STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 04-692
FRED LEE PERKINS
VERSUS
WURSTER OIL CORP., ET AL.
**********
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-2001-088 HONORABLE PATRICIA C. COLE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Oswald A. Decuir, Judges.
Cooks, J., concurs in the result.
REVERSED.
John Craig Jones Attorney at Law 131 Hwy 165 South Oakdale, LA 71463 (318) 335-1333 Counsel for: Plaintiff/Appellant Fred Lee Perkins David R. Rabalais Attorney at Law P. O. Drawer 54024 Lafayette, LA 70505 (337) 289-6555 Counsel for: Defendant/Appellee Wurster Oil Corp.
James David Cain, Jr. Lundy & Davis P. O. Box 3010 Lake Charles, LA 70602 (337) 439-0707 Counsel for: Plaintiff/Appellant Fred Lee Perkins SAUNDERS, J.
The issues on appeal to this court arise from an accident occurring when
Plaintiff was filling his automobile with gasoline. Fred Perkins stopped at a gas
station to fill his truck. While the process was ongoing, static electricity ignited the
fuel vapors. Mr. Perkins was burned by the fire and filed suit alleging that he was
never warned of the dangers of static electricity and that the pump was improperly
grounded.
FACTS
The facts of this case are largely undisputed. On March 4, 2000, Fred Perkins
stopped at a convenience store in Oakdale, Louisiana, the “Stop & Shop,” to fill his
truck with gasoline. Mr. Perkins was accompanied by Corey Fontenot and Josh
Domingue. Upon arrival at the Stop & Shop, Plaintiff pulled up to a pump and turned
off his truck. Mr. Fontenot went inside to pay for $15.00 worth of gas and Plaintiff
got out of the vehicle to begin pumping the gasoline. Mr. Perkins put the nozzle into
his tank and engaged the automatic dispenser level. As the fuel was being pumped,
Plaintiff re-entered the cab of the truck. Apparently, he sat down to flip through some
of his compact discs. When the gauge on the pump reached $13.00, Plaintiff got out
of the vehicle so that he could stop it at $15.00.
Plaintiff claims that he touched the bed of his truck before he reached for the
nozzle; however, Defendant contests this allegation. Essentially, this is the only
disputed fact in the case. Plaintiff then reached for the nozzle and a spark ignited the
gas vapors. Both parties agree that the spark was caused by static electricity.
Plaintiff then jerked the hose away from his truck and he was sprayed with gas and
caught on fire. Because he was trapped between the open truck door and the flames at the rear of his truck, Plaintiff crawled through the vehicle to the other side. A
bystander pushed him to the ground and extinguished the flames.
The fire produced a small area of third degree burns surrounded by an area of
second degree burns with first degree burns at the edges. Plaintiff was treated twice
at Oakdale Community Hospital before beginning treatment at the LSU Burn Center
in Shreveport on March 7, 2000. After his initial visit to Shreveport, Plaintiff
returned to the burn center once a week for follow-up examinations and dressing
changes. By the beginning of May 2000, the majority of Plaintiff’s wounds had
healed. The area of skin covered by third degree burns, however, had not. Plaintiff
underwent skin graft surgery to replace that area on May 8, 2000 and has permanent
scars from the burns.
PROCEDURAL HISTORY
Suit was filed against Wurster Oil Corporation, Petron Inc., and Trinity
Universal Insurance Company on September 16, 2001. Plaintiff alleged that the static
electricity emanated from the pump and that Defendants failed to warn him of the
dangers posed by static electricity. Trial on the merits began on December 1, 2003
in the Thirty Third Judicial District Court. The jury found in favor of Defendants and
a judgment to that effect was signed on January 2, 2004. Plaintiff filed a Motion for
New Trial and a Motion for JNOV, both of which were denied. Plaintiff has now
appealed.
ASSIGNMENTS OF ERROR
1) The jury’s findings of fact were “manifestly erroneous.” The record
reflects that there is no reasonable factual basis for the findings of the
-2- trial court. The record establishes that the findings of the trial court
regarding the liability of the Defendants, Wurster Oil and Petron, Inc.,
is “clearly wrong.”
2) The trial judge committed reversible error as a matter of law in not
instructing the jury regarding the doctrine of res ipsa loquitur. Failure
of the trial judge to properly instruct the jury contributed to the verdict,
for the jury charges as a whole did not adequately provide the correct
principles of law as applied to the issues framed in the pleadings and
presented at trial so as to properly guide the jury in its deliberations.
