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Strategy under scrutiny
June 1, 2009 By: Jay Johnston LPGasThere is a great quote by Sun Tzu, Chinese general and military strategist: “Keep your friends close and your enemies closer.”
I believe that was a strategy of LP Gas Magazine Editor Patrick Hyland and plaintiff attorney Don Beattie to access each other’s way of thinking when they decided to share thoughts about propane liability (page 20).
Beattie says, “I don’t think anybody would ever accuse the gas company of intentional conduct. Nobody wants to see a gas leak and have somebody get hurt.” On the other hand, to prove his cases, Beattie has suggested, in my opinion, exaggerated circumstances and unfeasible communication expectations of gas companies. One thing we all agree on is the importance of the effort to prevent accidents.
Beattie’s job is to portray his clients as victimized by a company with money. Sad to say, but these attorneys get up to 40 percent of any award plus court costs. And while doing so, they try to make isolated circumstances look commonplace to suggest liability.
Reviewing the issues
The prospect of a leaking propane system is rare and unlikely, assuming the system is functioning properly and there has been no external change or interruption of service.
Claims of inability to smell odorant warnings while sleeping are mostly unsubstantiated and do not pass the smell test or deserve credibility as a common exposure. Properly odorized propane is clearly detectable to most people. It may not be perfect, but it generally is effective.
In fact, it is a requirement that all propane be odorized, and in most cases minimum odorant standards are exceeded. In the few situations where gas may not be detected, I agree with published consumer safety literature recommending consumers purchase UL-listed gas leak and UL-listed carbon monoxide detectors. However, the purchase, maintenance and proper use of these detectors should be the sole responsibility of the occupants of the home, not the gas company.
It is true that reasonable warning and safety material distributed to consumers recommending caution and safe practices should be done frequently, and I am certain a majority of propane marketers are warning consumers numerous times a year.
Such warnings are consistent with the performance of gas system checks, mailings, information on the backs of work orders, delivery tickets and invoices. Current Propane Education & Research Council (PERC) safety material clearly suggests and recommends that the consumer purchase and use these detectors.
Propane marketers may suggest detectors and recommend such practices, but they have no control, jurisdiction or ability to keep consumers from doing stupid things such as failing to purchase detectors, tampering with their own system and/or creating a leak.
Video education
Plaintiff’s attorneys encourage consumer video education. PERC’s Safety and Training Advisory Committee (STAC) has discussed the use of video for consumers and is weighing the proper circumstances of use and content. As with all safety communication, it should be weighed and developed responsibly. STAC does an excellent job of that.
Some kind of video communication may add value to current written material, but attorneys would suggest marketers be obligated to certify consumer comprehension. It is wrong and self-serving to suggest gas companies certify consumer comprehension regarding safety warnings. That is not feasible, practical or a valid obligation.
Lastly, I believe a majority of marketers adequately warn consumers:
• Not to work on their gas system.
• Take necessary precautions if they smell gas.
• Use gas leak and CO detectors.
• Use a gas system check.
In a legal battle where money is on the line, the interpretation of safety communication obligations always will be challenged. However, I find comfort in this: Beattie feels if a marketer communicated these four warnings to the customer, he would have no grounds to challenge duty to warn.
The propane industry does a great job with safety. Hard-working people are in the field every day, executing professional work and communicating effectively about safety with consumers. We owe them our thanks and appreciation for a job well done.
Friend or foe, we can all agree that’s a great safety strategy.