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Defense rejected claim leaky propane tank led to headaches
Franklin County, Court of Common Pleas
Premises Liability – StoreProducts Liability – Strict Liability, Breach of Warranty, Household ProductsAffirmative Defenses – Assumption of RiskProducts Liability – Manufacturing DefectAffirmative Defenses – Contributory Negligence
Manav Manawalia v. The Kroger Company and Ferrellgas LP,
April 20, 2016
Manay Manawalia (Male, 27 Years)
Joseph B. Russell;
Campinha Bacote LLC;
The Kroger Co.
Dickie McCamey & Chilcote P.C.;
The Kroger Co. ■ John A. Kristan;
Kelley Jasons McGowan Spinelli & Hanna, LLP;
On April 27, 2014, plaintiff Manav Manawalia, 27, who worked in hotel group sales reservations, traveled with his sister to a Kroger supermarket in Columbus. While at the store, they returned two empty propane tanks and purchased two full tanks, which were placed in the car trunk. While Manawalia’s sister shopped, he remained in the car with the windows closed, and began to experience lightheadedness and headache. When he got home, as he unloaded the car, he claimed he heard a whistling sound from one of the tanks, and discovered a small hole in it. When Manawalia placed his hand over the hole, the whistling stopped. He called the Kroger store to complain about the leaking tank and demand that the store send someone to pick it up. The store explained he would get a refund if he returned the tank to the store. Manawalia returned both tanks, for which he received a refund and two new propane tanks. Manawalia sued The Kroger Co. and also sued Ferrellgas LP, which was responsible for filling the tanks and selling them to Kroger for retail sale. The lawsuit sought to establish that one of the two tanks leaked and that Manawalia’s exposure to the leaking gas while he waited in the car on the date of the purchase was the cause of his headaches and lightheadedness. The suit brought claims under theories of products liability, negligence and breach of warranty. According to Manawalia’s counsel, the tanks, which were sold under the brand name Blue Rhino, would be filled by Ferrellgas at its plant and delivered to Kroger stores by a Ferrellgas driver. Upon delivery, the tanks would be placed in a locked cage outside the store, until there was a sale. On the day of Manawalia’s purchase, a store employee came outside, unlocked the cage and assisted Manawalia in placing the two propane tanks in the trunk of his car. The tank in question was never identified, so there was no examination of it by experts. After the tanks were returned to the store, they were picked up by Ferrellgas and taken out of circulation. Ferrellgas took the position that there was no proof that the propane tank was defective while under its control. It achieved a summary judgment dismissal of the products liability claim about one month prior to trial. Kroger also denied responsibility for a leaking tank. The store argued that when Manawalia returned the tank, complaining of a leak, the management took him at his word, refunded his money, and provided two free tanks as an accommodation. There was nothing conveyed to the store to alert it to the need for preserving or examining the tank.
Manawalia experienced lightheadedness and headache, which he attributed to exposure to the leaking gas. He claimed this condition intensified and persisted for three days and that he took Tylenol to alleviate pain. He stated he lost a few days’ wages, which also caused him to lose some bonus income. Manawalia testified that he had to have the interior of his car professionally cleaned twice, and he sought to recover the cost of the cleanings. Counsel for the defense argued that there was no proof of a causal connection between the alleged exposure to propane gas fumes and the headaches and lightheadedness Manawalia claimed to suffer. The onset of the symptoms could have been the result of a myriad of circumstances. Counsel also argued that Manawalia was himself negligent in transporting the propane tanks in his car with closed windows and assumed the risk of injury, contributing to his exposure to the propane gas.
The jury returned a defense verdict. Although Ferrellgas was dismissed from the case, the jury was allowed to consider whether the Blue Rhino tank was defectively manufactured. The jury found that the Blue Rhino tank was not negligently manufactured and that Manawalia had sustained his burden of proving that Kroger was negligent. However, the jury also found that Manawalia had assumed a risk, constituting negligence on his part and went on to apportion 51 percent of liability to Manawalia and 49 percent of liability to Kroger. As a result of the apportionment, a defense verdict was entered.
This report is based on information that was provided by plaintiff’s and defense counsel.