Opinion
No. 1:02-cv-036
August 11, 2003
MEMORANDUM AND ORDER
The plaintiff, Ted Goins ("Goins"), a resident of Tennessee, brings this action for claims arising from injuries sustained during an explosion at a propane delivery and temporary storage facility in Dayton, Tennessee. Econ Gas, Inc. ("Econ"), operates the Dayton facility and is a Delaware corporation with its principal place of business in Texas. Heritage Propane Partners LP ("Heritage"), the parent company of Econ, is organized under Delaware law with its principal place of business in Oklahoma. The plaintiff asserts claims for damages in excess of $75,000.
The case is before the Court on the defendants' motion for summary judgment [Court File No. 19]. Goins opposes this motion [Court File No. 23]. The defendants' motion for summary judgment [Court File No. 19] will be DENIED.
I. Facts
The record suggests the following facts if viewed in the light most favorable to the plaintiff. Goins was hired as an independent contractor to perform various tasks at the Econ facility in Dayton, Tennessee. The Dayton facility stores propane for local delivery to customers. Goins is a licensed mechanical contractor and has completed a master gas fitters program. He had worked on a number of other projects for the Econ facility; however, on October 25, 2001, his sole purpose was completion of a contract to reconfigure pipes used by trucks delivering propane to one of the Econ facility tanks.
Prior to reconfiguring the pipes, it was necessary to "blow out" or "burn off" the tank, a procedure during which the highly flammable propane vapors are burned as they escape through a long pipe approximately twenty feet above the ground. The blow out procedure was to be performed over the several days and upon completion Goins would reconfigure the pipes. The parties do not dispute that Econ was responsible for blowing out the tank and that Goins had never performed the blow out procedure. The affidavit of Stacy Harris ("Harris"), an Econ employee, asserts that Harris was responsible for burning off vapors prior to Goins beginning work on the tank.
On the morning of October 25, 2001, Goins and his son, Brigg Goins ("Brigg"), arrived at the Econ facility. They were greeted by Matt Goins ("Matt"), the manager of the Econ facility, and, incidently, Goins's nephew. As the three entered through the gate of the facility, they smelled gas fumes, but after investigating, determined the fumes were the result of a leak in the filling station area.
When Goins, Matt, and Brigg reached the tank that was to be worked on, they noticed that the gauge on the tank indicated that three pounds of pressure remained in the tank. Because this pressure would be inconsistent with completion of the blow out procedure, Matt indicated that he would investigate whether the gage was correct. Goins asserts that at this time he and Matt agreed that some preliminary work could be done on the external portions of the tank. Goins then dug into some of the gravel under the tank allowing him to position himself to remove a section of pipe. He asserts that at this time he was careful to "valve off" the tank to prevent propane from leaking in the event that propane remained inside the tank. Before he performed any work on the tank, Goins pulled the trigger on his electric impact wrench and an explosion occurred.
Goins claims that highly flammable vapors were allowed to settle in the gravel below the tank due to the defendants failure to correctly perform the blow out procedure. The resulting explosion caused Goins to suffer burns to the legs, feet, arms, face, throat, and lungs which required medical care including skin grafts. Goins now brings this case for compensatory and punitive damages.
II. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
III. Analysis
In order to assert a claim of negligence under Tennessee law, the plaintiff must prove the following elements: "(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal, causation." Staples v. CBL Assoc., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). The defendants assert that Goins has failed to show the elements of duty, beach of duty, and proximate cause. The defendants' arguments will be addressed in turn.
A. Independent Contractor, Duty of Care
The defendants assert that the Goins' claim must fail because no duty of care is owed to an independent contractor. To the contrary, the Tennessee courts have explained "[i]t is well-settled that an owner generally owes an independent contractor hired to perform work on the premises a duty to provide a reasonably safe place in which to work." Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996). Specifically, the owner has the "responsibility of either removing, or warning the independent contractor of, any hidden or latent dangers on the property." Id. The defendants' argument stems from the exception to this general rule. The Tennessee Supreme Court has explained:
[A]n exception to the general rule is recognized where the risks arise from, or are intimately connected with, defects of the premises or of machinery or appliances located thereon which the contractor has undertaken to repair. As to contracts for such repair work, it is reasoned that the contract is sufficient in itself to impart notice of a defect, the extent of which the repairman must discover for himself. This is merely to say one assumes the risk of a known danger or of an undertaking which is inherently dangerous.Id. at 76 — 77, citing Shell Oil Co. v. Blanks, 330 S.W.2d 569, 571 (Tenn.Ct.App. 1959).
