Stoffel v. Thermogas Co.

• Decision Date: 11 December 1997
• Docket Number: No. Civ. 95-1021 MJM.,Civ. 95-1021 MJM.
• Citation: 998 F.Supp. 1021
• Parties: Paul STOFFEL, Plaintiff, v. THERMOGAS COMPANY and/or Thermogas Company of Dubuque n/k/a Mapco Petroleum, Inc., and/or Mapco Gas Products, Inc., Mid-America Pipeline Company, a Mapco Company and/or Mapco, Inc., and/or Mapco Gas Products, Inc. and/or Mapco, Inc., and U.S. Water-Heater Co. and/or Bradford-White Corp., Defendants.
• Court: U.S. District Court — Northern District of Iowa

998 F.Supp. 1021

Paul STOFFEL, Plaintiff, v. THERMOGAS COMPANY and/or Thermogas Company of Dubuque n/k/a Mapco Petroleum, Inc., and/or Mapco Gas Products, Inc., Mid-America Pipeline Company, a Mapco Company and/or Mapco, Inc., and/or Mapco Gas Products, Inc. and/or Mapco, Inc., and U.S. Water-Heater Co. and/or Bradford-White Corp., Defendants.

No. Civ. 95-1021 MJM.

United States District Court, N.D. Iowa, Eastern Division-Dubuque.

December 11, 1997.

COPYRIGHT MATERIAL OMITTED

Donald G. Beattie, Edward W. Skinner, Skinner Beattie Wilson, Altoona, IA, for Plaintiff, Paul Stoffel.

Lew Eells, Eells & Sovern Law Offices, Cedar Rapids, IA, Leonard J. Johnson, Morrison & Hecker, LLP, Kansas City, MO, for Defendants, Thermogas Company, Mapco Petroleum, MAPCO, Inc., Mapco Gas Products, Inc. and Mid-America Pipeline Co.

Dale Peddicord, Joseph M. Barron, Peddicord Wharton Thune Spencer, Des Moines, IA, for Defendants, U.S. Waterheater Co. and Bradford-White Corp.

Memorandum Opinion and Order on Mid-America Pipeline Company's Motion for Summary Judgment

MELLOY, Chief Judge.

I. Introduction

Paul Stoffel's basement exploded in flames as he was trying to start his waterheater, leaving him disabled and disfigured. Stoffel filed this suit under the diversity jurisdiction against a variety of defendants, all of whom Stoffel claims were associated in some way with the waterheater or with the propane gas from which it drew its heat. Stoffel alleges that the various defendants were negligent in failing to warn him of the dangers of odorized ethyl propane and in failing to advise him of the need to install a gas detector in his basement. Stoffel also alleges that the defendants breached an express or implied warranty that the propane gas was safe to use and that he had been properly warned of propane's dangers. Lastly, Stoffel alleges that the defendants are liable to him under a theory of strict liability.

All of the defendants have filed motions for summary judgment, which will be considered individually.

II. Facts

Propane in its natural state is colorless, odorless, and highly inflammable. It is not undetectable to human senses in its natural state, since, as a simple asphyxiant, it will make a person dizzy after a while. But becoming dizzy is neither a quick nor pleasant way of finding out that propane is present. A spark or match can ignite the propane before a person becomes dizzy.

Because of these safety concerns, propane is hardly ever sold to consumers in its natural state. See 49 C.F.R. § 173.315(b)(1). Instead, propane is mixed with a chemical malodorant, usually ethyl mercaptan, that gives propane a distinctive smell and warns of its presence. (As one exhibit puts it, "Propane has a bad smell for a good reason.") People come to recognize the distinctive odor of odorized propane and avoid doing anything to ignite it.

The use of odor to warn of the presence of propane has flaws, however. Not everyone can smell odorized propane; other smells may crowd out the odor of odorized propane; too much ethyl mercaptan can essentially paralyze the sense of smell; and the odor of the propane may fade before the propane itself dissipates. If any of those things happen, a person who relies on his sense of smell to warn him of propane will believe, wrongly, that no propane is present. Thus misled, he could easily strike a match, igniting the propane and putting himself at physical hazard.

Which is exactly what Paul Stoffel claims happened in this case. Stoffel's roommate, Mitch Patzner, had obtained a 100-gallon tank of propane from his employer, Tschiggfrie Excavating; whether Patzner stole the tank from Tschiggfrie, or took it with Tshiggfrie's permission, is a matter of dispute between the parties. Stolen or not, the tank found its way into Stoffel's basement, where Stoffel decided to hook it up to his water heater. After hooking the tank to the heater, Stoffel found that the heater's pilot light would not come on. Suspecting that air in the line from the tank was to blame, Stoffel unscrewed the line's drip cap and let air (or what he thought was air) flow out of the line for 10 or so seconds before screwing the drip cap back on.