3) The trial judge erred in failing to strike the testimony of James Roberts
and admonishing the jury to disregard his testimony after he testified
regarding documents (blueprints/schematics) of the subject pump and
gas dispensing system after the Defendants were sanctioned for failing
to comply with a judgment on Plaintiff’s Motion to Compel in failing to
produce these documents, which were the basis of Mr. Roberts’
testimony which constituted unfair surprise and trial by ambush.
4) The trial judge erred by denying Plaintiff’s Motion for JNOV and/or
New Trial based upon Defendants’ complete disregard for the rules of
discovery and in failing to produce documents that Plaintiff sought pre
trial, including blueprints and schematics upon which Mr. Roberts’
testimony was based. Defendants were ordered to comply with
Plaintiff’s Motion to Compel and, thereafter, were sanctioned for
violating the Court’s judgment on Plaintiff’s Motion to Compel. In
-3- addition, the evidence, as a whole, clearly established the Defendants’
liability for the fire that caused Plaintiff’s injuries.
LAW AND ANALYSIS
The standard of review for findings of the trial court has been clearly
established in this circuit. A court of appeal may not set aside a judge’s factual
finding unless that finding was manifestly erroneous or clearly wrong. Stobart v.
State, through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest
error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not
be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.
1990). “If the trial court or jury’s findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even though convinced
that had it been sitting as the trier of fact, it would have weighed the evidence
differently.” Id. at 1112. Furthermore, when reviewing questions of law, appellate
courts are to determine if the trial court’s ruling was legally correct or not. Cleland
v. City of Lake Charles, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied,
03-1380, 03-1385 (La. 9/19/03), 853 So.2d 644, 645. Because our holding regarding
Plaintiff’s second assignment of error pretermits a discussion regarding other
assignments, we will address it first.
ASSIGNMENT OF ERROR NUMBER 2
In Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654
(La.1990), on rehearing, our supreme court examined the doctrine of res ipsa
loquitur. That court explained that res ipsa loquitur permits a factfinder to examine
the circumstances surrounding an incident and infer negligence on the defendant’s
-4- part. Id. It assists a plaintiff in presenting a prima facie case when direct evidence
is not available. Id. For res ipsa loquitur to apply, “the injury must be of the type
which does not ordinarily occur in the absence of negligence.” Id. at 666. This
means that a person of ordinary experience would, given the nature of the incident,
infer negligence. Id. Knowledge common to the community is the basis for
determining if the injury is one from which an ordinary person would infer
negligence. Id.
In addition to establishing that the injury suffered does not normally occur in
the absence of negligence, a plaintiff must show that the negligence of someone other
than the defendant is not a more probable cause of the injury and that the negligence
was within defendant’s duty to the plaintiff. Id. A showing that the injury causing
instrumentality was under the defendant’s control is generally sufficient to
demonstrate that the defendant’s negligence was within the scope of his duty to the
plaintiff. Id.
In Cangelosi, the supreme court also set forth the criteria trial courts are to use
when determining whether or not to instruct the jury on the doctrine of res ipsa
loquitur. Id. The trial judge should give a res ipsa instruction if he finds that
reasonable persons could reach different conclusions regarding the negligence of the
defendant as implicated by the circumstances surrounding the event. Id. Stated
another way, the trial judge must instruct on res ipsa unless “the facts and inferences
point so strongly and overwhelmingly in favor of one party that reasonable men could
not arrive at a contrary verdict.” Id. at 666-67. It is the jury’s job to decide if the
inference permitted by res ipsa loquitur should be drawn. Id.
-5- In Granger v. Guillory, et al., 01-1539, 02-83 (La.App. 3 Cir. 6/5/02), 819
So.2d 477 writ denied, 02-1841, 02-1826 (La. 10/4/02), 826 So.2d 1132, this court
examined the supreme court’s decision in Cangelosi. We noted, as did the supreme
court in Cangelosi, that res ipsa loquitur is a rule of circumstantial evidence that fills
the gap in a negligence case when there is no direct evidence available to the plaintiff.
Id.
We believe that res ipsa loquitur is applicable to the current matter. First, we
conclude that the injury suffered by Plaintiff does not occur in the absence of
negligence. Frankly, people are not supposed to burst into flames when they put gas
in their vehicles. Additionally, due to the conflicting nature of the evidence presented
at trial, we find that reasonable people could reach different conclusions regarding
Defendants’ possible negligence. Accordingly, we feel that the trial judge erred in
not instructing the jury on res ipsa loquitur. Because we believe that this error of law
skewed the findings of material fact and pretermits other issues on appeal, we will
render judgment based upon the record before us after applying the corrected law and
determining the essential facts de novo. Lasha v. Olin Corp., 93-0044 (La. 10/18/93),
625 So.2d 1002.
We must first decide whether the inference of negligence permitted by res ipsa
loquitur should be made. This determination must be based upon an examination of
the factors set forth by the supreme court in Cangelosi and applied by this court in
Granger. First, this injury does not normally occur in the absence of negligence.
