SHEILA A SKAGGS v. FERRELLGAS, INC.
Case No. 1:21-cv-02406-TWP-MJD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION
December 18, 2023
Document 226
Plaintiff,
v.
FERRELLGAS, INC.,
Defendant.
FERRELLGAS, INC.,
Third Party Plaintiff,
v.
FAURECIA USA HOLDINGS, INC.,
Third Party Defendant.
FAURECIA USA HOLDINGS, INC.,
Counter Claimant,
v.
FERRELLGAS, INC.,
Counter Defendant.
ENTRY ON FERRELLGAS’ MOTION FOR SUMMARY JUDGMENT AGAINST SKAGGS AND SKAGGS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on Defendant Ferrellgas, Inc.‘s (“Ferrellgas“) Motion for Summary Judgment Against Plaintiff (
I. BACKGROUND
The following facts are not necessarily objectively true, but as required by
A. Procedural Background
On August 5, 2021, Skaggs initiated this lawsuit in the Circuit Court of Bartholomew County, Indiana, against Ferrellgas because of injuries she sustained from a liquid propane tank explosion (
Faurecia is an automotive technology supplier, located in Columbus, Indiana (
The liquid propane gas dispensing equipment had a safety feature – the pull away emergency shut off valve – that was designed to shut off the flow of liquid propane gas in the event the hose was pulled away by a forklift (
Along with installing the equipment, Ferrellgas and Faurecia entered into a Dispenser Agreement outlining the terms of the contract. Under the terms of the Dispenser Agreement, Faurecia (as the Reseller) and Ferrellgas (as the Company) agreed to the following:
5. Repairs and Maintenance. Reseller shall take all reasonable precautions to protect the Equipment from damage and decrease in value. Reseller shall routinely inspect the Equipment and cease use of any Equipment that is defective or in substandard condition and shall immediately notify Company thereof. ...
....
8. SAFETY. Company agrees to provide Reseller and Reseller‘s designated employees safety training materials for the proper handling, storage, and transportation of propane, and to make available to Reseller an adequate supply of the Company‘s Propane Safety Plan brochure (form OPR-1171 or its replacement). ... Reseller shall (i) complete all safety training required by Company and ensure all employees of Reseller who handle or sell propane are properly trained before handling propane (all such training shall be documented); (ii) provide each customer or purchaser of propane the Company‘s Propane Safety Plan brochure; (iii) perform all propane-related activities in accordance with NFPA 58 and all
federal, state, and local codes; (iv) warn every customer or purchaser of propane by directing attention to the safety warning in the written warnings given to the customer/purchaser; (v) have on each cylinder sold/exchanged to a customer or purchaser of propane the Company‘s Portable Cylinder Warning Label (form FG4115 or its replacement); and (vi) warn customers or purchasers of propane about the hazards of storing, using, and transporting propane. Reseller specifically covenants to Company that it will not allow anyone to dispense propane who has not been trained to do so safely. ...
(
Ferrellgas provided training to select Faurecia employees in August 2017. Id. at 3. Ruth Means (“Means“) and Keith Scheible (“Scheible“) were then responsible for training people on the safe refueling procedures Ferrellgas taught them. Id. Means and Scheible trained by using the Faurecia forklift training program; this training included a checklist that was reviewed by Ferrellgas prior to distribution. Id. at 5. Faurecia reviewed the checklist with Ferrellgas to ensure their employees would be properly trained before handling propane. Id. at 26. The checklist did not include training on proper storage of the hose since that was never taught by Ferrellgas. Id. at 25. Faurecia also did not provide training on the hose. (
Faurecia employee Anthony Jordan Smith (“Smith“) was trained in 2017, and received a one-time training in propane dispensing and was provided a checklist to review. (
After Smith pulled away, Skaggs drove her forklift up to the same refueling station where the propane leak was occurring. (
Skaggs expert John M. Agosti (“Agosti“) opines that “the excessive length of the propane fill hose contributed to the propane leak that resulted in the ignition of fugitive vapors and caused the injuries sustained to Sheila Skaggs” and “the design and safety warnings on the LP filling station cabinet, provided by and serviced by Ferrel[l]gas [were] questionable.” (
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties
The fact the parties have filed cross-motions for summary judgment does not alter the standard set forth in
III. DISCUSSION
Summary judgment is generally inappropriate in negligence cases. Tibbs v. Huber, 668 N.E.2d 248, 249 (Ind. 1996). Negligence cases are particularly fact-sensitive and are governed by a standard of the objective reasonable person, which is best applied by a jury after hearing all the evidence. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). Nevertheless, a defendant is entitled to summary judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff‘s claim. Id. at 385.
