LP Gas, May 2017

Marketers actions during customer service work can make break a case I n the case of Gabriel et al v Johnstons LP Gas v DeMarco et al the New York Court of Appeals in its 2016 opinion addressed two appeals of denials of summary judgment by a propane marketer and an employer that resulted in two different outcomes This case demonstrates how the law can be a shield for some parties and a heavy burden for others based on the same fact pattern The case involves a propane explosion at the living quarters of undocumented workers at a farm in Oswego County New York The injured plaintiffs sued the propane company Johnstons LP Gas alleging negligence in the distribution of gas to their living quarters In turn Johnstons sued the corporate owner of the farm and the owners individually the DeMarco defendants Johnstons and the DeMarco defendants sought summary judgment at the trial level Johnstons sued the DeMarco thirdparty defendants for contribution and indemnity for any liability incurred from the plaintiffs claims Legally Johnstons had the burden of proof against the DeMarco defendants that they were somehow responsible for the injuries to the plaintiffs The De Marco defendants sought to have this third party claim against it dismissed as it provided workers compensation insurance to the injured plaintiffs as their employer The trial court denied this motion On appeal the court found that the De Marco defendants were immune from suit unless Johnstons could show that the injuries suffered by the plaintiffs were classified as a grave injury under COLUMNIST JOHN V McCOY New York workers compensation law Gabriels injuries were alleged to be a permanent and severe facial disfigurement The standard for this to be a grave injury is A disfigurement is severe if a reasonable person viewing the plaintiffs face in its altered state would regard the condition as abhorrently distressing highly objectionable shocking or extremely unsightly In finding that a disfigurement is severe the plaintiffs injury must greatly alter the appearance from its appearance before and after the accident Here DeMarco presented photos of the plaintiffs face before and after the accident that the court found met its burden It found that the photos did not present a grave injury as a matter of law and granted its dismissal from the case As for the marketer The court was not convinced that Johnstons LP Gas had met its burden to be dismissed from the case It did however dismiss the claim that gas supplied to the plaintiffs was not properly odorized Its analysis of the remaining claims against the marketer began with a discussion of New York common law with regard to the duties of a gas company The court stated that a gas company must use reasonable care in the handling and distribution of gas Because of its dangerous and explosive character and its tendency to escape a gas company has the duty to use that degree of caution which is reasonably necessary to prevent the escape or explosion of gas from its pipe or equipment This statement of the law is found in many cited cases around the country The opinion does not provide facts that help to explain how the gas leak occurred or where it occurred So it is impossible to analyze this boilerplate citation of the law against the case facts In denying the propane marketers summary judgment motion the court noted that the propane marketer had to submit evidence establishing that it had no actual or constructive notice of any defect on the premises that would cause the gas leak that caused the explosion Here the court found that the propane marketer did not provide sufficient evidence that during service calls it provided adequate care to ensure that all aspects of the propane system were operating safely and effectively As a result the court of appeals decided that it was up to a jury to determine whether the propane marketer was negligent and if that negligence caused the plaintiffs injuries This case implicitly suggests that actions taken during service work can make or break a case How the work is documented is critical to answering the question that appears to be left unanswered here Did the propane marketer provide adequate care in its service calls to ensure the gas system was operating safely and effectively As you perform your service work and the documentation of that work ask yourself that same question If you do not like the answer you have work to do LPG John V McCoy is with McCoy Leavitt Laskey LLC and his firm represents industry members nationally He can be reached at 262 522 7007 or jmccoy@ MLLlaw com Legal burdens 60 LPGas May 2017 www LPGasmagazine com