Page 17 - nov-dec 2019

TRIAL COURT DECISION

Ultimately, the trial court issued its ruling granting summary judgment to our client and the re-
maining suppliers The court provided two rationale for its ruling

No duty to warn under the bulk supplier doctrine

In its ruling, the court relied heavily upon Polimeni v Minolta Corp , 227 A D 2d 64 (3rd Dept
1997), and other cases cited in the Polimeni decision The Polimeni court included this formulation of the
bulk supplier doctrine:

Thus, where a product, such as a gas or liquid, is sold in bulk with the contemplation that
such will be repackaged and resold by the manufacturer’s distributee, the manufacturer will
have satisfied its duty to act reasonably if it adequately warns the distributee of the risks and
dangers associated with the use of its product (see, e g , Donahue v Phillips Petroleum Co ,
866 F 2d 1008; Manning v Ashland Oil Co , 721 F 2d 192; Groll v Shell Oil Co , 148 Cal App 3d
444; Jones v Hittle Serv , 219 Kan 627)

The bulk supplier doctrine is premised upon the theory that the immediate distributee is in
a better position to warn the ultimate consumer of the dangers associated with the finished
product and, further, that to require the bulk manufacturer to issue warnings through the
entire chain of distribution would be too onerous a burden

Polimeni, 227 A D 2d at 66 The court rejected plaintiffs’ argument that the doctrine required the man-
ufacturer to establish that it is unduly burdensome for it to provide warnings directly to end users Ac-
cording to the court, the dispositive issue on the bulk supplier defense was whether the warnings each
defendant provided to the retailer were adequate

Even though the court acknowledged that the adequacy of warnings is a question of fact in
all but the most unusual of circumstances, the court held that all the midstream wholesalers in the case
were entitled to judgment under the doctrine. The court singled out five specific items establishing
those defendants’ entitlement to judgment:

1 General provisions of sale: supply contracts with the retailer included warnings regarding
odor fade and included an acknowledgment by the retailer that it was familiar with the proper-
ties of odorized propane and the safe use and distribution of propane;
2 Material Safety Data Sheets: Material data safety sheets were included in all annual mailings
to the retailer;
3 Technical information bulletins coupled with consumer oriented materials: Materials provid-
ed to the retailer included technical service bulletins and consumer information materials from
NPGA, Phillips Petroleum, and PERC, including “How’s Your Nose?,” “If You Fight It, Don’t Light It,”
“Important Information on Propane Safety,” “Propane Safety,” and others;
4 Warnings on invoices: The retailer had contracted with Propane Resources, LLC, to help
develop a warning/safety program, including warnings that the retailer included on the reverse
side of customer invoices In addition, warnings were also provided to customers on service
tickets; and

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17 Alabama Propane Gas Association | November / December 2019