(CCH)P 12,792 Frank PARSONS, Plaintiff-Appellant, v. HONEYWELL, INCORPORATED; Northern Propane Gas Company, Defendants-Appellees, HONEYWELL, INCORPORATED, Third Party Plaintiff-Appellant, v. John T. ROWE, Sr. and Rosemary Rowe, Third Party Defendants-Appellees, NORTHERN PROPANE GAS COMPANY, Third Party Plaintiff-Appellant, v. John T. ROWE, Sr.; Rosemary Rowe; Mileage Master Center of Rochester, Inc.; Shayoung Contracting, Corp.; and Richard Thomas Connolly, Third Party Defendants-Appellees. Dockets 90-7785, 90-7943 and 90-7945.
• Court: U.S. Court of Appeals — Second Circuit

Page 901

929 F.2d 901

32 Fed. R. Evid. Serv. 866, Prod.Liab.Rep.(CCH)P 12,792

Frank PARSONS, Plaintiff-Appellant, v. HONEYWELL, INCORPORATED; Northern Propane Gas Company, Defendants-Appellees, HONEYWELL, INCORPORATED, Third Party Plaintiff-Appellant, v. John T. ROWE, Sr. and Rosemary Rowe, Third Party Defendants-Appellees, NORTHERN PROPANE GAS COMPANY, Third Party Plaintiff-Appellant, v. John T. ROWE, Sr.; Rosemary Rowe; Mileage Master Center of

Rochester, Inc.; Shayoung Contracting, Corp.;

and Richard Thomas Connolly, Third Party

Defendants-Appellees.

Nos. 1151, 1197 and 1187.

Dockets 90-7785, 90-7943 and 90-7945.

United States Court of Appeals Second Circuit.

Argued March 13, 1991.

Decided March 29, 1991.

Frederick C. Riester (Kirk M. Lewis, and DeGraff, Foy, Conway, Holt-Harris & Mealey, Albany, N.Y., on the brief), for plaintiff-appellant.

George W. Flynn, Minneapolis, Minn. (John C. Herbert, Richard E. Alexander, and Harter, Secrest & Emery, Rochester, N.Y., and Cosgrave, Flynn, Gaskins & Haskill, Minneapolis, Minn., on the brief), for defendant-appellee/third party plaintiff-appellant Honeywell, Inc.

John J. Considine, Jr. (Sutton, DeLeeuw, Clark & Darcy, Pittsford, N.Y., on the brief), for defendant-appellee/third party plaintiff-appellant Northern Propane Gas Co.

Cheryl A. Heller (Audrey P. Peartree, and Culley, Marks, Tanenbaum, Reifsteck, Potter & Capell, Rochester, N.Y., on the brief), for third party defendant-appellee Mileage Master Center of Rochester, Inc.

Walter R. Pacer, Jr. (Law Office of Joseph A. Ables, Jr., Buffalo, N.Y., on the brief), for third party defendants-appellees Shayoung Contracting Corp. and Richard T. Connolly.

Lynn A. Forth (Thomas M. VanStrydonck, and Gough, Skipworth, Summers, Eves & Trevett, Rochester, N.Y., on the brief), for third party defendants-appellees John T. Rowe, Sr. and Rosemary Rowe.

Before TIMBERS, NEWMAN and WALKER, Circuit Judges.

TIMBERS, Circuit Judge:

This is an appeal from an order and judgment entered July 20, 1990 and from an order entered September 14, 1990, in the Western District of New York, David G. Larimer, District Judge, granting all appellees' motions for summary judgment pursuant to Fed.R.Civ.P. 56 and thereafter denying appellant Frank Parsons' motion for reconsideration pursuant to Rule 59(e).

Parsons commenced this personal injury action on May 9, 1984, to recover damages for injuries sustained in a propane gas explosion. Appellees Honeywell, Incorporated (Honeywell) and Northern Propane Gas Company (Northern) filed third party complaints against the remaining third party appellees. On July 20, 1990, the district court granted all appellees' motions for summary judgment and dismissed the complaint and cross-complaints.

On appeal, Parsons contends that the district court improperly held that his conduct, as a matter of law, was a superseding cause of his injuries; that he presented a prima facie case against the primary defendants, appellees Honeywell and Northern; and that the district court improperly indicated that a hearsay statement contained in a police report would be admissible at trial. Third party plaintiffs-appellants (Honeywell and Northern) contend that issues of fact precluded the entry of summary judgment in favor of third party defendants-appellees.

For the reasons set forth below, we reverse and remand as to the main appeal (involving appellees Honeywell and Northern) and affirm in part and reverse and remand in part with respect to the appeals involving the third party appellees.

I.

