Wilmes v. Consumers Oil Co. of Maryville
| Citation | 473 S.W.3d 705 |
| Decision Date | 10 November 2015 |
| Docket Number | WD 78247 |
| Parties | Thomas Wilmes and Sharon Wilmes, Appellants, v. Consumers Oil Company of Maryville, Respondent. |
| Court | Missouri Court of Appeals |
Richard J. Zalasky and Dale R. Funk, St. Louis, MO, for Appellants.
Laurel E. Stevenson, Springfield, MO and Matthew R. Rosek, Pro Hac Vice, for Respondent.
Before Division Three: Joseph M. Ellis, Presiding Judge, Karen King Mitchell, Judge and Gary D. Witt, Judge.
Appellants Thomas Wilmes ("Thomas")1 and Sharon Wilmes ("Sharon") appeal from summary judgment entered in favor of Respondent Consumers Oil Company of Maryville ("Consumers Oil") on their petition arising from injuries sustained after a propane explosion on the Wilmeses' property. Because we agree with the Wilmeses that Consumers Oil was not entitled to judgment as a matter of law, we reverse.
In August 2009, Thomas installed a propane system to operate a radiant heater that was placed in an outbuilding (or shed) on the Wilmeses' property. The outbuilding was approximately forty feet wide and sixty feet long. The propane system consisted of a used 500–gallon propane tank, half-inch galvanized piping, and a radiant heater that hung beneath a drop ceiling that covered half of the interior of the outbuilding.
Thomas worked as a building and maintenance supervisor in the course of his employment. Prior to installing the heater, Thomas had a serviceman verify that it was in good working order. Thomas borrowed a tank mover from Consumers Oil to move the propane tank and placed it approximately eight feet from an exterior wall of the outbuilding. Galvanized piping ran from the tank into a trench that was dug from the tank to the outbuilding. The piping entered the building and ran vertically against an interior wall passing through the drop ceiling then turned 90 degrees and went across a short distance above the ceiling and then turned 90 degrees and went back below the ceiling to the heater that hung beneath the ceiling. At the time of the installation, Thomas performed a "leak test" on the system, which means he checked for leaks in the joints by soaping the joints of the system and looking for bubbles while the system was charged.3 LF 1027.
Thomas pre-paid for 400 gallons of propane from Consumers Oil for delivery at a later date, because it was summer. Thomas was a new propane customer for Consumers Oil. The used propane tank was empty or very close to empty when Thomas installed the propane system in August. Thomas thought that the tank was running low on propane because it "rolled over in the heater the first time ... and the second time I lit it, it run out of gas."
On November 10, 2009, David Linebaugh ("Linebaugh"), a delivery man for Consumers Oil, came to the Wilmeses' property to deliver the previously ordered 400 gallons of liquid propane. Thomas left the trench, through which the pipe was located, open so that Consumers Oil could inspect the piping from the tank to the exterior wall of the outbuilding. At the time of delivery, Thomas told Linebaugh that the system was a new installation and asked him to check the line and the heater. Linebaugh visually observed the system and indicated that it was okay. Thomas informed Linebaugh that the heater had "rolled back—burnt back inside the burner" like it was not getting enough air. Linebaugh replied, "well, that's not that big of deal."
Numerous code requirements are applicable to liquefied petroleum gases and originate from the National Fuel Gas Code drafted by the National Fire Protection Agency ("NFPA"). These requirements were enacted into law pursuant to Section 323.020(2)4 and are codified in 2 C.S.R. 90–10.020. Relevant to this case, 2 C.S.R. 90–10.020 (1999) regulates the installation of liquefied petroleum gas appliances and gas piping, and 2 C.S.R. 90–10.040 (2001) regulates storage and handling of liquefied petroleum gases. Those C.S.R. provisions incorporate Rules 54 and 58, respectively, of the NFPA's code.
