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Heritage Operating, L.P. v. Mauck

Court of Appeals of Indiana

June 23, 2015

Heritage Operating, L.P. d/b/a Empire Gas, Appellant-Defendant,
Lois A. Mauck and Ralph Thomas, Appellees-Plaintiffs

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[Copyrighted Material Omitted]

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Appeal from the Washington Superior Court. The Honorable Frank Newkirk, Jr., Judge. Cause No. 88D01-1304-CT-236.

ATTORNEYS FOR APPELLANT: Richard T. Mullineaux, Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, Indiana; Thomas H. Davis, Stinson Leonard Street, LLP, Kansas City, Missouri.

ATTORNEYS FOR APPELLEES: Matthew J. Schad, George A. Budd, Schad & Schad, P.C., New Albany, Indiana.

Riley, Judge. Vaidik, C. J. concurs in result without separate opinion. Baker, J. concurs in part and dissents in part with separate opinion.


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Riley, Judge


[¶1] Appellant-Defendant, Heritage Operating, L.P. d/b/a Empire Gas (Empire Gas), appeals the trial court's denial of summary judgment in favor of Appellees-Plaintiffs, Lois A. Mauck (Mauck) and Ralph D. Thomas (Thomas) (collectively, Tenants).

[¶2] We affirm in part, reverse in part, and remand for further proceedings.


[¶3] Empire Gas raises three issues on appeal, which we consolidate and restate as the following single issue: Whether Empire Gas is entitled to judgment as a matter of law on the Tenants' product liability claim.


[¶4] Edward E. Eiler and Ronda K. Eiler (the Eilers) are the owners of the real property located at 6609 East Hurst Road in Pekin, Washington County, Indiana (the Property). A mobile home was situated on the Property, which the Eilers rented to Jesse Middleton (Middleton) from approximately

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the summer of 2010 until Middleton passed away in July of 2011. On October 14, 2010, Middleton entered into a Propane Supply Agreement with Empire Gas. At that time, Empire Gas delivered 250 gallons of propane to the Property and performed a safety inspection to check that there were no propane leaks and that the furnace appeared to be operating normally. As part of the safety check, the service technician, David Jenkins (Technician Jenkins), demonstrated to Middleton how to turn off the gas in the event of an emergency, performed an odor test, and provided Middleton with a packet of safety information. Throughout the following winter months, the furnace kept the mobile home " [w]arm as toast" and functioned without incident. (Appellant's App. p. 75).

[¶5] When Middleton passed away in July of 2011, the propane tank was 47% full. On July 11, 2011, Empire Gas refunded the cost of the unused propane to Middleton's daughter, thereby resuming ownership of the propane left in the tank. Empire Gas also placed a lock on the POL valve--which controls the release of gas from the propane tank--in order to prevent any unauthorized hookups or pilferage. A red tag on the POL lock cautioned any reader as to the danger of propane and prohibited unauthorized individuals from tampering with or removing the lock.

[¶6] In the spring of 2011, Thomas was released from prison, and he subsequently moved in with his father, Benny Thomas (Benny). Soon thereafter, Thomas began dating a co-worker, Mauck, and a few months later, they decided to move in together. In mid-October of 2011, Thomas read a newspaper advertisement announcing that the Property was available for lease. He contacted the Eilers and, after inspecting the mobile home, agreed to rent the Property for $400 per month. During Thomas' initial visit to the Property, Mr. Eiler showed him the propane tank and indicated that the gas service provider, Empire Gas, had installed a lock on the tank and would need to be contacted to hook up the gas line. It is undisputed that neither the Eilers nor the Tenants ever contacted Empire Gas to remove the lock and initiate service, inspect the tank, or pay for propane.

[¶7] On the morning of October 23, 2011, the Tenants returned home from a weekend trip to visit Mauck's son. Up until that point, the Tenants had relied on an electric heater, but the cooling weather prompted Mauck to ask Thomas about using the furnace. That afternoon, Thomas went outside and discovered that the lock had been removed from the propane tank, that the gas line had been connected, and that the valve and been turned on. As such, he opened the gas valve inside the mobile home and, with Mauck's assistance, attempted to light the pilot on the furnace. Their attempt was unsuccessful, so Thomas drove over to Benny's house and brought him back to help. After fifteen to twenty minutes of holding the pilot switch, Thomas and Benny finally succeeded in igniting the pilot light. During that time, the Tenants noticed " just a little" odor of gas but did not smell anything once the furnace was operating. (Appellant's App. pp. 61, 131).

[¶8] By 4:00 p.m., the furnace had been running for about three hours. Benny and the Tenants were in the living room when Mauck walked over to the counter to retrieve her pack of cigarettes. As soon as she lit one, the trailer exploded. Thomas shoved Mauck out the front door and helped extinguish the flames engulfing her body. Moments later, Benny--who had been hurled out of his wheelchair--came crawling out of the trailer. Thomas summoned for help, and emergency personnel responded. Mauck was air-lifted to a hospital

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in Louisville, Kentucky, and Thomas and Benny were transported by ambulance. Mauck was hospitalized for six weeks, during which time she received skin grafts on her arms, hands, and neck to treat her third degree burns. Thomas sustained severe burns on his hands. Empire Gas investigated the scene and concluded that the lock on the POL valve had been tampered with. Additionally, the ...

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