Stuckey v. Northern Propane Gas Co.

874 F.2d 1563, 1989 WL 54750
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 13, 1989
DocketNo. 88-8274
StatusPublished
Cited by20 cases

This text of 874 F.2d 1563 (Stuckey v. Northern Propane Gas Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stuckey v. Northern Propane Gas Co., 874 F.2d 1563, 1989 WL 54750 (11th Cir. 1989).

Opinion

JOHNSON, Circuit Judge:

This case arises from a jury verdict finding Dixie Pipeline Co. (“Dixie”) and Ferrell L.P. (“Ferrell”) liable under Georgia law for injuries sustained by the plaintiff in a propane gas explosion caused by the defendants’ negligence. We affirm in part, reverse in part, and remand for a new trial against Dixie.

I. FACTS

In June 1984, Oscar Stuckey was severely burned in the explosion of propane gas which had leaked into an empty house owned by his parents. Stuckey did not smell any propane when he walked through the house prior to the explosion, and thus was not aware of its presence when he used his lighter, triggering the explosion. In its natural state, propane is an odorless gas. Ethyl mercaptan is added to give propane its distinctive smell.

Dixie supplied propane to Northern Propane Gas Co. (“Northern”) who sold propane to Stuckey’s parents and delivered it to the house. Dixie used state of the art equipment to add ethyl mercaptan to all propane it supplied to Northern during the relevant time period. Northern transported propane supplied by Dixie to its bulk storage facility. Although ethyl mercap-tan is a generally accepted and effective odorant, it tends to lose its pungency under certain conditions.1 The propane industry in general has long been familiar with this phenomenon of “odor fade.” The actual knowledge of Dixie and Northern was disputed at trial; however, it was undisputed that neither warned Stuckey about the potential for ethyl mercaptan’s odor to fade.

Stuckey brought suit against Northern, Buckeye Gas Products, and Ferrell (the surviving corporation after the mergers of Northern and Buckeye, and Buckeye and Ferrell). Stuckey also sued Dixie, who was Northern’s propane supplier at the time of the accident. The district court granted summary judgment to defendants on Stuckey’s strict liability claims, and the case proceeded to trial primarily on the theory of defendants’ negligent failure to warn Stuckey about odor fade. At the end of the trial, Dixie moved for a directed verdict which the district court denied. The jury apportioned damages according to fault and assessed $680,000 against Ferrell,2 and $120,000 against Dixie. Holding that personal injury damages may not be so apportioned under Georgia law, the district court corrected the verdict under Rule 60(a) to reflect an award for Stuckey of $800,000 assessed jointly and severally against both Ferrell and Dixie.

[1567]*1567Dixie appeals the trial court’s denial of its motions for summary judgment, directed verdict, and new trial. Ferrell appeals several evidentiary and procedural issues of liability and damages. Stuckey cross-appeals the court’s failure to permit the jury to consider awarding punitive damages.

II. DISCUSSION

A. Dixie’s Motion for Summary Judgment

Dixie moved for summary judgment on Stuckey’s first amended complaint before Stuckey discovered the propane industry’s knowledge of odor fade. The court granted Dixie’s motion for summary judgment on Stuckey’s strict liability claim but denied Dixie’s motion for summary judgment on the negligence count brought by Stuckey. Dixie argues that at the time of its motion, no evidence of the phenomenon of odor fade had yet been adduced; therefore, summary judgment should have been entered. This Court, however, does not review the propriety of orders denying summary judgment motions based on the evidence available when the motion was made. See Holley v. Northrop Worldwide Aircraft Serv., Inc., 835 F.2d 1375, 1378 (11th Cir.1988) (“a party may not rely on the underdeveloped state of facts at the time he moves for summary judgment to undermine a fully-developed set of trial facts which militate against his case”). Even if summary judgment might have been granted at the time the motion was made, we examine the record to see if “by trial the evidence ha[s] been supplemented or changed in some manner favorable to the party who opposed summary judgment.” Id.

In this case, the facts underlying Stuckey’s odor fade theory were developed after Dixie moved for summary judgment. Stuckey proceeded to trial and prevailed on the odor fade issue. That set of facts, having been fully developed before trial, is more than sufficient to defeat Dixie’s argument for reversal of the district court’s denial of its summary judgment motion.

B. Dixie's Motion for Directed Verdict

Dixie also appeals the district court’s denial of its motion for a directed verdict made after presentation of all the evidence. We may reverse the district court’s order only if we find “the evidence, viewed in the light most favorable to the non-moving party, is such that reasonable [jurors] could not arrive at a contrary verdict.” Choui-nard v. Chouinard, 568 F.2d 430, 433 (5th Cir.1978).

1. Douglas

Dixie argues that the district court erred in denying its motion for a directed verdict, because Stuckey did not show that Dixie supplied Northern the gas which caused the explosion. Dixie was not Northern’s sole supplier, although most of Northern's gas at the relevant time probably originated with Dixie. Northern stored gas it received from all sources in the same tanks.

In Douglas v. Smith, 578 F.2d 1169 (5th Cir.1978), this Court granted a directed verdict to Amoco in a propane explosion case where no evidence indicated that Amoco propane remained in a residential tank which exploded and injured the plaintiff. This Court held that there was no “evidence on which the jury could find that Amoco’s gas contributed to the explosion.” Id. at 1175 (emphasis added). Although the burden is on Stuckey to prove causation, Dixie would interpret Douglas to require that Stuckey prove all the gas in his parents’ propane tank came from Dixie. Under Douglas, however, Stuckey must show only that gas supplied by Dixie contributed to his injuries. The unrebutted testimony of Rollins, although speculative at times, provided sufficient evidence for a reasonable jury to conclude that gas from Dixie contributed to Stuckey’s injuries.3 In fact, the jury could have reasonably con-[1568]*1568eluded that most of the gas at the Stuckey household originated from Dixie. This evidence satisfies Douglas and is sufficient to defeat Dixie’s motion for a directed verdict on the ground that Stuckey failed to prove causation.

2. Actual Knowledge of Intermediary

Dixie claims that Northern’s actual knowledge of the phenomenon of odor fade satisfied its duty to warn Stuckey. This assertion that Northern was a “learned intermediary” is Dixie’s primary argument on appeal. Dixie’s duty to warn is governed by the Restatement (Second) of Torts § 388 (1965), as adopted in Beam v. Omark Ind., Inc., 143 Ga.App. 142, 237 S.E.2d 607, 611 (1977).4 See also Rhodes v. Interstate Battery System of Amer., Inc., 722 F.2d 1517

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Bluebook (online)
874 F.2d 1563, 1989 WL 54750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stuckey-v-northern-propane-gas-co-ca11-1989.