Clay v. Ferrellgas, Inc.

838 P.2d 487, 114 N.M. 333
CourtNew Mexico Court of Appeals
DecidedAugust 14, 1992
Docket11623
StatusPublished
Cited by6 cases

This text of 838 P.2d 487 (Clay v. Ferrellgas, Inc.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clay v. Ferrellgas, Inc., 838 P.2d 487, 114 N.M. 333 (N.M. Ct. App. 1992).

Opinion

OPINION

PICKARD, Judge.

Royce Clay and Sheila Snider sued appellants for personal injuries sustained when propane gas ignited and caused a fire in Snider’s car while the women were seated in it. Appellants appeal from the jury verdict awarding Clay and Snider compensatory and punitive damages. Appellants contend that the trial court should have granted judgment in their favor because their actions were not the proximate cause of the accident, and that the trial court incorrectly submitted the issues of punitive damages and strict products liability to the jury. Other issues raised in the docketing statement but not briefed are deemed abandoned. See State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). We reverse the award of punitive damages, but affirm in other respects.

FACTS

The evidence on various points was conflicting in this case. In discussing the facts pertinent to the issues raised on appeal, we construe the evidence in the light most favorable to the verdict. Barnes v. Sadler Assocs., Inc., 95 N.M. 334, 622 P.2d 239 (1981).

The car was a gift to Snider from her companion, Boyd Clement. After the transfer of ownership, Snider and Clement decided to have the ear’s fuel system altered so that it could run on liquid propane in addition to gasoline. Appellant Ferrell-gas was in the business of selling propane gas and appliances, as well as providing related services. Appellant Candelaria was an employee of Ferrellgas. Although at least one other Ferrellgas employee, Gerald Schell, dealt with Clement on the conversion project, Schell was not named as a defendant. On appeal, appellants characterize themselves as Ferrellgas and make no distinction between the corporation and either or both of the employees. We do the same.

Clement asked Ferrellgas to make the necessary adjustments to convert the car to propane fuel. Part of the arrangements between Clement and Ferrellgas involved Clement’s purchase of a used propane tank from Candelaria, who installed the tank in the trunk of the car. Candelaria could not specifically recall whether he “leak-tested” the tank, but he admitted that it was his practice to leak-test each tank he installed. In order to test a tank for leaks, it must contain propane. In order to remove all propane from a tank, the tank must be purged with an inert, nonflammable gas, such as nitrogen.

Among other things, conversion to propane requires installation of a sealed barrier between the trunk of the car and the passenger compartment to protect vehicle occupants from the dangers of leaking gas. Because of its location, the presence or absence of such a barrier in this case would not have been immediately visible.

Ferrellgas admitted that it was aware that a tank containing propane must have a vapor barrier installed to protect vehicle occupants, and the tank must be vented to the outside so that if it leaks, gas escapes to the outside rather than remaining in the vehicle, where it poses a danger to occupants. Schell indicated that for a conversion to be legal, adjustments must be made so that the propane tank can be “remote-filled” from outside the vehicle’s trunk.

Candelaria stated that although he originally undertook work on the car as a complete conversion job, Ferrellgas in fact did not do a complete conversion, apparently because of difficulty in obtaining some of the necessary parts. Because of the delay, Clement retrieved the car from Ferrellgas. At that point, Ferrellgas had only repainted and installed the propane tank. Ferrellgas had not vented the tank or placed a vapor barrier between the trunk and the passenger compartment or made the adjustments to allow for remote-filling. Clement was told that the car could not yet be run on propane due to the incomplete nature of the work, but he was not warned by Ferrellgas that the tank as installed was dangerous.

Clement subsequently took the car to mechanic Gary Roybal to complete the conversion. Roybal removed the tank, repainted it, and then repositioned it in the same manner that it had been installed by Ferrellgas. He also obtained the parts needed to finish the conversion and completed the adaptation of the car’s carburetion system. Roybal leak-tested only the parts of the conversion system that he had installed. He did not test the rest of the tank or remove the back seats of the car to see whether a vapor barrier was in place. He explained that he did not check for a vapor barrier because he assumed that Ferrellgas had placed one in the trunk when it initially installed the tank.

After Roybal’s work, the car could be run on propane, but Snider did not operate it on propane because Clement still intended to take the car back to Ferrellgas so that it could adapt the tank for remote-filling. Neither Clement nor Snider ever put any propane in the tank prior to the accident. Roybal also denied placing propane in the tank. He was sure, however, that there was propane in the tank when he received the vehicle.

On September 20, 1987, propane gas leaked from a faulty valve on the tank, migrated into the passenger compartment of the car, and exploded when Snider turned the key in the ignition. According to expert testimony at trial, the tank was unsafe and the explosion could have occurred any time after the car was picked up from Ferrellgas, given the presence of propane, the faulty valve, the lack of a vapor barrier between the trunk and the passenger compartment, and the lack of proper venting.

The jury determined that Ferrellgas was 89 percent at fault for the accident in that Candelaria or Schell was negligent or failed to provide adequate warnings. The jury held Ferrellgas liable to Clay for compensatory damages in the amount of $250,000, and to Snider in the amount of $345,000. In addition, the jury found that the actions of Ferrellgas were reckless or grossly negligent and awarded each woman punitive damages in the amount of $375,000.

PROXIMATE CAUSE

Ferrellgas argues that the trial court should have granted judgment in its favor because Roybal constituted an independent intervenor whose negligence was the sole proximate cause of the accident. We disagree.

Proximate and independent intervening cause questions are generally issues to be decided by the jury. See City of Belen v. Harrell, 93 N.M. 601, 603 P.2d 711 (1979); Rickerson v. State, 94 N.M. 473, 612 P.2d 703 (Ct.App.1980). The proximate cause of an injury is “that which in a natural and continuous sequence [unbroken by an independent intervening cause] produces the injury, and without which the injury would not have occurred.” SCRA 1986, 13-305. The proximate cause of an injury need not be the last act, or nearest act, to the injury but may be one which actually aided in producing the injury, and proximate cause need not be the sole cause but merely a concurring cause. Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970).

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Bluebook (online)
838 P.2d 487, 114 N.M. 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clay-v-ferrellgas-inc-nmctapp-1992.