Sungas, Inc. v. Perry
Citation | 450 So.2d 1085 |
Parties | SUNGAS, INC. v. Joseph PERRY and Nancy Perry. 82-808. |
Decision Date | 06 April 1984 |
Court | Supreme Court of Alabama |
J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, for appellant.
Charles E. Floyd and C. Kerry Curtis, Phenix City, for appellees.
This is an appeal from a final judgment in a negligence action, wherein a jury awarded Plaintiffs/Appellees Joseph Perry and his wife Nancy $60,000 and $15,000, respectively, for the alleged negligence of Defendant/Appellant Sungas, Inc., a dealer/supplier of propane gas and tanks.
Plaintiffs alleged that Sungas was negligent in the following particulars:
(a) In filling the Perrys' tank with propane gas while it was painted a reddish brown primer color;
(b) In failing to give them any instructions or warnings about the hazards surrounding, concerning, or involving the use of their propane tank after the Defendant had filled it with propane gas while it was painted a reddish brown primer color (c) In failing to provide them with information concerning or relating to the pressure release valve as to the fact that it might discharge when making a hissing kind of sound, and that it would be dangerous for anyone to be either in the close vicinity of, or immediately above, the release valve under such circumstances;
(d) In failing to provide an adequate safety training program for its employees so that owners of propane tanks serviced by employees of Defendant would be adequately informed of any dangers or improper conditions existing about their tanks; and
(e) In failing to require that its employees have a thorough knowledge of all applicable rules and regulations of the Alabama LP-Gas Board.
Plaintiffs further alleged that, as a proximate consequence of Sungas's actions, Joseph Perry had both temporary and permanent injuries to his eyes; that he incurred hospital and doctors' costs, as well as other related expenses; that he lost time and wages; that his earning capacity was reduced; that he was caused physical pain and mental suffering, and other incidental injuries.
Nancy Perry, in a derivative claim, sought damages for loss of society and companionship of her husband, as well as for "time from work in caring for him."
Sungas answered Plaintiffs' claims as follows:
(a) It admitted that it was engaged in the sale, inspection, and maintenance of propane tanks and the sale and distribution of propane gas. It denied, however, that it sold or delivered the propane tank in question to the Perrys.
(b) It admitted putting gas in the tank and that its employee had special knowledge of safety measures relating to hazards involved in the use of propane tanks.
(c) It denied any negligence or wantonness on its part.
(d) It alleged contributory negligence and assumption of the risk on the part of Joseph Perry.
(e) It averred that it was not the insurer of Joseph Perry's safety and that it was lawfully entitled to rely on the reasonable anticipation that the Perrys would exercise care to prevent injury to themselves.
A jury found in favor of Plaintiffs on their negligence claims and assessed damages. Defendant appeals from the denial of its post-judgment motions for judgment notwithstanding the verdict or for a new trial. We affirm.
As part of its services, Sungas installs and periodically fills and refills propane receptacles. The Perrys purchased a propane tank in 1976, and moved it to their residence. Although not the original retailer, Sungas, at the Perrys' request, installed the tank and connected it to the main line in October 1978. At the time of its purchase and installation, the tank was silver or aluminum in color.
According to the Perrys, at the time of the tank's installation, Sungas failed to provide either of them with any oral or written information concerning the proper use and maintenance of the propane tank. At some point in either 1978 or 1979, Joseph Perry painted the tank with red "rust colored" primer. In March of 1981, while the tank was still painted "red" or "rusty," Harold Anthony, route driver for Sungas, serviced and filled the Perrys' tank.
On June 21, 1981, while in his yard, Joseph Perry detected the smell of gas in the vicinity of his tank. He approached the tank and heard a "hissing" noise. He removed the "bonnet" from the tank in an effort to determine the source of the suspected leak. When he lifted the "bonnet," a gauge underneath it registered between 235 and 250, which he understood to mean "gallons" of propane gas. He also understood that his tank's capacity was 250 "gallons."
Joseph Perry testified as follows:
As a result of the sudden release of pressure from the tank, propane gas and foreign particles were thrown in both of Joseph Perry's eyes. He was hospitalized from June 21, 1981, through June 30, 1981. He was required, because of his injuries, to wear patches over both eyes for approximately a month after the incident. Additionally, subsequent to removal of the patches, he was unable to go out into bright sunlight for some six months because of the corresponding discomfort. According to testimony from his treating physician, Joseph Perry sustained a 16.4% permanent partial loss of vision in his right eye as a result of the accident.
Joe Scoggins, an investigator for the Alabama LP-Gas Board, investigated the accident in which Plaintiff was injured two days after its occurrence. At the time of his arrival, Plaintiffs' propane tank had been painted an aluminum color by Sungas's deliveryman, Harold Anthony. According to Scoggins, Sungas should not have filled the Perrys' tank at a time when it was painted "red" or "rusty" colored. He further stated it to be common knowledge among gas distributors that all tanks should be painted a light reflective color, preferably aluminum, to reflect heat and prevent excessive pressure build-up inside the tanks themselves. Additionally, his testimony was to the effect that the subject tank, which was filled in late winter and was still near 80% full, had the potential in hot weather to heat up and expel fuel through the release valve, creating a hazard of injury to any person in close proximity to the tank when the expanded gas was released.
Both Harold Anthony, Sungas's deliveryman, and his brother, Denman Anthony, service manager for Sungas at the time of the accident, denied having violated any Alabama LP-Gas Board regulations by filling Plaintiffs' tank when it was painted "red" or "rusty" colored as opposed to a heat reflective shade of paint.
TG & Y Stores v. Atchley, 414 So.2d 912 (Ala.1982), states the familiar rule:
Given the injuries to Joseph Perry resulting from the incident in question, we must first look to the existence vel non of a "duty" on the part of Sungas to Plaintiffs in general. In Chilton Butane Gas, Inc. v. Marcus, 289 Ala. 292, 267 So.2d 140 (1972), we find the following:
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