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District Court of Appeal, Second District, Division 3, California.

SIGNORELLI et ux. v. POTTER et al.*

Civ. 19918.

Decided: May 07, 1954

Conron, Heard & James, Bakersfield, for appellants. Edward J. Trevey, Santa Barbara, for respondents.

Alfred Signorelli and wife recovered judgment in the sum of $5,240.80 against James L. Potter and Don Munoz as damages for the partial destruction of their residence and contents by fire November 14, 1949, which the court found was due to the negligence of the defendants, appellants herein. The fire occurred while defendant Munoz, an employee of Potter, was filling a storage tank with Butane gas. Defendants denied negligence and pleaded that the fire was caused by the contributory negligence of the plaintiffs in that they maintained the Butane gas tank upon their premises in dangerously close proximity to a hot water heater containing an automatic pilot.

The tank was of 50 gallons capacity. It was located just outside the house and had been there since it was installed in 1942. Just inside the house were a water heater and a stove which used Butane. The wall between was of 1 inch by 12 inch board and batten construction. A pipe connected the tank through a hole in the wall with the water heater and the stove. It is not questioned that the tank was maintained in violation of Safety Order 4935 of the Division of Industrial Safety, Title 8, Administrative Code, in that the order forbids the maintenance of a tank of that capacity within 10 feet of such a building. Defendant Potter acquired the servicing business in January 1946 and was familiar with the location of the tank and stove, knew that the tank was unlawfully maintained, but he testified that he did not know of the location of the heater. Several of Potter's employees, including Munoz, testified that they had warned the Signorellis of the dangerous location of the tank and requested that it be moved. They nevertheless continued to service the tank. Munoz had serviced it for more than a year. Before that another employee, Stickler, had serviced the tank; upon one occasion he had lighted the water heater at Mrs. Signorelli's request, and he advised her then to have the tank moved. Potter as no time refused to service the tank. The tank required refilling about every 5 weeks and was filled through a hose from a tank truck by means of a pressure pump. The hose would be connected to the tank, a valve opened, the pump would be started and then a gauge would be turned on and a valve on the tank would be opened to admit gas into the tank. There is always some Butane between the valve on the hose and the valve on the tank that escapes when the hose is uncoupled. On the day of the accident Munoz filled the tank, closed the valves and was unscrewing the filler hose from the house tank when he saw flames leap out from around the hose. Almost immediately the entire corner of the house was on fire. There was too much flame and too much heat to enable Munoz to completely uncouple his hose from the tank. He got a fire extinguisher from his truck but it was defective and he could not operate it. The house and contents were almost completely destroyed.

The court found that plaintiffs as well as defendants were negligent. The negligence of plaintiffs consisted of their maintaining the tank in violation of said safety order. Defendants were likewise guilty of negligence since it was a violation of the order to fill a tank so located; but the court also found ‘* * * the defendant Don Munoz negligently permitted a quanity of Butane gas to escape, and that such escaping Butane gas ignited and exploded, and that as a direct and proximate result of such fire the contents of said house were damaged and destroyed.’ The court found that the negligence of the plaintiffs was not a proximate cause of the ignition and explosion.

The sole question in the case is whether, upon the evidence, it was established as a matter of law that the maintenance of the tank by plaintiffs was a proximate contributing cause of the accident.

We are of the opinion that there was evidence to sustain the finding that the negligence of the defendants was the sole, proximate cause of the fire. Munoz testified that he observed the flash of flame come out from the hose and coupling; also that he saw flame coming from between the boards of the house. He smelled Butane when he had the 10 per cent gauge and the valve open but continued filling the tank. The gas, being highly inflammable, would have ignited if it had reached the pilot of the water heater in any considerable quantity. For over 7 years the tank had been serviced in the same manner without accident.

We may assume, as defendants contend, that the accident would not have occurred if the tank had been 10 or more feet from the house. But the fact that it was not so located does not mean that violation of the safety order was necessarily a concurring cause of the accident, in a legal sense. It would have been a concurring cause if there had been no superseding cause, that is to say, a causal event so unusual and exceptional as not to have been reasonably foreseeable. The finding that the position of the tank was not a proximate cause of the accident means that aside from violation of the safety order, plaintiffs were not negligent. Had the court found them to have been negligent for the reason that they should have anticipated an explosion, the judgment would doubtless have been in favor of defendants. Therefore, the finding means that the explosion was caused by some unusual and exceptional occurrence not reasonably to be anticipated. See, discussion in Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d 119. Mr. Prosser, in his work on Torts says, Sec. 50, p. 374: ‘In any case where there might be reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of the defendant's conduct with respect to it, or the normal character of an intervening force, the question is for the jury, subject of course to suitable instructions from the court as to the legal conclusion to be drawn as the issue is determined either way. By far the greater number of the cases which have arisen have been of this description; and to this extent it may properly be said that ‘proximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.’' Section 433, comment f, Restatement, Torts, phrases the rule as follows: ‘It is impossible to state any definite rules by which it can be determined that a particular result of the actor's negligent conduct is so highly extraordinary as to prevent the conduct from being a substantial factor in bringing it about. This is a matter for the judgment of the court and jury formulated after the event and, therefore, with the knowledge of the effect that was produced.’

The question is whether reasonable minds could differ as to whether an explosion was likely to occur while plaintiffs' tank was being serviced. Upon the one hand the very fact that the safety order specifies a distance of 10 feet between tank and building was a warning which plaintiffs should have heeded. And certainly the explosive nature of Butane is generally known. Upon the other hand the tank had been serviced regularly over a period of years without accident. The small amount of gas that normally escaped had not caused any explosion and apparently had created no serious risk. It was reasonable to assume that defendants would not permit the escape of gas in excessive and dangerous quantities. After weighing the probabilities the court found that defendants did allow a large quantity of gas to escape. That was a reasonable deduction from the fact that there was an explosion and a burning of gas so extensive that the southeast corner of the building was immediately ablaze. In fact, the most reasonable inference was that if there had been no excessive escape of gas there would have been no fire. Defendants say a broken pipe or some other condition may have been responsible for the explosion, but these possibilities were for the trial court to weigh against the known facts. Although Munoz testified that no excessive amount of gas escaped during the operation the physical facts strongly indicated the contrary.

It must be apparent from the foregoing that we cannot say that the trial court reached a conclusion that was unwarranted by the evidence. To the contrary, an excessive amount of gas escaped, defendants were in control of it, and could not deny that in a normal, careful operation there would have been no ignition of gas. While continued violation of the applicable safety order by plaintiffs was, as defendants say, an acquiescence in a dangerous condition, and invites no sympathy for them, it is not correct to say that they were, or should have been, well aware that defendants might allow a large quantity of gas to escape, and yet were willing to run the risk.

The factual issues were given careful consideration during the trial and on motion for new trial, and have support in the evidence.

The judgment is affirmed.

SHINN, Presiding Justice.

PARKER WOOD and VALLÉE, JJ., concur.

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