Southern Co., Inc. v. Graham
| Decision Date | 24 November 1980 |
| Docket Number | No. 80-237,80-237 |
| Citation | 607 S.W.2d 677,271 Ark. 223 |
| Parties | The SOUTHERN COMPANY, INC., Appellant, v. James GRAHAM and Verdie Mae Graham D/B/A Graham Drive-In, Appellees. |
| Court | Arkansas Supreme Court |
Brown, Compton & Prewett, Ltd. by Eugene D. Bramblett, Camden, for appellant.
Faulkner, Goza & Rollins by V. Benton Rollins, Camden, for appellees.
This is a products liability case. The appellees purchased two gasoline underground storage tanks, gasoline pumps, lines, and other accessory equipment from appellant. These items were installed by the appellant in October of 1975 on appellees' premises, a drive-in business, which included a laundromat, restaurant, motel, and a house trailer. In July, 1976, the appellees and their customers began to notice the odor of gasoline in the water system. Appellees' water supply consisted of a 30' deep well located 40' or 50' from the underground storage tanks. This well supplied water for the trailer, restaurant and motel. Another well, 94' in depth and located uphill approximately 25' from the first well, supplied water to the laundromat. Gradually, the odor became worse and the tap water began to show a substantial amount of gasoline in it. Eventually, appellees had to stop using the water supply and began hauling water in by truck. In June and July, 1977, at appellees' request, appellant tested the equipment for leaks and found none. The contamination continued to worsen. In August, 1977, or a month later, the appellant removed the tanks, lines and other equipment, and again the test revealed no leaks; however, parts of a protective coating on the tanks were corroded by gasoline. The tanks were recoated and reinstalled. Appellant does not question the contamination of the well closest to the pumps. Appellant acknowledges that when making the last test for leaks, it found this well contained 6 and 1/2 of gasoline on the surface of the water. Appellees testified that after the removal and reinstallation of the tanks, lines and other equipment, the contamination began to gradually lessen, and it was almost nonexistent at the time of trial in April, 1979.
Appellant filed this action in chancery court to enforce its lien on the premises because of appellee's refusal to pay appellant $3,719.92 for testing and reinstalling the equipment. The appellees filed a cross-complaint seeking to recover from appellant the damages caused by the gasoline contaminated water. The chancellor found appellant was liable, under Ark.Stat.Ann. § 85-2-318.2 (Supp.1979), and allowed a setoff against appellant's claim. Appellant asserts that the trial court erred in finding for the appellees on strict liability since the appellees failed to establish by a preponderance of the evidence that the product was supplied to them in a defective condition and the defective condition was the proximate cause of the harm to the property. Appellant argues there was no evidence that the tanks, lines and pumps were supplied in a defective condition; rather, the evidence as to the tests shows they were not defective. Therefore, it was speculation to say these products caused the damage when other causes were possible and not ruled out.
We have adopted the doctrine of strict liability in torts in products liability cases. Section 85-2-318.2, supra, provides:
A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;
(b) the product was supplied by him in a defective condition which rendered it unreasonably dangerous; and
(c) the defective condition was a proximate cause of the harm to person or property.
The doctrine of strict liability does not change the burden of proof as to the existence of a flaw or defect in a product. However, it does away with the necessity of proving negligence in order to recover for injuries resulting from a defective product. Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W.2d 898 (1975); and Cockman v. Welder's Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979). Prosser, The Fall of the Citadel, 32 ATL L.J., p. 21 (1968), has discussed the elements of proof:
Strict liability eliminates both privity and negligence; but it still does not prove the plaintiff's case. He still has the burden of establishing that the particular defendant has sold a product which he should not have sold, and that it has caused his injury. This means that he must prove, first of all, not only that he has been injured, but that he has been injured by the product. The mere possibility that this may have occurred is not enough, and there must be evidence from which the jury may reasonably conclude that it is more probable than not .... The plaintiff must prove also that he was injured because the product was defective, or otherwise unsafe for his use ....
Further in Prosser Torts, § 102, p. 672 (4th Ed. 1971), it is stated that such proof may be by circumstantial evidence;
The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of...
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Mays v. Ciba-Geigy Corp., CIBA-GEIGY
...asserted by the plaintiff. Simply put, may a manufacturing defect be proved by circumstantial evidence? In Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980), plaintiff brought an action to recover on a lien on a gas storage tank it had sold to defendant. Defendant cross-c......
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Berkeley Pump Co. v. Reed-Joseph Land Co., REED-JOSEPH
...was not raised in Blagg and accordingly was not decided. Nor was it raised in another recent decision, Southern Company v. Graham, 271 Ark. 223, 607 S.W.2d 677 (1980). Thus, we have not yet considered to what extent a product in a defective condition must be "unreasonably dangerous" so as t......
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Hill v. Searle Laboratories, B-C-86-119.
...Co., 656 F.2d 295 (8th Cir.1981); Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); Southern Co. v. Graham, 271 Ark. 223, 607 S.W.2d 677 (1980); General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 3 Some of the cases cited are: Lindsay v. Ortho Pharmaceu......
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McCoy v. Whirlpool Corp., CIV.A. 02-2064KHV.
...not find it more likely than not that the fact is true. Mays, 233 Kan. at 50, 661 P.2d at 358 (quoting Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677, 679 (1980)) (further quotations and citations Whirlpool argues that even if Martin's testimony was admissible under Daubert, ......