Ordinary experience tells us that people generally do not emit sparks, ignite fuel
vapors, and catch on fire when using a gasoline pump. Being set on fire while
-6- performing a task as routine as fueling a vehicle indicates that someone must have
been negligent. Second, in order to warrant the res ipsa inference, Plaintiff must
sufficiently exclude his own responsibility for the accident. The supreme court has
determined that, unless the “facts and inferences point so strongly and
overwhelmingly” in Defendants’ favor, the finder of fact should determine whether
or not the res ipsa inference is proper. Cangelosi, 564 So.2d at 666-67. We believe
Plaintiff’s testimony that he touched the bed of his truck before reaching for the
nozzle is sufficient to shift the burden to Defendants. The facts and inferences in this
matter simply do not overwhelmingly favor Defendants. Finally, Defendants’
negligence must be within the scope of his duty to Plaintiff. The fact that Defendants
were in exclusive control of the gasoline pump indicates that Defendants’ negligence
was, in fact, within the scope of the duty to Plaintiff.
In addition to the fact that we believe this injury does not happen in the absence
of negligence, we find that the res ipsa inference is appropriate because some of the
physical evidence bearing on this case was either destroyed or discarded. Defendants
maintain that they had the entire pumping apparatus, from the ground to the tip of the
nozzle, tested four days after the incident and no defects were found. By the time
Plaintiff secured an expert and had him travel here to examine the pumping apparatus,
the hose, swivel and nozzle had been removed and discarded. Defendants were
sanctioned for the spoliation of this evidence. Defendants attempt to explain these
actions by claiming that Plaintiff never requested this evidence be preserved;
however, we find this unpersuasive. First, Defendants should be aware that this
evidence should have been made available to Plaintiff. Second, if the tests run by
-7- Defendants truly did indicate that they were not liable for the accident, why would
they not want to preserve this evidence? Res ipsa loquitur is a rule of circumstantial
evidence available to a plaintiff when direct evidence is not present. Based on our
belief that this type of accident doesn’t occur in the absence of negligence and the
lack of direct evidence, we infer negligence on Defendants’ part. After inferring
negligence, we will examine the facts to determine if this inference was rebutted.
Both parties agree that the spark causing the fire occurred in the area where Plaintiff’s
hand touched or got closest to the nozzle. The spark must have emanated from this
area because static electricity can only jump, or arc, over a very small distance.
Accordingly, the most logical place for this to occur was between Plaintiff’s hand and
the nozzle because they were in very close proximity, if not touching. While they
agree on where the spark arose, the parties disagree on its source. Plaintiff blames
an improperly ground dispensing system but Defendant argues that the spark resulted
from the build up of static electricity on Plaintiff while he was in the truck during the
fueling process.
Plaintiff’s expert, Mike Schultz, examined Mr. Perkins’ truck and determined
that its fuel system was not the cause of the static spark. Additionally, Mr. Schultz
examined the fabric on the interior of the truck as well as Plaintiff’s clothes to
determine if either produced the static electricity. He found both materials to be poor
conductors of electricity; therefore, he excluded them as possible sources of the static
electricity. This left the dispensing system as the only possible source of the electric
charge. In further support of his contention, Mr. Schultz noted that there was no
spark when Plaintiff initially approached the pump. If Plaintiff was the source of the
-8- electricity, Schultz concluded, he would have felt a spark the first time he got out of
his truck. Accordingly, Mr. Schultz surmised that the static electricity originated in
the dispensing system. This conclusion is in harmony with the fact that gasoline, by
virtue of its physical properties, generates significant amounts of static electricity as
it flows through pipes. Mr. Schultz’ testimony that static electricity is created when
gas flows through a closed system, such as a gas pump, was uncontradicted;
therefore, it is logical to assume that the dispensing system was the source of the
static electricity resulting in the spark.
