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all but the most unusual of circumstances, the court failure to warn
held that all the midstream wholesalers in the case
were entitled to judgment under the doctrine. The As an alternative basis for its ruling, the trial
court singled out five specific items establishing court also ruled that all the supply defendants were
those defendants’ entitlement to judgment: entitled to judgment because, as a matter of law,
an explosion at the residence was not a foreseeable
1. General provisions of sale: supply contracts consequence of any failure to warn, and therefore
with the retailer included warnings regarding odor the defendants had no duty to warn the end users.
fade and included an acknowledgment by the retail- The plaintiffs’ theory of liability was described by the
er that it was familiar with the properties of odor- court:
ized propane and the safe use and distribution of
propane; Plaintiffs argue their injuries were caused by an
explosion, which was in whole or in part the fore-
2. Material Safety Data Sheets: Material data seeable result of either defendants’ failure to pro-
safety sheets were included in all annual mailings to vide warnings, or if provided, adequate warnings,
the retailer; and that their injuries were proximately caused by
the defendants who transferred either title to the
3. Technical information bulletins coupled with propane or propane to a retailer, who in turn sold
consumer oriented materials: Materials provided to the propane to a landlord, who in turn leased his
the retailer included technical service bulletins and premises to seasonal workers.
consumer information materials from NPGA, Phillips
Petroleum, and PERC, including “How’s Your Nose?,” Calling the opinion instructive, the court
“If You Fight It, Don’t Light It,” “Important Infor- reviewed the decision in Lammle v. Gappa Oil, 2009
mation on Propane Safety,” “Propane Safety,” and WL 67438, in which the court stated that public
others; policy does not impose a duty on propane suppli-
ers with respect to every explosion that may occur
4. Warnings on invoices: The retailer had in the chain of distribution. In Lammle, the court
contracted with Propane Resources, LLC, to help found that there was no connection between a
develop a warning/safety program, including warn- wholesaler’s sale of gas, and an unknown worker’s
ings that the retailer included on the reverse side of decision to open a gas line in a house, and another LEGAL UPDATE
customer invoices. In addition, warnings were also worker’s decision to ignore the smell of propane and
provided to customers on service tickets; and allow gas to continue to flow into the home where it

5. Contractual provisions informing Johnston’s was ignited. By the same token, the court held that
of its obligation to warn its customers: Our client’s an accident is not a reasonably foreseeable conse-
supply contracts included a provision that the retail- quence of a wholesaler’s failure to provide warnings
er agreed to inform its customers of the key proper- and its sale of product to a retailer, who in turns
ties and characteristics of propane and the hazards sells the gas to an unknown property owner, who
and risks associated with the use of propane. provides the gas to unknown end users, who allow
odorized gas to enter through an undetermined
Accident not a foreseeable consequence of a source into a structure where it is ignited.

Editor’s Note: We want to welcome Mark Dreyer to the GPGA Marketer
Magazine as our provider of legal articles. 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 indus-
try, the vehicle rental industry, and product manufacturers. Mark has defend-
ed propane 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. We
look forward to sharing Mark’s articles with our readers in each issue. Mark’s
first article is one that dates back to 2007, but serves as a reminder of the
importance of training and documentation. This article would be good to use
as safety meeting material for both new and seasoned employees.

GPGA PROPANE MARKETER February 2020 PAGE 23