Common law negligence claims require the plaintiff to establish each of the following elements: (1) a duty is owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury to the plaintiff that was proximately caused by the defendant‘s breach. Id. Skaggs contends there is an apparent undisputed duty of reasonable care that was owed to her by Ferrellgas.
A. Skaggs’ Motion for Partial Summary Judgment
To succeed on her negligence claim, Skaggs must demonstrate Ferrellgas owed her a legal duty. Skaggs does not contend that a statutory duty was owed, but rather that a common law duty existed (
The duty of care owed by suppliers of chattel has been well established at common law. Gas companies who participate in the selling and distribution of gas have a duty to “use reasonable care in the distribution of [such] gas” because it is “a dangerous instrumentality.” Palmer & Sons Paving, Inc. v. N. Ind. Pub. Serv. Co., 758 N.E.2d 550, 554 (Ind. Ct. App. 2001). A gas company‘s duty extends to “the public generally, its customers, and third persons who might reasonably be foreseen to be affected by the utility‘s provision of the service.” S.E. Ind. Natural Gas Co. v. Ingram, 617 N.E.2d 943, 951 (Ind. Ct. App. 1993); see also Heritage Operating, L.P. v. Mauck, 37 N.E.3d 514, 522 (Ind. Ct. App. 2015) (noting it is reasonably foreseeable that a person present on the property where a gas tank is located could be injured by any misuse of undetected defect).
The undisputed facts demonstrate that Ferrellgas supplied liquid propane gas to Faurecia and was responsible for the safe installation of the liquid propane equipment. Ferrellgas had complete control over the design and installation of the 1000-pound liquified propane tank, and refueling station, which was equipped with the hose that Skaggs argues contributed to the propane leak. The undisputed facts also demonstrate that Skaggs was an employee of Faurecia and therefore expected to use the propane equipment provided. Thus, as a distributor of gas, the Court finds that Ferrellgas owed Skaggs a general duty to use reasonable care in the installation of liquid propane tank equipment. Whether Ferrellgas owed Skaggs a duty to maintain and repair the liquid propane equipment requires a deeper analysis.
In determining whether a party owes a duty, the court looks to existing relationships. However, “while it is true the trial court must determine if an existing relationship gives rise to a duty, it must also be noted that a factual question may be interwoven with the determination of the
To the extent Ferrellgas argues the Dispenser Agreement with Faurecia supplanted its common law tort duty to Skaggs, it cannot do so. “A person cannot limit his or her tort duty to third parties by contract.” Rhodes, 805 N.E.2d at 385. On one end, the Dispenser Agreement states Faurecia was responsible for inspection and notification of maintenance needs, but on the other end, once notification occurs, Ferrellgas was responsible for repair and maintenance of the equipment (
Ferrellgas contends there was no notification of maintenance needs; but Skaggs contends Ferrellgas was contacted about pull-away incidents two times prior to the incident that injured her. The undisputed evidence supports Skaggs’ contention. The designated evidence supports that Ferrellgas was notified about pull-away incidents prior to the incident with Skaggs (
It is clear from the contract and designated evidence that Ferrellgas owed a duty of care in the installation of the dispensing equipment, and Ferrellgas was responsible for the maintaining,
B. Ferrellgas’ Motion for Summary Judgment
Ferrellgas moves for summary judgment against Skaggs asserting no duty existed, there was no breach of an alleged duty, and Ferrellgas was not the proximate cause of any injuries Skaggs endured. Having already determined a duty existed; the Court will discuss breach and proximate cause in turn.
1. Breach
Ferrellgas asserts summary judgment is appropriate in this matter because there is no genuine dispute as to any breach of duty by Ferrellgas. Generally, whether a party breached its duty is a question of fact. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. Ct. App. 2003). Moreover, “whether a particular act or omission is a breach of duty is generally a question of fact for the jury. It can only be a question of law where the facts are undisputed and only a single inference can be drawn from those facts.” Id.
Courts are hesitant to grant a motion for summary judgment in negligence cases where the designated evidence shows disputed facts, no matter how irrelevant to the harm the evidence may appear. See Briesacher v. Specialized Restoration and Const., Inc., 888 N.E.2d 188, 194 (Ind. Ct. App. 2008). In Briesacher, where an employee injured themselves while laying decking for a roof, after a previously installed rebar came loose, the court found summary judgment for the contractor improper as to breach because the employee‘s designated evidence claimed the contractor failed to use reasonable care in the installation of the rebar. Id.
