FSM SUPREME COURT TRIAL DIVISION
Cite as Lebehn v. Mobil Oil Micronesia, Inc.
10 FSM Intrm. 348 ( Pon. 2001)
 
[10 FSM Intrm. 348]
 
CLARK LEBEHN, a Minor, through his Next Friend,
MERLEEN LEBEHN,
Plaintiff,
 
vs.
 
MOBIL OIL MICRONESIA, INC., MOBIL OIL
CORPORATION, MOBIL OIL GUAM, INC., and
ALEX PANUELO d/b/a PANUELO'S SERVICE
STATION,
Defendants.
 
CIVIL ACTION NO. 1998-005
 
FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
Richard H. Benson
Associate Justice
 
Trial: August 21-25, 28-31, September 1, 4-7, 12-14, November 6-10 2000
 
Submitted: December 12, 2000
 
Decided: July 25, 2001
 
[10 FSM Intrm. 349]
 
APPEARANCES:
 
For the Plaintiffs:                               Daniel J. Berman, Esq.
                                                            P.O. Box 1491
                                                            Kolonia, Pohnpei FM 96941
 
For the Defendants:                          Fredrick L. Ramp, Esq.
                                                            P.O. Box 1480
                                                            Kolonia, Pohnpei FM 96941
 
                                                            Francis M. McKeown, Esq.
                                                            McKeown Vernier Price Maher, JV
                                                           101 California Street
                                                           San Francisco, CA 94111
 
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HEADNOTES
 
Evidence
     Introduction of other burn cases to show that defective fuel in those cases tended to show the fuel was defective in the present case is relevant if the other cases are similar. Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 352 (Pon. 2001).
 
Torts ) Negligence
     Negligence consists of four essential elements: 1) a legal duty owed to the plaintiff by the defendant, 2) a breach of that duty, 3) injury to the plaintiff, and 4) a showing that the breach was the proximate cause of the injury. Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 352-53 (Pon. 2001).
 
Torts ) Duty of Care
     Sellers of inflammable liquids owe a high duty toward consumers to exercise care in the sales of inflammable liquids to consumers. Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 353 (Pon. 2001).
 
Evidence ) Burden of Proof; Torts ) Causation
     A plaintiff who establishes the existence of risk factors which may have caused the injury, must show that these risk factors did in fact cause the injury. Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 353 (Pon. 2001).
 
Evidence ) Burden of Proof; Torts ) Causation
     It is enough that the plaintiff introduce evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. Stated another way, it does not require that the proof eliminate every possible cause other than the one on which plaintiff relies, but only such other causes, if any, which fairly arise from the evidence. Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 353 (Pon. 2001).
 
Evidence) Burden of Proof; Torts ) Product Liability
     When no product defect is found, causes of action based on strict product liability and on breach of warranty fail and res ipsa loquitur is not applicable. Lebehn v. Mobil Oil Micronesia, Inc. , 10 FSM Intrm. 348, 353 (Pon. 2001).
 
[10 FSM Intrm. 350]
 
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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

     The plaintiff, Clark Lebehn, seeks damages resulting from serious burn injuries suffered while filling and lighting a kerosene lantern on May 1, 1992. The case was commenced on 12 February 1998. It was tried to the court 21 August to 14 September 2000 and 6 November to 10 November 2000. Closing arguments, both oral and written, were completed 11 December and the matter then submitted for decision.

     The amended complaint seeks general, special and punitive damages. The causes of action against all defendants are based on strict product liability, breach of warranty and reckless and wanton misconduct. Lebehn alleges that the three Mobil defendants are also liable for their negligence. The defendants' affirmative defenses are assumption of risk, and contributory and comparative negligence.

     Lebehn asserts that what was sold by Panuelo as kerosene was contaminated by gasoline.

Findings of Fact

     These findings are determined by whether the plaintiff established his case by a preponderance of the evidence.

1. Clark Lebehn's Accident

     On 1 May 1992, about 6:45 to 7:00 p.m., the plaintiff, then age 8, and his cousin, older by 5 to 7 years, were directed by the cousin's father to fill, clean and light a kerosene lantern. The uncle purchased the kerosene from Panuelo's Service Station two or three hours earlier. Those three were in a shelter referred to as a grave house. This was 40 by 15 feet with partial walls and security screen up to the metal roof. It had no illumination other than natural light. It was dark or nearly dark while the task took place.

