Plaintiff 1 brought this action for damages, alleging that, while in the course of delivering gasoline to an underground storage tank at plaintiffs place of business, defendant’s employe negligently overfilled the tank, causing gasoline to flow under the delivery truck. The truck somehow ignited the gasoline vapor, and the resulting explosion and fire completely consumed the truck and most of plaintiffs adjacent building. At the close of plaintiffs case, and again when all the evidence was in, defendant moved for a directed verdict on the ground that plaintiff had failed to prove negligence. Defendant also moved to have each specific allegation of negligence stricken for the same reason. Four specific allegations were finally submitted to the jury, which found defendant 80 percent at fault. Defendant’s first five assignments of error concern the denial of the motions.
Our review of the errors claimed requires us to examine the facts in the light most favorable to plaintiff to determine whether there is sufficient evidence from which the jury could find that defendant was more probably than not negligent and that its negligence was a substantial factor contributing to the explosion and fire.
James v. Carnation Co.,
The evidence showed that the defendant parked the truck with its front end about two feet away from the rear wall of the building. On one side, the fill pipe to the underground tank was three or four feet away; at about the same distance, on the other side, was a vent pipe. Defendant began to fill the tank by pumping gasoline from the truck at the rate of about 140 gallons per minute. The driver stood about 20 feet away from the pump controls in order to observe the vent pipe *4 which, on at least one other occasion, had discharged gasoline on the ground during the filling operation. After 1050 gallons had been pumped, the driver had to change to another tank on the truck. After changing to that tank, he resumed his position about 20 feet away from the controls.
When about 300 more gallons had been pumped, things started to go wrong. The engine on the truck began to race “very loud and fast.” The engine speed governed the rate at which the gasoline was pumped and, as a result of the speedup, the truck began pumping about 300 gallons per minute. The engine began to race, because it was taking in gasoline vapors through the air intake. The source of those vapors is not certain, but there is evidence from which the jury could conclude that gasoline flowed from the vent pipe and spread beneath the truck.
As the driver ran to turn off the pump, he saw gasoline spewing from the fill pipe. Ten to 15 seconds elapsed before the vapors ignited. He managed to shut off the pump, but defendant’s expert testified that, in his opinion, a “sizable spill” had already occurred.
The truck was the source of the spark that ignited the gasoline vapors. There was evidence that the truck could have been parked elsewhere during the fill operation, that the driver had parked the truck elsewhere during previous deliveries and that, had he done so on this particular day, the accident “very likely” would not have happened. He parked where he did so that he could pump the tanks on the truck dry rather than retaining 40 to 50 gallons. There was also evidence that he did not know how much gasoline the tank would hold and that automatic shutoff devices are not available for the size of hose on the truck.
That is ample evidence from which a jury could conclude that defendant’s driver negligently overfilled the tank and in doing so spilled gasoline around the delivery truck, which was parked too close to the fill pipe. The jury could also conclude that defendant’s driver was negligent in standing 20 feet away from the pump controls, thereby rendering himself unable to prevent or minimize the amount of gasoline spillage.
Defendant insists that negligence in this case can
*5
only be shown by expert testimony. Plaintiff did not produce an expert to testify that defendant was negligent. Expert testimony is an indispensable part of a
prima facie
negligence case only if the average juror could not be expected to understand the issues involved.
Hall v. State,
Defendant next contends that a
res ipsa loquitur
instruction should not have been given and that the instruction given was erroneous in any event.
Res ipsa loquitur
applies when there is evidence from which the jury could reasonably find that it is more probable than not that an accident would not normally have occurred in the absence of negligence and that the negligence was probably that of defendant.
See Watzig v. Tobin,
Defendant argues that plaintiff failed to produce any evidence that this fire was the type of accident that does not ordinarily occur in the absence of negligence, because no expert so testified. We do not agree that statements by an
*6
expert to the effect that accidents such as this ordinarily do not occur without negligence is essential to plaintiffs case. We think that common sense and ordinary experience can fairly lead to the conclusion that an accident of this kind occurs because someone was negligent. On the evidence here, moreover, the jury could find that the negligence involved was defendant’s.