Econ's argument fails because Goins was not hired to make a repair on the tank. Instead, Goins was hired to alter the configuration of pipes leading into the tank. Although this assignment indicates that alterations were required for the tank to be used in the manner desired by Econ, it did not necessarily create the same awareness of potentially dangerous condition that would be evident from a repair order. Notably, the Blair court reasoned that "the policy of placing the risk of incurring physical harm during a repair job on a contractor holding himself or herself out as an expert in that work, as opposed to the lay premises owner, is not unjustified, at least as long as the owner does not willfully or intentionally harm the contractor." Id. at 78. In this case, Econ was not a lay premises owner unfamiliar with the handling of propane gas. Furthermore, the parties agree that Goins was assured at the time he accepted the job that the propane tank in question would be empty and the potentially dangerous vapors burned off. The fact that the defendant acted as an independent contractor does not disturb the traditional duty associated with premises liability in this case.
B. Breach of Duty
In addition to contending that no duty was owed to Goins, the defendants also argue that the plaintiff has not shown that any duty was breached. Specifically, the defendants state that Goins has failed to demonstrate that the burn off procedure was incorrectly performed.
Goins contends that before any work was performed on the tank, he activated his electric impact wrench and propane vapors hovering at ground level under the tank exploded causing him serious injury. Specifically, Goins claims to have been told that the tank had been "burnt off all weekend." [Court File No. 68, Goins deposition p. 68]. Goins also submits the testimony of Jason Dulaney who states that he saw a flame burning on a Thursday or Friday evening when driving by the Econ facility, however, on his return trip noticed that the flame was out. [Court File No. 32, Dulaney deposition at 21]. In their pleadings, the defendants do not suggest that some substance other than propane vapors exploded, nor do they suggest propane vapors exist outside of the tank under normal conditions or in the absence of an improper blow out procedure.
A premises owner has the "responsibility of either removing, or warning the independent contractor of, any hidden or latent dangers on the property." Blair, 924 S.W.2d at 76. This duty extends to "latent or hidden conditions on the premises of which one was aware or should have been aware through the exercise of reasonable diligence." Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998). An issue remains for the jury regarding whether the defendants knew about the presence of propane vapors or could have discovered it with reasonable diligence, and if the plaintiff was warned about the danger. Whether the defendants breached this duty, as well as the issue of the plaintiff's comparative fault, if any, remain questions of fact for the jury.
C. Proximate Cause
Finally, the defendants claim that Goins has failed to show that the defendants' alleged negligence was the proximate cause of the explosion that injured the plaintiff. The Tennessee Supreme Court has held that "[a]n injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury." Doe v. Linder Const. Co., Inc., 845 S.W.2d 173, 181 (Tenn. 1992) (citations omitted). Turning to the question of intervening causes, the Doe court further explained:
The test of liability under the law of intervening cause requires a person to anticipate or foresee what usually will happen. It does not require him to anticipate and provide against what is unusual or unlikely to happen, or that which is remotely possible, but whether it was probable according to the usual experiences of persons.Id. at 183 (citation omitted). "Ordinarily, the proximate cause of an injury is for the jury, but, where the facts are not controverted, the question of proximate or intervening cause is for the trial court." Id. at 183 (citations omitted).
In this case, the Court has found that a genuine issue of fact remains regarding whether the defendants' duty to Goins was breached. This is not a situation where the facts are not controverted. Because an explosion is the type of harm generally associated with the presence of propane vapors, the Court finds that a question remains for the jury regarding whether the defendants' alleged negligence was the proximate cause of Goins's injuries. The defendants argue that the use of the electric impact wrench was an intervening cause cutting off any liability based on the defendant's alleged negligence, this too is a question for the jury.
IV. Conclusion
For the reasons stated above, the defendants' motion for summary judgment [Court File No. 19] is DENIED. The parties shall prepare for trial.
SO ORDERED.