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Warnings and the Bulk Supplier Defense
Mark E. Dreye
On October 6, 2005, an explosion at a farm in
Oswego County, New York, injured nine people who
were living in a two-story concrete bunkhouse. In
a subsequent lawsuit, they alleged that the explo-
sion occurred when one of the plaintiffs attempted
to light a propane fueled stove. Propane had been
delivered to the farm approximately two weeks
earlier by a local retailer. The plaintiffs suffered very
serious injuries including burns, broken bones. and
internal injuries. One of the plaintiffs was rendered
a paraplegic.
Aftermath of the explosion
A thorough origin and cause investigation could
not be completed for a number of reasons. Public
officials who investigated shortly after the accident
were not able to identify the source of any leak in-
side the residence, nor were they able to determine
whether any of the gas appliances malfunctioned. It
was also impossible to trace individual deliveries of
gas to the residence because the retailer’s records
did not identify which of the three service tanks at
the residence received each delivery or the quan-
tity of gas delivered to any particular tank. No gas
samples were drawn shortly after the accident for
odorization testing. Finally, the amount of destruc-
tion caused by the explosion made it impracticable
for anyone to test any remaining gas lines for leaks,
much less attempt to recreate the piping configura-
tion.
Lawsuits against property owner, retailer, propane
GPGA PROPANE MARKETER February 2020
suppliers, terminals, and equipment manufac-
turers
The nine injured workers filed several lawsuits
against different groups of defendants, includ-
ing one suit against all suppliers in the chain of
propane distribution, which included various
terminals, upstream suppliers, and midstream
wholesalers. Our clients included two upstream
suppliers.
Plaintiffs’ central themes: odorization; warnings
regarding gas detectors; warnings regarding the
odor of propane and what do to if you smell gas;
Spanish language warning materials
The allegations against the propane supply
defendants focused on four separate themes.
First, plaintiffs alleged that the gas sold to the
local retailer and then to the property owner
was inadequately odorized. Second, the sup-
pliers were accused of failing to ensure that the
retailer required the installation of a propane
gas detector prior to delivering propane to the LEGAL UPDATE
property owner and of failing to provide the
claimants with adequate warnings regarding
the smell of propane, including warnings about
steps to take if the odor of propane was present.
In a lengthy complaint, the plaintiffs included
twenty separate allegations of alleged failures to
warn or inadequate warnings. Third, plaintiffs
complained that they were not warned about or
given instructions for the use of gas detectors.
Finally, plaintiffs also alleged that the suppliers
were liable for failing to provide any warning
materials that were written in Spanish. Plaintiffs
ultimately voluntarily abandoned their odor-
ization claims after discovery revealed that bills
of lading from upstream suppliers all indicated
that the gas sold to the retailer was odorized,
and after several of the plaintiffs testified both
in depositions and by affidavit that they, in fact,
had smelled gas prior to the accident.
Suppliers’ motions for summary judgment: bulk
supplier doctrine and no duty based on absence
of foreseeability
Our client had supplied the local retailer with
the majority of its gas during the one year pe-
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