Although Stoffel had not smelled propane when he was purging the line, he assumed some propane had escaped, so he took the precaution of heading upstairs for an hour. (All the defendants argue that Stoffel did smell propane, but all Stoffel has said is that the cap he removed smelled of propane.) After the hour passed, Stoffel went down into the basement. Stoffel sniffed the air for propane, even going so far as to get on his hands and knees to sniff around the tank and the water heater.

Smelling nothing, Stoffel struck a match. The resulting explosion hurled him across the room, leaving him injured and burned and dazed, but not unconscious.

The propane that exploded in Stoffel's basement arrived there in the following manner: Mid-America Pipeline Co. transported the propane in bulk through its pipeline to its facility, where it loaded that propane, still in bulk, into one of MAPCO Petroleum Inc.'s trucks. Mid-America odorized the propane while it was in the MAPCO truck and before the truck left the facility. MAPCO then transported the propane to Thermogas, who filled a 100-gallon tank with it. That tank was then sold to Tschiggfrie, removed by Patzner, and carried down into Stoffel's basement, where it held the propane until Stoffel removed the drip line cap.

Stoffel sued everyone preceding Tschiggfrie in the distribution chain—which is to say, Stoffel sued the pipeline company, the truck shipper, and the retailer. Stoffel also sued Bradford-White Company and U.S. Water-heater Company, who made the water heater to which he had connected the propane tank. (Stoffel also sued MAPCO, Inc., the parent company of Mid-America Pipeline, MAPCO Petroleum, and Thermogas, but this Court dismissed the parent company for lack of personal jurisdiction.) Stoffel argues that someone in this distribution chain, or the maker of the water heater, should have warned him of the failings of odor as a propane warning device. Stoffel also argues that, given those failings, someone should have advised him to buy a gas detector or should have included a gas detector on the tank or water heater. Finally, Stoffel argues that the defendants are strictly liable to him for placing a defective product unreasonably dangerous into the stream of commerce, and alleges a breach of both express and implied warranties.

In its analysis of the various motions for summary judgment, this Court will consider the liability of each defendant in the same order as the propane moved among them, beginning with Mid-America Pipeline Company.

III. Discussion

1. Failure to Warn

Stoffel alleges that Mid-America was negligent in failing to warn him of the shortcomings of odor as a propane safety measure a claim that under Iowa law is analyzed through the prism of § 388 of the Restatement (Second) of Torts. Mid-America responds that, as the bulk supplier of gas, it lacked any practicable means of directly warning Stoffel of those shortcomings. After all, Mid-America could not affix a sticker to the propane gas itself, and, since Mid-America did not place any propane into containers that were destined for ultimate users, it had nothing to which it could affix warnings that would reach Stoffel. Cf. O'Neal v. Celanese Corp., 10 F.3d 249, 254 (4th Cir.1993) (noting that product "[does] not lend itself to the typical warning label."); Seibel v. Symons Corp., 221 N.W.2d 50, 57 (N.D.1974) (noting that "red paint, decals, and the like" could have been affixed to product); Note, Failures to Warn and the Sophisticated User Defense, 74 Va.L.Rev. 579, 585 n. 29 (1988) ("[S]ome products are manufactured and delivered in a form that makes the placement of a warning on them very difficult."). Since Mid-America itself had no way of warning Stoffel, the most it could do, Mid-America argues, was try to make sure the next person down the distribution chain was properly warned of the dangers of propane and would pass along those warnings, either to the ultimate user or to the next person in the distribution chain. See Failures to Warn, 74 Va. L.Rev. at 580 ("Products liability law can encourage warning of end users [] by relying on the chain[] [of distribution] and requiring each purchaser to warn the next in line[.]"). Mid-America claims it did this; MAPCO Petroleum, the next person in the chain, acknowledged that it knew the dangers of propane and would pass its knowledge along. Mid-America argues that these precautions satisfied a reasonable standard of care, and thus preclude tort liability.¹

As a legal matter, Mid-America's argument that it can act reasonably to warn the ultimate user by warning an intermediary is well-taken. As the Fourth Circuit Court of Appeals has explained,

There is a duty to warn of defects or propensities that make a product hazardous, and that duty does extend ordinarily to those who may reasonably be expected to use or come into harmful contact with the product. It is not a duty, we think from which the supplier can be entirely absolved. The question, rather, is what conduct will suffice to discharge that duty? ... Where it is impracticable for the supplier to give adequate warnings directly to all who may use or come into contact with the product, some substitute for such direct warnings is required.... As comment n to Restatement § 388 makes clear, the focus remains on the conduct of the supplier, but that conduct is judged in light of the circumstances. Among those circumstances are the feasibility of giving direct warnings to all who are entitled to them and, where that is not feasible, whether the supplier acted in a manner reasonably calculated to assure either that the necessary information would be passed on to the ultimate handlers of the product or that their safety would otherwise be attended to. In such a...