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03/17/95 TANGIE MCGHEE v. ORYX ENERGY COMPANY

March 17, 1995

TANGIE MCGHEE
v.
ORYX ENERGY COMPANY



Appeal from Talladega Circuit Court. (CV-91-503). Jerry L. Fielding, TRIAL JUDGE.

Released for Publication June 27, 1995.

Butts, Almon, Shores, Houston, and Ingram, JJ., concur.

The opinion of the court was delivered by: Butts

BUTTS, JUSTICE.

Tangie McGhee appeals from a judgment based on a directed verdict for the defendant Oryx Energy Company in a negligence action.

On December 30, 1990, Oryx Energy sold 10,250 gallons of propane gas to Economy Gas Company, of Childersburg, which, in turn, sold it to Gladys McCraven, doing business as Propane Gas Company, of Talladega. An Economy Gas truck picked up the propane gas at a pipeline company in Opelika and delivered it to McCraven in Talladega.

On November 5, 1991, McCraven sold 100 gallons of the propane gas to Katherine McGhee of Talladega, who had been a customer of McCraven's since 1990. Two of McCraven's employees, Billy Wideman and William Wyatt, delivered the gas on the same day to McGhee's house, where she resided with her daughter, Tangie. The propane gas was to provide heat to four unvented gas space heaters located in various rooms throughout the house.

When the gas was delivered, Katherine McGhee informed Wideman that she and Tangie smelled gas even when the heaters were off and requested that Wideman check the heaters for any possible leaks. Wideman checked for gas leaks around the fittings of the heaters and performed a "sniff test." Wideman concluded that there was not a gas leak; however, the McGhees continued to smell gas and reported that fact to McCraven's office later that day.

The next day, November 6, McCraven employee Brinton Coughran responded to the report and performed the same tests as Wideman had performed on the previous day, but he could not find a leak or smell gas. Before Coughran left the McGhee residence, he lit three space heaters in the house and assured Tangie that it was safe to do so. Within a few minutes after Coughran left, the house was destroyed by a propane gas explosion and Tangie was injured in that explosion. It was later determined, and is undisputed, that the explosion was caused by a gas leak from a rusty pipe connected to the four heaters.

Tangie McGhee sued McCraven, doing business as Propane Gas Company; McCraven's insurer, Ranger Insurance Company; and Oryx Energy, alleging negligence on the part of Oryx Energy that she claimed resulted in her injuries. McCraven and Ranger Insurance Company, after entering into a pro tanto settlement with Tangie, were later dismissed as defendants, and Tangie's claims against Oryx Energy went to trial. Tangie alleged specifically that Oryx Energy had negligently failed (1) to properly odorize the propane gas that was involved in the explosion that injured her; (2) to warn propane gas users of the availability of a propane gas leak warning device; (3) to warn her and/or McCraven about the importance of performing pressure tests on gas systems when a leak is suspected and to warn them of "odor fade" in propane gas, i.e., the tendency of an odorant agent added to the otherwise odorless propane gas to lose its scent over time; and (4) to restrict the sale of propane gas to distributors known to Oryx Energy to have adequate safety and testing procedures for handling and delivering propane gas to consumers.

At the close of Tangie's case, the trial court granted Oryx Energy's motion for a directed verdict on all four claims asserted by Tangie. Tangie had admitted that Oryx Energy had not negligently failed to assure that the propane was properly odorized and had not negligently failed to warn her about the existence of available gas leak warning devices, but she contends on appeal that the court erred in directing a verdict on the remaining counts.

Tangie first argues that there was evidence to establish that Oryx Energy had a duty to warn its distributors and consumers about the possibility that the odorant in the propane might fade and thus make it difficult to detect a gas leak. She argues that, had McCraven's employees been properly educated about "odor fade," they would not have concluded that there was no leak merely because they could not detect the smell of gas.

We note that Katherine and Tangie McGhee testified that they smelled the gas on the day it was delivered and that they were afraid to light the heaters because they suspected a gas leak. They say they continued to detect this smell up until the explosion, although it apparently was not detectable to McCraven's employees. There was evidence that some individuals are better able to detect the odorant than others, simply because of differences between individuals in their olfactory senses or because one who becomes accustomed to the smell might not detect it so well. This evidence indicates that the odorant in the propane gas simply did not fade and therefore could not have caused Tangie's injuries; however, because a jury would be free to draw the inference that the odorant had faded to the point that some individuals could not smell it, we will base our Discussion of this issue upon that inference.

A manufacturer is not liable if it has made reasonable efforts to convey product information and/or warnings that, because of circumstances beyond its control, were not passed on to, or were not received by, the ultimate user. Purvis v. P.P.G. Industries, Inc., 502 So. 2d 714 (Ala. 1987). Additionally, where a third party has an independent duty to warn the ultimate user of the dangers associated with the use of a product, the manufacturer is justified in relying upon that third party to perform its duty. Purvis, 502 So. 2d at 720. In Purvis, the ultimate user of a dry cleaning solvent brought a products liability action against the manufacturer of the solvent, based on the theory that the manufacturer had a duty to warn her of the dangerous nature of the chemical and of the possibility that she might be injured by exposure to the solvent. This Court affirmed the summary judgment in favor of the manufacturer, holding that the fact that the ultimate consumer did ...


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