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Kern v. Uregas Service of W. Frankfort

OPINION FILED OCTOBER 29, 1980.

ROY ERNEST KERN ET AL., PLAINTIFFS-APPELLANTS,

v.

UREGAS SERVICE OF WEST FRANKFORT, INC., ET AL., DEFENDANTS-APPELLEES. — (IRA FLOOD & LESTER FOLLOWELL, D/B/A F & F HEATING AND AIR CONDITIONING, CROSS-PLAINTIFF; WILLIAMS ENERGY COMPANY ET AL., CROSS-DEFENDANTS; MONSANTO COMPANY, COUNTERPLAINTIFF AND THIRD-PARTY PLAINTIFF; UREGAS SERVICE OF WEST FRANKFORT, INC., COUNTERDEFENDANT AND COUNTERPLAINTIFF-APPELLANT; WILLIAMS ENERGY COMPANY, INC., THIRD-PARTY DEFENDANT; THE SUBURBAN COMPANIES, COUNTERPLAINTIFF-APPELLANT; IRA FLOOD & LESTER FOLLOWELL, D/B/A F & F HEATING AND AIR CONDITIONING, ET AL., COUNTERDEFENDANTS-APPELLEES; ROY ERNEST KERN, COUNTERDEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Franklin County; the Hon. ALBERT McCALLISTER, Judge, presiding.

MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs and defendants-counterplaintiffs, Uregas Service of West Frankfort and The Suburban Companies, appeal from the judgment of the Circuit Court of Franklin County in an action for personal injuries and property damages brought by Roy Ernest Kern and his wife, Mary Alyce Kern, and for personal injuries brought by the Kerns' son, Roy David Kern, and their nephew, Gary Carter. The action arose out of a propane gas explosion at the Kern home on February 14, 1970, which resulted in personal injuries to the plaintiffs and the complete destruction of the Kern home.

Plaintiffs sought judgment against Uregas Service of West Frankfort (hereinafter Uregas), the gas supplier, which is a wholly owned subsidiary of The Suburban Companies; The Suburban Companies (hereinafter Suburban), the corporate stockholder of Uregas; Monsanto Company (hereinafter Monsanto), the manufacturer of the gas regulator; Lennox Industries (hereinafter Lennox), manufacturer of the propane gas furnace; and Ira Flood & Lester Followell, d/b/a F & F Heating and Air Conditioning (hereinafter F & F), the furnace repairmen. Plaintiffs charged that defendants Uregas and Suburban were negligent in overfilling the gas storage tank at the Kerns' home with a greater quantity of gas than permissible under National Fire Protection Association (NFPA) standards; in filling the tank when the regulator was not under separate cover and properly protected from the elements in violation of NFPA standards; and in failing to inspect the gas tank, gas lines and equipment. Plaintiffs charged F & F with negligence alleging failure to properly inspect the furnace, gas lines, gas tank and equipment; failure to warn plaintiffs of the defective condition, including the gas leak in the gas tank, gas lines and equipment; and failure to repair the defective condition. Negligence was also charged against Lennox for failure to properly manufacture the furnace, failure to inspect the furnace before sale and failure to warn of a defective condition.

Plaintiffs charged strict liability against Monsanto based on defective design of the gas regulator. Strict liability was also charged against Lennox on the basis that the furnace was unreasonably dangerous and defective in that it permitted gas to escape from it.

Uregas and Suburban filed counterclaims for indemnity against F & F, Monsanto and Lennox. Uregas and Suburban also counterclaimed for indemnity against Roy Kern, alleging that he was contributorily negligent in requesting that the gas storage tank be filled when the regulator was not under appropriate cover.

F & F also filed a counterclaim against Monsanto for indemnity should F & F be found guilty; and Monsanto filed a counterclaim against Uregas for indemnity should Monsanto be found guilty.

The jury awarded verdicts in favor of plaintiffs and against defendants Uregas and Suburban only. The jury awarded Roy Kern $5,000, Mary Alyce Kern $55,000, David Kern $65,000, and Gary Carter $10,000. The jury found against all counterplaintiffs and in favor of all counterdefendants on the counterclaims.

The jury's response to eight special interrogatories was consistent with the general verdicts. In answer to the special interrogatories the jury found that Uregas was negligent; that the Lennox furnace was not in an unreasonably dangerous condition when it left the manufacturer in 1962; that Mrs. Kern did not misuse the furnace; that Mr. Kern did not misuse the furnace; that Uregas did not misuse the furnace; that Lennox was not guilty of negligence; that Roy Kern was not contributorily negligent; and that the gas regulator was not defective.