Here, Ferrellgas designated evidence demonstrating that the length of the hose was code compliant, Ferrellgas properly trained the designated employees pursuant to the Dispenser
2. Proximate Cause
There are also genuine issues of material fact regarding the proximate cause of Skaggs’ injuries and, potentially, the comparative fault of Ferrellgas and Faurecia. In determining whether an act is a proximate cause of an injury, the courts consider “whether the injury was a natural and probable consequence of the negligent act, which in light of the attending circumstances, could have been reasonably foreseeable or anticipated.” Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996). “When determining proximate cause, foreseeability is based on hindsight, and accounts for the circumstances that actually occurred.” Id. If the harm was a natural, probable, and foreseeable consequence of the first negligent act or omission, the original wrongdoer may still be held liable even though independent agencies intervened between his negligence and the ultimate result. Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520 (Ind. Ct. App. 1994). Thus, reasonably foreseeable acts do not break the chain of causation and liability still rests with the original wrongdoer. Id. These types of questions concerning proximate cause particularly lend themselves to a decision by jury. Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1316 (7th Cir. 1983).
Here, there are several disputed facts material to the inquiry of proximate cause and whether there was any superseding cause. Both parties agree Faurecia employee, Smith, pulled away from the liquid propane gas dispensing station with the hose still attached to the forklift, rupturing the fill hose, allowing liquid propane gas to leak from the tank. Though, as in Rhodes, this Court cannot say with certainty the actions of Faurecia, and its employee Smith, were the only dangers contributing to the incident.
Ferrellgas argues several causes of Skaggs’ harm. First, Ferrellgas argues that Faurecia was responsible for training all employees thoroughly on the use of refueling stations and key loops. Second, Ferrellgas argues Faurecia was required to notify Ferrellgas if the hose was unsafe and notify them of any potentially dangerous conditions with the equipment and they did not. Lastly, Ferrellgas argues Smith could have been more attentive, ensuring the hose was
However, other reasonable inferences may be drawn from the evidence designated by Skaggs, which supports that the training provided by Ferrellgas to Faurecia was insufficient, installation of the hose was unsafe, and Ferrellgas was put on notice of the equipment‘s potentially dangerous conditions during the previous two pull-away incidents. Skaggs introduces the affidavit of expert John M. Agosti who opines Ferrellgas took several improper steps when installing and maintaining the liquid propane dispenser equipment. So, while it is undisputed that Smith driving away with the hose attached to the forklift was a factor in causing the propane leak, a reasonable inference can be made that the actions of Smith, Faurecia, and Ferrellgas all contributed to the propane leak that ultimately led to the explosion which harmed Skaggs.
Furthermore, unlike the circumstances in Hassan, the designated evidence here lends itself to multiple inferences regarding foreseeability. See Hassan, 836 N.E.2d at 308-09. Ferrellgas contends the actions by Faurecia employee, Smith, who was improperly trained by Faurecia, were unforeseeable and thus a superseding cause, severing the chain of proximate cause. Based on the evidence designated by Skaggs, Ferrellgas could have foreseen Skaggs being injured from a pull-away incident as they were aware most Faurecia employees were not trained on key loops and two pull-away incidents had happened previously, which they notified Ferrellgas of.
Indiana‘s appellate court has long held that issues of foreseeability, proximate cause, and the existence of negligence are all matters best resolved by the trier of fact. Ferrellgas moves for summary judgment as to both breach and proximate cause. Having thoroughly reviewed the designated evidence as it pertains to Ferrellgas’ motion, the facts do not provide a clear answer as
IV. CONCLUSION
For the reasons discussed above, Ferrellgas’ Motion for Summary Judgment (
SO ORDERED.
Date: 12/18/2023
Hon. Tanya Walton Pratt, Chief Judge
United States District Court
Southern District of Indiana
DISTRIBUTION:
John P. Daly, Jr.
GOLITKO & DALY, P.C.
john@golitkodaly.com
Emily O‘Brien Sery
CRUSER, MITCHELL & GASTON, LLP
esery@cmlawfirm.com
John T. Brooks
BAKER, STERCHI, COWDEN, & RICE
jbrooks@bscr-law.com
Keith A. Gaston
CRUSER MITCHELL NOVITZ SANCHEZ & ZIMET, LLP
kgaston@cmlawfirm.com
Michael C. McMullen
BAKER STERCHI COWDEN & RICE, LLC
mmcmullen@bakersterchi.com
BAKER STERCHI COWDEN & RICE, LLC
penticuff@bscr-law.com
Rachel O. Webster
CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET LLP
rwebster@cmlawfirm.com
James R. Lynch
LYNCH DASKAL EMERY LLP
lynch@lde.law
Tasha Rebecca Roberts
ROBERTS LITAGATION GROUP
troberts@robertslitigation.com