Linebaugh filled the tank with the 400 gallons of propane. Linebaugh did not conduct a "leak check" or a "pressure test" on the propane system. A "pressure test" is required by code when there is a new propane gas installation. A "pressure test" is more extensive than a "leak check" because it tests for leaks not only in the joints but also throughout the piping. A "pressure test" checks for leakage by putting pressure with an inert gas to the system at approximately one and one-half times the operating pressure and the system is required to hold that pressure. David Meyer, an expert for the Wilmeses, testified that Thomas's attempt to test-fire the heater was not successful operation of the system so as to relieve Consumers Oil of its responsibility to conduct a pressure test because the installation still would be considered new.
Linebaugh provided Thomas with written materials warning about the dangers of propane, which he acknowledges he did not read. However, Linebaugh did not make a record or warn Thomas of several code violations regarding the system. One violation was that the data plate on the propane tank was illegible. The data plate is important in the industry as an indication of the history of the container in part to show that the container has not been designed for a different liquid petroleum gas. Other code violations included that the tank was placed on wood and unfilled cinder blocks, the tank was only eight feet from the side of the building, and there was no manual shut-off valve. The code requires that propane system owners be warned of any deficiencies in the system and that if deficiencies exit, the system must be locked out to prevent its use until the violations are remedied. Rule 58. Finally, Linebaugh did not document that he performed either a "leak check" or a "pressure test." He admits that he did not perform a pressure test. While he maintains he did perform a "leak test"—a disputed fact—even if he did perform the test, the failure to document that he did the test is in violation of the code. Rule 54. Meyer testified that the deficiencies in the installation of the system should have put a prudent gas company on notice that even if Thomas represented that he was qualified to install such a system, he may not have been.
Immediately following the propane delivery, Thomas tried the heater, which made a "roaring sound" like it still had air in the line. Thomas turned off the gas at the tank by closing a valve, and then he left for a hunting trip. A few days later, Thomas temporarily returned from the hunting trip. While there, he opened the valve at the tank and lit the heater by turning up a thermostat on an interior wall of the outbuilding. The heater made the same noise, and Thomas, who was in a hurry to return to the hunting trip, adjusted the thermostat temperature so as to turn off the heater. The tank valve was left in the open position at that time. Thomas resumed his hunting trip.
When Thomas returned from the trip the second time, he opened the door, walked into the shop, turned on the light and headed toward the thermostat. After he adjusted the thermostat, he walked about ten feet toward the heater to observe it, and there was an explosion. Thomas was severely burned but survived. He sustained bums over most of his body, the loss of multiple fingers, and injuries to his sternum. He spent 63 days in the hospital, 31 of which were in a coma, and underwent skin grafts and other procedures. He also suffered significant mental anguish and depression.
Maryville police and fire departments responded to the scene within nine minutes and secured the scene within twenty-one minutes. Also within minutes of the explosion, Consumers Oil was notified of the explosion, and the fire department spoke with Linebaugh. (transcript, p. 32) The roof of the outbuilding had been blown off and insulation from the ceiling was on the floor of the outbuilding. The fire captain and other personnel investigated the scene and took pictures that included the heater. The fire department report concluded: "From the nature of the damage with the roof being blown off the cause of the explosion is from an accumulation of propane gas on the attic space." Phillip Rickabaugh ("Rickabaugh"), an officer with the Maryville Public Safety Department in the fire division, concluded that because propane is heavier than air and because it accumulated above the drop ceiling, the propane escaped the system from somewhere in the piping that ran above the drop ceiling—in other words, the leak would have been above the attic crawl space—and not from the heater unit which was located below the ceiling. Timothy Dunn ("Dunn"), Wilmeses expert, opined by affidavit as follows:
From the date of the propane delivery, to the time of the incident, Thomas had spent much of the time away from his home, and there is no evidence whatsoever of any alterations being made in the gas piping between those dates. With absolutely no modifications to the gas system after this propane delivery, the piping up to the heater controls would have remained "charged"—not deactivated or in effect not interrupted—even when the gas supply had been turned off by Mr. Wilmes, if in fact the [Consumers Oil ] had conducted a proper leak check. As such, the closing and opening of the valve on the tank by Mr. Wilmes after [CONSUMERS OIL] delivered the propane did not constitute an installation, modification, repair, or servicing of equipment and appliances within the meaning of the Missouri Propane Safety Act, 323.060.
(Emphasis in original.)
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