On appeal, plaintiffs Roy Kern and Mary Alyce Kern seek a new trial on the issue of damages only as to defendants Uregas and Suburban. All plaintiffs ask for a new trial on all issues as to Monsanto, Lennox, and F & F. Defendants Uregas and Suburban request, on appeal, a new trial on their counterclaim against Monsanto, Lennox, F & F, and Roy Kern.

The Kerns owned a home in West Frankfort, Illinois, which was heated by a Lennox liquified propane gas furnace. The propane gas was piped into the furnace in the basement from a storage tank located approximately 10 feet from the house. This tank had been purchased subsequent to the acquisition of their property by the Kerns, and the low-pressure regulator that was a part of the original system was transferred to the new tank. Mr. Kern testified that he had nothing to do with the installation of the tank or regulator; and Al Phillips, deputy state fire marshal, stated that shortly after the explosion, Mr. Kern told him that he did not remember who put the regulator on the tank.

Prior to February 14, 1970, Mr. Kern went out to check the propane tank fuel gauge and discovered that the tank contained only 15 percent of its capacity of fuel. He then ordered more gas from Uregas Service of West Frankfort, his supplier of liquified propane gas. On the morning of Friday, February 13, 1970, Carl Lee, a part-time delivery man for Uregas, made the delivery of gas to the Kerns' home upon the instruction of Charles McFarland, his immediate superior and the plant supervisor for Uregas. Lee went to the Kern house between 8 and 8:15 a.m. He proceeded to fill the tank to 90 percent capacity and then recorded that amount on the fill-ticket and attached the fill-ticket to the door of the Kern house. He then left. The evidence introduced at trial indicates that the weather conditions on February 13 and 14, 1970, were substantially the same. The temperature ranged from 30°-32° F., with a mixture of snow and rain.

The evening of February 14, 1970, Mr. and Mrs. Kern were at their home along with their son, Roy David, their daughter, Susan, and her boyfriend. Mrs. Kern's sister and brother-in-law, Rev. and Mrs. Carter, and their children were visiting at the Kern home also. Around 5 or 6 p.m., Mrs. Kern opened the basement door and noticed an unusual odor. She testified that it smelled like something hot. She called her husband who then went down to the basement to check the odor. He saw flames of about 16 or 18 inches in length coming out the front of the furnace in the utility room. He went upstairs, turned the thermostat down and telephoned the furnace repairman, Ira Flood, requesting him to come out and check the furnace. Ira Flood arrived at the Kern house approximately 30 minutes later, and Mr. Kern told him about the flame that he had seen. Flood testified that he did not observe any flame "roll-out" while he was at the house nor did he smell any gas. According to Mr. Flood, he cut off the gas to the furnace at the manual valve just preceding the furnace controls and performed various repairs. He stated that when he turned the gas on again, the gas flame was operating normally. He related that he was unable to determine the cause of the flame roll-out, but that before he left he suggested to Mr. Kern that he should call the gas company to inspect the regulator on the tank.

Around 10 p.m., Mrs. Kern noticed that it was chilly in the house and started to turn up the thermostat. She heard a hissing sound coming from the basement in spite of the fact that the basement door was closed. When she opened the basement door, she smelled gas. She then woke her husband to tell him that she smelled gas. Mr. Kern got out of bed and went down to the basement. He did not turn on the basement light. Mr. Kern smelled the gas and heard the hissing noise which sounded like it was coming from the vicinity of the furnace. He could not see any pilot light or flame in the furnace. He then turned off the gas with the same manual control valve Ira Flood had used earlier, and the hissing stopped.

In the meantime, David Kern ran outside and turned off the gas at the tank. The family could still smell gas but it did not seem too bad. Mr. Kern went upstairs to prepare for work that night, and Mrs. Kern, David, and Gary Carter went into the kitchen. Not more than five or 10 minutes after the gas was cut off, the explosion occurred.

In the explosion, Mr. and Mrs. Kern, David Kern and Gary Carter were injured. The Kerns' house was completely destroyed, together with their household furnishings, a half-ton pickup and a station wagon.

Al Phillips, the deputy Illinois state fire marshal, investigated the explosion scene on February 15, 1970. He testified that the gas regulator was not under a hood and was installed with the vent port pointing to the side. He also stated that the regulator appeared to be "frozen up."