Plaintiff also claims that when he exited the vehicle for the second time he put
his hand on the bed of the truck before reaching for the nozzle. This is significant
because if, in fact, static electricity built up on Plaintiff’s person it would have
dissipated when he touched the metal bed of the truck. This means that if static
electricity was present it could only have come from the gas pump. Defendants argue
that Plaintiff is lying about this fact in order to establish liability on their part. Given
the circumstances of Plaintiff’s initial exit from the vehicle, we find this debate to be
irrelevant. Plaintiff left the door to his truck open and only had to touch the non-
metallic instruments to open his door and exit the vehicle. Plaintiff, however, never
experienced a static electricity spark, or arc, at any time when he initially exited the
vehicle. Therefore, even assuming Defendants are correct and Plaintiff did not touch
the bed when he exited the second time, they offer no explanation as to why static
electricity would have built up on Plaintiff while sitting in his truck during the fueling
process but not when driving to the station. The only difference between the first and
second time Plaintiff approached the pump is that gas was flowing through it the
-9- second time. It has already been established that this process generates static
electricity.
Defendants called only one witness on their behalf who addressed the static
electricity issue. James Roberts, a maintenance supervisor for Petron, Inc., offered
no explanation regarding the fact that Plaintiff experienced no static spark or arc
when he initially exited his vehicle. Rather, he testified that he checked the electrical
continuity of the pump four days after the accident. Mr. Roberts claims that the entire
system was continuous, meaning that static electricity could not have built up
because the pump was properly grounded. Again, it should be noted that Plaintiff
was never able to test the entire system, or even just the hose, swivel and nozzle, for
electrical continuity. Mr. Roberts further testified that, if the pump had not been
properly grounded, it may have exhibited technical problems. No such problems
were reported on the day of the accident. We find that this testimony falls short of
explaining the aforementioned discrepancy regarding the fact that Plaintiff did not
experience any static electricity when he originally left his vehicle, which would be
expected if he were the source of the static. Unfortunately, we cannot be certain
because the evidence is not available.
Even if the pump itself was not the source of the static spark, as contended by
Defendants, they must nevertheless bear responsibility because Plaintiff was never
warned that it was possible for static electricity to accumulate on his person and ignite
the gasoline vapors. The evidence indicates that the pump contained a warning
against smoking and leaving the vehicle running. There was no warning, however,
regarding the possibility that the person using the pump could, themselves, be a
-10- source of fire when fueling their vehicles. Business customers are invitees and, as
such, are owed ordinary care. Alpha Alpha, Inc. v. Southland Aviation, 96-928
(La.App. 3 Cir. 7/9/97), 697 So.2d 1364. Accordingly, if it is possible for customers
to generate a charge that will ignite gas vapors simply by sitting in their cars, they
should be warned. The common experience of the motoring public simply does not
comprehend that motorists can ignite such a dangerous fire by merely sitting in their
vehicles. Here, Plaintiff contends that it is extremely unlikely that he was the source
of the spark given the fact that both his clothing and the interior of his truck are poor
conductors of electricity. Regardless of whether or not Plaintiff is correct, he should
have been warned if this danger exists. Not only would such a warning protect
Plaintiff, it would protect everyone else on the premises because a gasoline fire at a
gas station puts everyone there in extreme danger.
When the gravity of harm that may be suffered in these situations is considered,
it becomes obvious that a reasonably prudent owner of such equipment would warn
of this danger, regardless of how remote it might be. The victim basically bursts into
flames when this hazard is realized. Furthermore, everyone on the premises is
endangered because of the volatile nature of gas fires. Accordingly, it becomes
apparent that inviting people to use your gas pumps but not informing them that
merely sitting in their car could lead to this kind of situation is a breach of the duty
of ordinary care.
After finding Defendants liable for the injuries sustained by Mr. Perkins, we
now turn to the apportionment of damages. As owner of the pump at issue in this
matter, Petron had the duty to guarantee that the pump was in working order and to
-11- warn customers of potential hazards associated with its use. Due to the fact the
Defendants discarded some of the physical evidence in this matter without all parties
having the opportunity to examine it, it is impossible to definitively determine
whether Plaintiff or the pump was the source of the static electricity. It is clear,
however, that no warning was provided to Plaintiff. Petron is responsible for placing
appropriate warnings on their own pumps; therefore, we conclude that Petron is
entirely at fault. Plaintiff has incurred $11,025.05 in past medical expenses and faces
future medical costs of $9,693.00 for surgery and related treatments to repair the
damaged portions of Plaintiff’s skin. Additionally, we award Plaintiff general
damages for past and future pain and suffering in the amount of $150,000.00.
CONCLUSION
We reverse the trial court’s decision refusing to instruct the jury on res ipsa
loquitur. This error skewed the jury’s verdict; therefore, we conducted a de novo
review of the record. We find in favor of Plaintiff and award $11,025.05 for past
medical expenses, $9,693.00 for future medical expenses, and $150,000.00 for past
and future pain and suffering. All costs of this appeal are to be assessed against
Petron, Inc.
-12-