     The uncle remained in the grave house, was about 20 to 30 feet from the boys, was aware generally of their actions, but did not watch them continuously. The boys squatted before the kerosene lantern, holding the lamp in their hands while filling. The kerosene was poured from a full one-gallon container. The pour hole of the container was a little over one inch in diameter. The lantern's fill hole was about three-fourths of an inch at the entrance, which reduced to about one-half inch after leaving space for its cap to seat. No funnel was used. After filling, the container's cap and the cover on the lantern's tank were replaced.

     While lighting the lantern, combustion occurred in which Lebehn's short pants caught fire. (There is no evidence that the lantern was ever actually lit.) The flames rose and singed his face, burned part of his left arm and his penis raising some blisters. The fire caused second degree burns on Lebehn's anterior and interior thighs resulting in permanent disfigurement. Lebehn was in pain, frightened, and jumping around. The uncle and the cousin removed Lebehn's shirt and tried to remove his short pants where the fire was most intense. After a short time they were successful and Lebehn was taken to the hospital. (Their effort was directed first to removal of the pants and not to extinguishing the fire.) The cousin suffered superficial burns to some of his body not covered by clothing.

[10 FSM Intrm. 351]

     Neither the container, the fuel remaining in it, nor the lantern were kept. The cousin died of causes unrelated to this incident before this case was filed.

     Kerosene stoves and lanterns are widely used in Pohnpei, generally without incident.

2. Other Burn Cases

     The Pohnpei bulk plant used two trucks for delivery of gasoline and kerosene in 1992. In late November 1992 until early January 1993, there were several burn cases involving lanterns or stoves. Mobil Oil Micronesia, Incorporated (MOMI) found that kerosene delivered to retail service stations was contaminated with gasoline. The larger, 5,000 gallon truck, ME 147, delivered that kerosene. Faulty flushing caused the contamination. MOMI accepted responsibility for the injuries and paid damages. Defective parts in the same truck caused other burn injuries in 1994.

     On 16 January 1992, Marko Ehsa was injured when her stove suddenly flamed. The fuel was purchased at Silverose and used to fill a stove. She filled and lit the stove in her usual manner without incident. Her children were in the house, and one small daughter was very near the stove. Ms. Ehsa turned to do other tasks. A few seconds passed and the sudden flame occurred.

     On 31 May 1992, Altina Adolip filled her stove with fuel purchased at Bernard's, and lit it in her customary way. A small child was near the stove. Ms. Adolip placed a frying pan on the stove and turned away to do other tasks. Several seconds later the stove flamed and injured her.

3. Defendants' Duty of Care

     Lebehn alleges that the defendants violated their duty of care which led to the contamination of kerosene by gasoline, a defective product which caused his injuries.

     Only ME 096, the smaller, 3,000 gallon truck, delivered kerosene to Panuelo's Service Station in April 1992. That station had a 500 gallon storage tank for kerosene. Each delivery was 400 gallons, although Mobil policy set a 1,000 gallon minimum for deliveries. The policy aimed to reduce chances of contamination.

     The Pohnpei bulk plant, owned and operated by MOMI contracted for the drivers of its delivery trucks. No contention is made that the contractor and his drivers were not agents of MOMI. The contract between the bulk plant and the contractor provided that he "shall comply" with the provisions of the Safe Practices and Procedure Guidelines (SPPG) issued by MOC. The contractor was not provided with a copy of those guidelines applicable to Tank Truck Loading Procedures and Tank Vehicle Unloading Procedures, nor were they explained to him. The contractor was not fluent in English, the language of the SPPG. His first languages are Nukuoran and Pohnpeian. The contractor was engaged after being a "utility man" at the bulk plant, then promoted to driver, a position for which he was given on-the-job training by the then contractor. Later he became the contractor. He received no instruction or guidance from the manager of the bulk plant concerning safe practices, passed no examination, fulfilled no required qualifications. He supervised and hired other drivers.

     SPPG prohibited carrying mixed loads, that is, different products, unless the "low flash product [is] unloaded through a dispensing system separate from the one used to deliver high flash products" and there are double bulkheads separating the compartments. ME 096 had three 1,000 gallon compartments. They were separated by double bulkheads. There was no separate dispensing system.

     SPPG cautioned that switch loading "should be kept to a minimum." This is to protect the

[10 FSM Intrm. 352]

quality of the high flash product (which kerosene is), and requires flushing out the low flash product before loading the high.