We shall set forth only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

Many of the background facts are undisputed, as reflected in the district court opinion. In 1979, John and Rosemary Rowe, third party appellees (the Rowes), bought a used water heater of undetermined make for installation in the basement of a house they owned in Chili, New York. The Rowes' water heater burned liquid propane (LP) gas from an attached cylinder to heat water contained in the tank. As is commonly the case, the gas, which was stored in the cylinder under great pressure, passed out of the tank through a regulator that reduced the pressure to approximately four-tenths of a pound per square inch (.4 psi). The gas then passed into the heating unit where a pilot light was supposed to keep the heating unit in a constant state of ignition. If the pilot light went out, a power disc on the heating unit--manufactured by Honeywell--was supposed to slip into place to prevent gas leaks.

In September 1982, Parsons rented the Rowes' house and engaged the services of a local gas company to hook up two LP gas cylinders. The company removed the cylinders, however, when a dispute arose about the payment of a $47 fee. Parsons then decided to take matters into his own hands.

Parsons borrowed a 100-pound Pyrofax LP gas cylinder from his employer, third party appellee Shayoung Contracting Corp. (Shayoung), of which Parsons' brother-in-law, third party appellee Richard T. Connolly (Connolly), was vice-president. Parsons also obtained a gas regulator, a commercial model designed to deliver gas up to 35 psi. He detached this equipment from an industrial "salamander" stove (portable heater) for installation in his basement. He apparently asked permission to borrow the cylinder but not the regulator; he told no one at work what he planned to do with the equipment. Furthermore, he apparently ignored Rosemary Rowe's admonition that he not "monkey" with the gas system.

Parsons claims that he took the Pyrofax cylinder to third party appellee Mileage Master Center of Rochester, Inc. (Mileage Master) to be filled. Mileage Master obtains its gas from Northern, its local distributor. LP gas is odorless.

Once Parsons had assembled the materials, he attempted to hook up the commercial regulator and newly filled cylinder to his home water heater. He testified at his deposition that he had a difficult time making all the connections fit and that he dismantled and then reassembled parts of the regulator during the hook up procedure. He heard a faint hissing noise upon letting gas flow into the system, which he concluded was "gas seeping out of the system." He identified one source of the leak as the control valve, but ultimately concluded that he had overpressurized the system during the hook up. After a few adjustments, he was able to stop the hissing. Honeywell's expert was of the opinion--and Parsons produced no evidence to the contrary--that Parsons' overpressurization of the system knocked the Honeywell power disc in the heater out of place, rendering it inoperable and creating substantial risk of a gas leak.

For several weeks the system worked without mishap. On Saturday, May 14, 1983, however, a loss of hot water sent Parsons down to the basement. He testified at his deposition that he did not smell gas either when he was upstairs or as he descended to the basement. Having concluded that the pilot light had gone out, he held up his cigarette lighter and flicked it on. He testified that he could not recall whether he smelled gas at that point. An explosion ensued, blowing out windows knocking down part of the front wall, and shifting the foundation of the house. Ultimately, the house was declared unsafe and was demolished.

According to a police report compiled by Deputy Sheriff Joseph Bender shortly after arriving at the accident scene, eyewitness Jeff Brongo said that he was next door to the house when he heard the blast and saw the roof shake. Brongo ran next door where he encountered the badly burned Parsons stumbling out of the house. According to the report, Brongo heard Parsons say, "smelled gas--shouldn't have lit it up--help me--I tried lighting the water heater." Later, however, Brongo told an insurance investigator that he did not recall Parsons making that statement. Parsons also does not recall making the statement.

Parsons sought to hold Honeywell, Northern, and Mileage Master liable for the accident. After substantial discovery was completed, Mileage Master was dismissed from the main action because of lack of diversity. Parsons' action proceeded against Honeywell and Northern. He claimed that the power disc manufactured by Honeywell contained a design defect and that Northern failed to warn its customers of the dangers of LP gas and that it failed to properly odorize the gas. Parsons theorizes that there may have been a deficit or absence of the odorant--ethyl mercaptan--that should have been added to the gas that he obtained from Mileage Master. The residual gas used at the Rowe house was never inspected and is now unavailable.

Third party complaints were filed by Honeywell against the Rowes and by Northern against the Rowes, Mileage Master, Shayoung, and Connolly.

The district court held that Parsons' conduct--"attempting to light an altered, jury-rigged and leaky LP gas system while aware of the potential consequences"--was the superseding cause of his injuries. It found that he was "aware of the obvious dangers posed by modifying the system and attempting to light the pilot in the presence of gas." The court further held that third party appellees could not be held liable as a matter of law. Finally, it held that Brongo's statement in the police report that Parsons said he smelled gas would be admissible at trial. The court granted all appellees' motions for summary judgment, and dismissed the complaint and cross-complaints. This appeal followed.

II.

As a threshold matter, we address the basis of our jurisdiction and set forth the relevant standard of review.

We hold that we have jurisdiction over the instant appeal in that the orders and judgment appealed from are final within the meaning of 28 U.S.C. Sec. 1291 (1988).

Since the appeal involves summary judgments, we review the claims of genuine issues of material fact de novo, drawing all inferences in appellants' favor. Gibson v....