Jeremy Davis, an expert witness who testified for plaintiffs, stated that in his opinion the explosion was caused by gas escaping into the basement. Based on the hissing sound the Kerns testified they had heard, he concluded that the leak was caused by high gas pressure in the lines leading to the appliances and that this high pressure, in turn, was caused by a combination of two things: first, the overfilling of the gas storage tank; and second, the lack of protective cover over the gas regulator attached to the gas storage tank.

The regulator in this case was a low-pressure gas regulator manufactured in 1947 by Fisher Controls, which is now a subsidiary of Monsanto. Mr. Davis testified that the purpose of a low-pressure gas regulator is to reduce the high pressure of the gas as it comes from the storage tank to a lower pressure in the gas lines leading from the regulator to the appliances where the gas is used, known as the "downstream" gas lines. The type of regulator in use at the Kerns' installation consisted of two chambers divided by a diaphragm which moves up and down as it equalizes the pressure. Gas enters the regulator at a high pressure from the tank, forcing back a plunger in the regulator which allows the gas to enter. As gas passes through the upper chamber of the regulator, the lower chamber, filled with air, provides a reference pressure and the gas pressure is equalized with the atmospheric pressure so the gas passes into the lines on the downstream side of the regulator at the lower pressure. The air in the lower chamber enters and exits through a vent port. A pressure relief valve permits gas to escape from the gas line or regulator if the gas pressure becomes excessive. In the regulator used on the Kerns' system, the pressure relief valve was integrated into the regulator and consisted of a spring and small valve. If the gas pressure becomes excessive, the valve is forced open. This permits the gas to pass from the upper chamber to the lower chamber and to be released through the pressure relief valve into the atmosphere. The pressure relief valve and the air intake are vented through a common vent port. Thus, the regulator is constructed to permit gas to escape from the regulator and not to be forced into appliances or furnaces downstream at excess pressure.

The proper functioning of the regulator results in the intake of air at atmospheric pressure as a reference pressure and the escape of excess gas pressure. If the vent port were to become clogged, not only is there no atmospheric pressure for a reference pressure, but the pressure relief valve would not function and the excess pressure cannot escape. The excess pressure would then pass into the air chamber below the diaphragm and, being unable to escape, remain there increasing the reference pressure. The gas pressure would no longer be equalized to atmospheric pressure and instead would travel into the downstream gas lines at a higher than normal pressure.

Mr. Davis testified that he was unsure of where the leak in the gas line was located. From the resulting condition of the furnace, it being pushed inward and not outward by the explosion, he concluded that it was not in the furnace itself but somewhere outside the furnace in the basement. Mr. Davis testified that water could have run into the vent port, which was neither covered nor pointed downward, causing the vent port to freeze over and become clogged due to the freezing weather conditions. He further testified that this could allow excess gas pressure to escape into the downstream gas lines. In Mr. Davis' opinion, the flame roll-out was caused by intermittent increases in gas pressure occasioned by the alternate freezing and thawing of the regulator before it froze over completely. He also testified that the increased pressure in the lines could have blown out the pilot light on the furnace, which would explain why the second time Mr. Kern went into the basement he could see no pilot light or flame in the furnace. He stated that the consequence of the pilot light going out would have been to trigger an automatic shutoff valve on the furnace, known as a thermocouple, which would shut off gas to the burners in the furnace. This could have resulted in gas at a high pressure escaping through a leak in the gas lines and resulting in the hissing noise.

Mr. Davis further testified that in his opinion the overfilling of the gas storage tank also contributed to causing the explosion. He stated that a 90-percent fill on a day when the temperature was 32° F. exceeded the level permitted by the regulations of the Department of Law Enforcement. Mr. Davis concluded that because the tank was overfilled, liquid droplets would be sucked into the pipe leading into the regulator. He stated that as these droplets entered the regulator, they would vaporize and that as they vaporized, they would absorb heat, which would result in a reduction in temperature in the regulator of 1° or 2° . He testified that when the droplets turned to vapor, the liquid would be expanded 250 times.

