Generally, a person who places on the market articles inherently or intrinsically dangerous to life owes a duty of care to all those persons whom they have foreseen to use it. However, a manufacturer or seller of a defective article will not be liable for injuries to the person of an ultimate consumer who has purchased such articles from a middleman. But, in cases where the injury result’s from the manufacturer’s negligence in manufacturing or packing or putting upon the market without due warning any article that is inherently or intrinsically dangerous to life and limb, then the manufacturer will be held liable to the ultimate consumer.
In Frazier v. Ayres, 20 So. 2d 754 (La.App. 2 Cir. 1945), the court observed that “the liability here does not arise out of contract or deceit, but is based upon the fundamental proposition that where a person sustains such relations to society that danger to others will result from a failure to use due care in his activities, he owes the legal duty of such care to that class of persons likely to be injured by his failure to exercise it.”
Therefore, a seller or distributor of liquid or bottled fuel gas must use a degree of care to prevent the escape of such gas from its pipes and containers. It is their duty to avoid the danger and injury arising from such liquid or bottled fuel gas. Accordingly, where the person suffering injury or damage is free from contributory negligence, the seller or the distributor will be held liable for damages.
In imposing liability no valid distinction is made between a company supplying liquid gas by trucks and a company supplying gas through pipes in a city, because the duty of care owed by both are the same.
The liability of distributors and sellers of bottled gas, or liquefied petroleum gas generally arises in the following circumstance[i]:
- when they fail to exercise reasonable care in accordance with the danger that can be reasonably anticipated by a prudent person; and
- when they negligently fill the tank of their customers in a manner so as to allow an escape of the dangerous substance.
Strict liability is imposed against a seller of propane if the following conditions are satisfied:
- that s/he furnishes a tank or other equipment to a user;
- that a damage has resulted from a defect in the tank, equipment, or related apparatus; and
- that the event of furnishing the tank or equipment is an incident of and partial consideration for the sale.
However, in the absence of malice or reckless disregard for a gas station operator’s safety, a supplier or distributor cannot be held liable for punitive damages in an operator’s action, if the operator was injured by an exploding propane tank that s/he was filling for a customer. Hence in order to recover punitive damages, the plaintiff must prove by clear and convincing evidence that the defendant’s conduct is outrageous. For instance, the plaintiff must show that the acts were done with malice, bad motives, or reckless indifference to the interests of another. If there is no evidence giving rise to an inference of actual malice, or reckless indifference equivalent to actual malice, the trial court need not submit the issue of punitive damages to the jury.
Any agreement made between a distributor of liquid gas and injured person to relieve the distributor from liability for injuries or damage is void and contrary to public policy. However, a contractual provision that a distributor of propane gas shall have no duty to inspect pipes and equipment under the sole control of the consumer is considered valid. Provided the company should be under no duty to inspect the customer’s pipes in the absence of knowledge of defects. In support of this rule the court in Lewis v. Southern California Gas Co., 92 Cal. App. 670 (Cal. App. 1928), observed that “If gas pipes and fittings are the property of the consumer, and there is no contractual duty resting on the gas company to inspect, the consumer, by application for gas service, assumes the burden of inspecting and maintaining the pipe and fittings on his property in a manner reasonably suited to meet the required service, and the company has the right to assume that these duties have been performed by the applicant. However, the company would be responsible for inspection and the condition of the meter and its connections which it installs on the premises of the consumer.”
[i] Clay v. Butane Gas Corp., 151 Neb. 876 (Neb. 1949).