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5 Contractual provisions informing Johnston’s of its obligation to warn its customers: Our client’s
supply contracts included a provision that the retailer agreed to inform its customers of the key
properties and characteristics of propane and the hazards and risks associated with the use of
propane

Accident not a foreseeable consequence of a failure to warn

As an alternative basis for its ruling, the trial court also ruled that all the supply defendants were
entitled to judgment because, as a matter of law, an explosion at the residence was not a foreseeable
consequence of any failure to warn, and therefore the defendants had no duty to warn the end users
The plaintiffs’ theory of liability was described by the court:

Plaintiffs argue their injuries were caused by an explosion, which was in whole or in part the
foreseeable result of either defendants’ failure to provide warnings, or if provided, ade-
quate warnings, and that their injuries were proximately caused by the defendants who
transferred either title to the propane or propane to a retailer, who in turn sold the propane
to a landlord, who in turn leased his premises to seasonal workers

Calling the opinion instructive, the court reviewed the decision in Lammle v Gappa Oil, 2009 WL
67438, in which the court stated that public policy does not impose a duty on propane suppliers with
respect to every explosion that may occur
in the chain of distribution In Lammle, the
court found that there was no connection
between a wholesaler’s sale of gas, and an
unknown worker’s decision to open a gas
line in a house, and another worker’s de-
cision to ignore the smell of propane and
allow gas to continue to flow into the home
where it was ignited By the same token,
the court held that an accident is not a
reasonably foreseeable consequence of
a wholesaler’s failure to provide warnings
and its sale of product to a retailer, who in
turns sells the gas to an unknown property
owner, who provides the gas to unknown
end users, who allow odorized gas to enter
through an undetermined source into a
structure where it is ignited.■
Mark is a partner in the law firm of Conner & Winters,
LLP in Tulsa, OK. Mark has litigated cases since 1988.
His practice includes representing different segments
of the gas fuels industry, the vehicle rental industry,
and product manufacturers. Mark has defended pro-
pane retailers, wholesalers, and tank manufacturers in
personal injury, wrongful death, and property damage
claims in twenty states, as well as provided counsel
regarding regulatory compliance matters. He has also
represented gas utilities in personal injury and property
damage claims. You can contact Mike at:
mdreyer@cwlaw.com

18 Alabama Propane Gas Association | November / December 2019