Heifner v. Synergy Gas Corp.

883 S.W.2d 29, 1994 Mo. App. LEXIS 1431, 1994 WL 498460
CourtMissouri Court of Appeals
DecidedSeptember 9, 1994
Docket18511
StatusPublished
Cited by8 cases

This text of 883 S.W.2d 29 (Heifner v. Synergy Gas Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heifner v. Synergy Gas Corp., 883 S.W.2d 29, 1994 Mo. App. LEXIS 1431, 1994 WL 498460 (Mo. Ct. App. 1994).

Opinions

CROW, Judge.

On June 24, 1988, Tim Heifner and Ronald Tune were burned in a propane gas explosion and fire. They had obtained the propane earlier that day at 71 Truck Stop, which had bought it from Synergy Gas Corporation (“Synergy”).

Tune sued Synergy. Heifner and his wife, Marcia, also sued Synergy.

Tune’s suit was tried first. He won. Synergy appealed. In Tune v. Synergy Gas Corporation, (Mo. banc, 1994), 883 S.W.2d 10, the Supreme Court of Missouri affirmed the judgment except the damage award, which was reversed. The Supreme Court remanded for a new trial on that issue alone.

The Heifners also won their suit. The jury: (a) assessed 100 percent fault against Synergy, (b) found Tim’s damages to be $170,000, and (c) found Marcia’s damages to be $25,000.

[32]*32The trial court allowed Synergy a $47,500 credit against Tim’s damage award, for sums received' earlier by him from other parties with whom he had settled. The trial court allowed Synergy a $10,000 credit against Marcia’s damage award for sums received earlier by her from other parties with whom she had settled. After those credits, the trial court added prejudgment interest, producing a judgment for $130,555.66 in favor of Tim and $15,995.64 in favor of Marcia.

Synergy brings this appeal from that judgment, presenting four assignments of error.

As in Tune, the Heifners (“Plaintiffs”) submitted their claim on strict liability — failure to warn.1 Synergy’s first point relied on maintains the trial court erred in denying Synergy’s motion for a directed verdict in that Plaintiffs failed to make a submissible case on that theory. Specifically, asserts Synergy:

“(A) The product sold by ... Synergy ... was substantially modified and made unsafe because the propane sold by Synergy ... was sold only to 80% capacity of the tank to which it was added, but when it was sold by 71 Truck Stop to Plaintiff it was modified by filling the cylinder to 100%;
(B) there was no expert testiihony that a warning would have made the propane reasonably safe;
(C) the evidence failed to establish that any of the warnings demanded by Plaintiff could have prevented the accident herein.”

The evidence in Tune, viewed favorably to the verdict, is set forth in the Supreme Court’s opinion. The evidence in the instant case, viewed favorably to the verdict, was essentially the same as in Tune. Therefore, we shall not repeat the evidence in this opinion, but instead shall set forth only the evidence peculiar to this case where necessary to address Synergy’s claims of error.

Synergy’s first point in Tune, like its first point here, asserted the trial court should have directed a verdict for Synergy because the evidence failed to make a sub-missible case on strict liability — failure to warn. Like its first point here, Synergy’s first point in Tune had three paragraphs, designated “(A),” “(B),” and “(C).”

Paragraph “(A)” of Synergy’s first point in Tune is a twin of paragraph “(A)” of Synergy’s first point here (quoted above). In its brief, Synergy concedes paragraphs “(A)” in Tune and here are “virtually identical” except for “applicable transcript references.”

The Supreme Court rejected paragraph “(A)” in Tune. 883 S.W.2d at 14. We are constitutionally controlled by that ruling. Smith v. St. Louis Public Service Co., 364 Mo. 104, 259 S.W.2d 692, 694[1] (banc 1953); Mo.Const., Art. V, § 2 (1945). Accordingly, we deny paragraph “(A)” of Synergy’s first point.

Paragraph “(B)” of Synergy’s first point is not identical to paragraph “(B)” in Tune. As we understand paragraph “(B),” Synergy’s premise is that in order to make a submissible case of strict liability — failure to warn, Plaintiffs had to present “expert testimony” that a warning “would have made the propane reasonably safe.”

Of course, a warning would not alter the dangerous nature of propane. It would be as inherently dangerous after the warning as before. However, an adequate warning would alert a sensible, but unexpert, user about the danger and enable him to take precautions to minimize the risk.

Synergy insists, “[Tjhere is no causal relationship between Synergy’s asserted failure to warn and the accident in this case.” However, the Supreme Court held in Tune that if [33]*33there is sufficient evidence from which a jury could find that the injured person did not already know the danger, there is a presumption that a warning will be heeded. 883 S.W.2d at 14.

Tim testified he did not know heat made propane expand or that it was dangerous to overfill a propane tank, as the gas might escape. That testimony gave rise to a presumption that a warning would have been heeded. 883 S.W.2d at 14.

The Supreme Court in Tune declined to adopt a rule requiring expert testimony to make a submissible case in every “failure to warn” action. 883 S.W.2d at 14. Paragraph “(B)” of Synergy’s first point is without merit.

Paragraph “(C)” of Synergy’s first point is identical to paragraph “(C)” in Tune. Additionally, Synergy’s argument following paragraph “(C)” in both cases is virtually identical, except for inconsequential evidentiary variances. The authorities cited by Synergy in support of paragraph “(C)” are the same in each case.

The Supreme Court rejected paragraph “(C)” in Tune. 883 S.W.2d at 14. Accordingly, we deny paragraph “(C)” here.

Synergy’s second point assigns error in the trial court’s refusal to give Instruction C, tendered by Synergy. Instruction C read:

“The issue of the Defendant’s failure to properly train Lonnie Culp is withdrawn from the case and you are not to consider such issue in arriving at your verdict.”

Culp was “the attendant at 71 Truck Stop,” referred to in Tune. 883 S.W.2d at 12. One of the theories of liability pled by Plaintiffs was that Synergy failed to train Culp as to the method and procedure for filling portable liquid propane tanks so as to ensure the tanks would not be overfilled. During Plaintiffs’ case, the following stipulation was read to the jury by agreement:

“Synergy Gas has a responsibility to make sure that retail customers, such as 71 Truck Stop, know how to safely dispense propane. After acquiring Granby Gas on May 12, 1988, no safety visits were made by Synergy Gas officers, employees, or agents, to the 71 Truck Stop. Nor were any safety materials delivered to the truck stop by anyone on behalf of Synergy Gas, Inc., prior to June 24, 1988.”

Plaintiffs presented evidence that Synergy should have trained Culp about filling propane cylinders and the dangers of overfilling. One of Plaintiffs’ witnesses testified that Culp’s statement to Tim and Tune that he (Culp) was giving them a good deal demonstrated he: (a) thought the reason for not overfilling a propane tank was to avoid giving away free gas, and (b) did not understand the danger inherent in overfilling.

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Heifner v. Synergy Gas Corp.
883 S.W.2d 29 (Missouri Court of Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
883 S.W.2d 29, 1994 Mo. App. LEXIS 1431, 1994 WL 498460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heifner-v-synergy-gas-corp-moctapp-1994.