     These guidelines are designed to prevent contamination. Mixed loading and switch loading did occur at the Pohnpei Bulk Plant.

     When the truck carries a mixed load, and one product and then another was to be delivered, the driver was required to flush the hose and piping of the first product before delivering the second. SPPG required that gasoline be first unloaded. This requirement was not always followed, and management gave no instructions in the matter until 1993.

     No inference can be made that any departure from these safety measures caused contamination of the kerosene in this case.

4. Kerosene Combustion Properties

      If gasoline were the product last unloaded from ME 096 before unloading the 29 April 400 gallons at Panuelo's, and the hose and piping were not flushed, there would be 2.5% gasoline in the 400 gallons given Panuelo's. This would lower the flash point from a minimum of 100 F. to 72 F.

      Kerosene does not explode, nor does kerosene contaminated with 2.5% gasoline explode. There was no explosion on 1 May 1992.

     A lantern filled with kerosene and a lantern filled with a 2.5% contamination of gasoline operate safely and normally if both lanterns are properly filled.

    The fuel sold to the uncle on 1 May 1992 was not defective. It was not contaminated kerosene.

      Fabric wet with kerosene burns if lit with a match. The burning is similar if the kerosene is contaminated with 2.5% of gasoline.

Conclusions of Law

1. Other Burn Injuries

     The purpose of the introduction of other burn cases was to show that defective fuel in those cases tends to show the fuel was defective on 1 May 1992. Such relevance can be shown if the other cases are similar.

     The court concludes that such relevance is not shown in this case. The late 1992 cases all involved deliveries by the 5,000 gallon truck. The 16 January and 31 May cases are distinguished particularly in that the filling and lighting were completed without incident. The witness in each case had turned away from the stove and was engaged in other activities when the unexplained flaming occurred. In addition, a small child was near the stove in each case. There is no evidence of the action, in any way, of each child between the time the parent turned away and the combustion. The common aspect is that the stoves in these cases were cold, as was the lantern in the present case. That is not enough to establish relevance.

2. Negligence

     Negligence consists of four essential elements: (1) a legal duty owed to the plaintiff by the

[10 FSM Intrm. 353]

defendant, (2) a breach of that duty, (3) injury to the plaintiff, and (4) a showing that the breach was the proximate cause of the injury.

     The defendants owed a high duty toward the consumers to exercise care in the sales of inflammable liquids to the people of Pohnpei. The court concludes however the duty was not breached as to the plaintiff.

     The plaintiff established the existence of risk factors which may cause contamination. The plaintiff failed to show that these risk factors caused this injury. The finding that the product was not defective reaches this aspect of an analysis, but is included because there is no finding that any or all of the risk factors present in the functioning of the Pohnpei bulk plant caused the injury. Cf. Gutierrez v. Excel Corp., 106 F.3d 683, 688 (5th Cir. 1997) ("These conditions may have caused injury. Appellants must show, however, that Excel did in fact cause their injuries.").

It is enough that the plaintiff introduce evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. Stated another way, it does not require that the proof eliminate every possible cause other than the one on which plaintiff relies, but only such other causes, if any, which fairly arise from the evidence.

Hudson v. Chevrolet Co. , 467 S.W.2d 751, 754-55 (Ark. 1971) (quoting Hill v. Maxwell, 448 S.W.2d 9 (Ark. 1970)).

      Applying the Hudson reasoning to this case, first, there is no finding that the accident was caused by the defendants. Second, the possibility that the accident was caused by the spilling of the fuel onto Lebehn during the filling of the lantern and was ignited by the match used for lighting was fairly raised in the evidence. Based on evidence that two or three seconds are needed to ignite the wet fabric, Lebehn suggests that ample time exists to disrobe and clean off any spillage or spilled fuel beginning to burn. This suggestion does not take into consideration perception and reaction time which was described in another context during trial. Lebehn failed to eliminate the possibility that the accident was caused by the spilling of the fuel onto him and its combustion as a possible cause of the accident.

     Since no product defect is found, the causes of action based on strict product liability and on breach of warranty fail. For the same reason res ipsa loquitur is not applicable.

     Because of these conclusions, findings and conclusions relative to the liability of Mobil Oil Corporation, a subject of extensive evidence and briefing was not necessary and are therefore not made.

     The defendants are entitled judgment in their favor, and their costs. The plaintiff shall take nothing.

     Let judgment be entered accordingly.

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