See St. Paul Fire & Mar. Ins. v. Watkins,
Defendant claims that the
res ipsa
instruction given was erroneous, because it was not
clearly
limited to the specific allegations of negligence pled, as it must be when a general allegation of negligence is not pled.
Brannon v. Wood, supra,
Defendant contends that the trial court erred in striking the allegation in its answer and counterclaim that *7 plaintiff was negligent in ordering a quantity of fuel that its tank would not hold. Uncontradicted testimony showed that plaintiff simply requested defendant to fill the tank and that neither plaintiff nor defendant knew how much fuel it would take to do so. There is no evidence that plaintiff ordered any particular quantity of fuel, and it was not error to strike the allegation.
Defendant assigns error to the trial court’s submission to the jury of plaintiffs claim for consequential damages. That claim (in paragraph X of the complaint) was for “loss of time of supervisory and regular employes utilized in the necessary cleanup, obtaining temporary office quarters, retaining security guards, locating and obtaining replacement tools, equipment, fixtures and miscellaneous.”
4
Defendant argues that “loss of time” is not compensable in the absence of proof that plaintiff suffered lost earnings as a result of the lost time, citing
Jenks v. Larimer,
As a general rule, recovery for tortious injury is intended to restore the injured party to the position it enjoyed before the injury or to compensate the injured party for its loss.
See, e.g., United Engine Parts v. Reid,
However, a negligent defendant is liable for reasonably foreseeable consequential damages attributable to its negligence, and it is generally true that a defendant cannot escape that liability because the injured party is made whole by its own efforts or the efforts of others. One example of this principle is the collateral source rule.
See, e.g., Reinan v. Pacific Motor Trucking Co.,
The claim for “lost time” in this case brings the tension between these general rules into focus. On one hand, defendant negligently damaged plaintiffs property, thereby necessitating a cleanup operation. That operation entailed an expenditure for which defendant ordinarily would be liable, regardless of whether plaintiff was restored to its pre-injury position by its own efforts or not. On the other hand, plaintiff offered no evidence to show that it suffered increased costs, lost production time or lost earnings as a result of defendant’s negligence. In other words, plaintiff failed to show that its economic position was altered in any way by defendant’s negligence, except for the evidence that it “lost the time” of its employes.
Some cases have allowed a business to recover the value of employes’ salaries when their services are lost due to a defendant’s negligence or breach of contract.
See Convoy Co. v. Sperry Rand Corp.,
672 F2d 781, 785-86 (9th Cir 1982);
Clements Auto Company v. Service Bureau Corporation,
We do not believe that “lost time” is necessarily equivalent to “lost benefits.” Accordingly, we hold that, when a plaintiff claims damages for the lost time of its employes as a result of a defendant’s negligence, the plaintiff must come forward with evidence of increased cost, lost earnings, lost production time or other lost benefits and cannot rely solely on proof of out-of-pocket expenses.
See, generally, Welch v. U.S. Bancorp,
Affirmed except as to damages under paragraph X of the complaint; reversed; and remanded for a new trial limited to the damages claimed under paragraph X.
Notes
“Plaintiff’ means McKee Electric Company, Inc.
Brannon v. Wood,
“However, you may find that the defendant was at fault if you find all the four elements are proven — excuse me, all of the following four elements are proven.
“First, that the fire damage was caused by igniting spilled gasoline. Secondly, at the time of the incident, the delivery truck and discharge of gasoline was under the control or management of the defendant.
“Third, the plaintiffs’ contribution to the incident did not preclude negligence on the part of the defendant as alleged in plaintiffs’ Complaint [sic],
“Fourth, in the normal course of events the incident would not have occurred unless the defendant was at fault.” (Emphasis supplied.)
Defendant contends that this allegation is not broad enough to sustain plaintiffs’ claims for the actual costs of the office quarters, security guards, replacement tools and miscellaneous items, but is limited to the “time lost” in obtaining those things. We find no merit in this contention, particularly because defendant did not object to the evidence introduced on each of those claims. See ORCP 12.