David Sumner, a mechanical engineer, testified as an expert witness on behalf of Monsanto. He stated that he was employed by Fisher Controls, a subsidiary of Monsanto, in the capacity of chief engineer. He testified that he supervised the engineering department and was engaged in research and development, primarily the design of low-pressure gas regulators. His testimony regarding the consequence of the vent port being clogged with ice was substantially the same as Mr. Davis'. He testified that he had run numerous tests involving the freezing of regulators and that the results were always the same — the regulator loses its reference pressure, creating a hazardous condition. Based on the facts assumed in a hypothetical question asked Mr. Davis, he testified that the explosion was caused by the regulator freezing in an open position. The freezing caused erratic gas pressures in the house, which resulted in the furnace malfunctioning and culminated in gas escaping into the basement. Mr. Sumner did not agree, however, that the overfilling of the tank contributed to the gas explosion. He explained what would happen under both the circumstances of the regulator freezing in a closed position and an open position. In his opinion, if the regulator froze in a closed position, the gas would be shut off and the pilot light would go out, turning off the furnace. When the house eventually cooled off, although there would be a demand for gas, the thermocouple (automatic shutoff valve) in the furnace would prevent any gas from going to the pilot light or burners of the furnace. Sumner stated, however, that if the regulator freezes in an open position, gas is flowing through the regulator and the appliances will continue to operate so long as the demand for gas flow remains the same. If the demand for gas changes, for example, when the furnace goes off, the regulator diaphragm tries to move upwards to close off the gas supply. The diaphragm moving upwards reduces the volume of the upper chamber thus increasing the pressure that the gas is under. This forces the gas into the lower chamber, and if the vent port is clogged due to freezing, the excess pressure does not escape into the atmosphere. The gas remains in the lower chamber at a higher pressure, thereby interfering with the maintenance of the reference pressure at atmospheric pressure.

Mr. Sumner testified that there are two ways to install a regulator to prevent freezing, either with the vent port facing downwards or under a protective hood to prevent water running into the regulator. He testified that Monsanto now imprints instructions on the regulator that it should be installed with the vent port facing down. He also testified that it was common knowledge in the gas industry that regulators should be installed with the vent port facing down.

Mr. Davis testified that the regulator used here was defective in design, due to the fact that it had a single vent port for both the pressure relief valve and the air intake. He testified that if two separate vent ports were installed on the regulator, one for pressure relief and another for the air intake, the danger resulting from the regulator freezing over would be reduced. Mr. Sumner, however, did not agree. It was his opinion that if the regulator was installed so that one vent port would be susceptible to catching water, the other would be no less susceptible. Such construction, he believed, would in fact increase the danger of freezing since twice as much water would run into the regulator. Further, according to Mr. Sumner, regulators sold in Illinois must be approved by Underwriters Laboratories, who require that the pressure relief valve must be an integral part of the regulator and must be vented out a common port with the air intake for the regulator.

John McCreery, a registered professional engineer, specializing in heating and air conditioning, testified as an expert witness for Uregas and Suburban. It was his opinion, based upon a hypothetical question assuming facts substantially the same as in the intant case, that there was a gas leak in the lines between the manual shutoff valve on the furnace and the burners in the furnace. In his opinion, the vent port on the regulator could have frozen and this would subject the furnace to higher than normal gas pressures. He also concluded that the regulator would have frozen in an open position and that it would have been at some time after the furnace repairman left because the furnace was functioning normally at that time. Mr. McCreery was of the opinion that the overfilling of the tank did not contribute to the explosion in any way. He also testified that installing the regulator under a hood would prevent freezing and that while he was not sure that Pamphlet 58 required a regulator to be under a hood, he would absolutely require it.

Plaintiffs introduced into evidence the National Fire Protection Association's Pamphlet 58, Storage and Handling of Liquified Petroleum Gases (1965). This pamphlet was adopted by the Illinois Department of Public Safety, now the Department of Law Enforcement, as part of its regulations for the storage, transportation, sale, and use of liquified petroleum gas. These regulations were promulgated under the authority of section 3 of "An Act to regulate the storage, transportation, sale and use of liquified petroleum gases" (Ill. Rev. Stat. 1969, ch. 104, par. 121). Plaintiffs relied on section 2.8 of Pamphlet 58, Protection of Container Accessories, which was in effect in 1970, as requiring that the regulator be installed under appropriate cover. Section 2.8 states:

"PROTECTION OF CONTAINER ACCESSORIES

(a) Valves, regulating, gauging and other container accessory equipment shall be protected against tampering and physical damage. * * *"

Paragraph 8, page 13, of the State of Illinois Rules and Regulations of the Department of Law Enforcement, also in effect in 1970, provided that:

"No suppliers of liquid petroleum gases shall service any installation not in compliance with the LP gases law, rules and regulations."

Charles McFarland, Uregas' plant manager from 1968 to the date of the explosion, testified that he had filled the Kerns' tank on numerous occasions prior to February 14, 1970. He testified that he had read Pamphlet 58 and was aware that it was good practice to install a regulator under a hood. He further testified that all of Uregas' regulators were under hoods; however, he did not recall at trial whether they required that regulators be placed under a hood. McFarland stated that he did not consider the Kerns' regulator to be ...


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