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Click here for the full text of this decision FACTS:Laura Blevins bought a mobile home at Lake Arrowhead in 1992. The propane tank and line were already hooked up when she bought the trailer, and Blevins did not know who had previously serviced the tank. Responding to an “out-of-gas” call in November 1993, Murray & Massie Butane, owned by Vincent Pharris, tested for leaks, reconnected the line, filled the tank and lit the pilot lights. Murray & Massie provided further service and filled the tank on four more occasions through Jan. 21, 1994. Murray & Massie stopped deliveries, because it had not been paid for the past three deliveries. Blevins called Calvin Gas Co. the next time she ran out of gas. Calvin filled the tank in early March but did not inspect the system or light the pilot lights. On March 9, 1994, Blevins returned home from work in the early morning hours, turning on the burners of her kitchen stove to warm the house. There was no other heat in the trailer because the pilot lights to the furnaces had been out for several days. Blevins left the stove burners on when she went to bed. Blevins’ daughter and three grandchildren lived with her. No one smelled gas. Later in the morning, when one of the boys went into the kitchen, Blevins’ daughter, Leighia Hutchison, heard the boy scream and then saw what she later described as a fireball above the stove. It “swooshed” back toward the laundry room and knocked her down. Soon the whole trailer was on fire. Hutchison’s two youngest children were killed in the fire. Kenny Lemons, a state-certified fire investigator, was called to the scene of the fire. Though most of the wiring had been destroyed, Lemons said that the most likely origin of the fire was the furnace, and the cause was “some kind of gas leak” in the laundry room area. He surmised that the leak came from under the furnace, which was rusted and inoperable. Lemons called in David Duke, a Wichita Falls fire and arson investigator. Based on eyewitness accounts and physical evidence, Duke, too, guessed that the fire originated in the laundry room from “some sort of gas leak” under the furnace. However, he also agreed that if a fireball came off the stove and migrated back to the furnace, then the point of origin of the fire would be in the kitchen. Blevins and Hutchison sued several parties, including the trailer manufacturer, the furnace maker, Calvin Gas and Murray & Massie. All claims except those against Murray & Massie were settled. Blevins and Hutchison claimed that Murray & Massie were negligent in not replacing the propane tank’s regulator, which was more than 15 years old. This allowed excess pressure to build up in the tank and leak into the home. The burners ignited the leaking gas, the said. They also claimed Murray & Massie violated the DTPA by breaching a warranty to perform services in a workmanlike manner and by failing to replace the regulator or advise Blevins that the regulator needed to be replaced. At trial, Blevins and Hutchison called Michael Chaney, an independent certified fire investigator, and Robert Ross, an expert consulting engineer, who explained the purpose and function of the propane tank regulator. Ross testified that the regulator on this propane tank was manufactured 21 years before the fire by Fisher. Ross further explained that Fisher had sent out warnings and recommendations with its regulators suggesting that they be replaced if they were over 15 years old. Ross said that regulators can wear out on their own or from being left unprotected and getting blocked by natural elements. Ross further testified the Texas Railroad Commission promulgated procedures for checking and shutting down the propane system when making certain service calls. He acknowledged that even before the TRC adopted these rules, Murray & Massie not only complied with the eventual requirements but exceeded them. He thought Calvin Gas had not complied with the rules. In Ross’ opinion, Calvin Gas was negligent for not following the rules, but he thought Murray & Massey was just as negligent because the company should have changed the aged regulator. Pharris testified that he was well aware of the regulations and that he followed them, even if it meant having to give away a regulator to someone who could not afford to replace an old one. He stipulated that the person who delivered gas to Blevins did not tell her of Fisher’s recommendations (Murray & Massie was not a Fisher dealer at the time), but his inspection of the regulator after the fire showed to him that it was still well protected from the elements. Another certified fire investigator, Jean McDowell, testified about his visit to the site of the fire a year later. He said there was not enough evidence left to determine the origin of the fire, but from what he could observe, he would have classified the fire’s origin as “undetermined.” Murray & Massie also called James Peterson, a forensic mechanical engineer, who testified that Murray & Massie acted as a reasonably prudent propane gas dealer. As a member of the National Propane Gas Association, Peterson also testified that the 15-year replacement recommendation was a guideline but had never been adopted as an industry-wide national standard. The jury was given a broad-form question on negligence. On the question of whether the negligence of Blevins or Hutchison was the proximate cause of the fire, the jury answered “yes.” On the question of whether the negligence of the furnace maker, Calvin Gas or Murray & Massie was the proximate cause of the fire, the jury answered “no.” Blevins was assigned 70 percent of the blame, Hutchison was assigned 30 percent of the blame, and the defendants were assigned 0 percent blame. Blevins and Hutchison appeal. HOLDING:Affirmed. Blevins and Hutchison first argue that there is no evidence (or factually insufficient evidence) that either of them were negligent, because no expert witness testified that either of them caused the fire. The court says it is persuaded that the jury’s refusal to find proximate cause as to any negligence by Murray & Massie is sufficient to support the judgment. The jury’s answer as to Murray & Massie could have been based upon the jury’s refusal to find either that Murray & Massie was negligent or that any such negligence was a proximate cause of the occurrence. Additionally, the jury attributed 0 percent causation to Murray & Massie. The court says it is “unnecessary” to address the legal or factual sufficiency of evidence to support the jury’s findings of negligence as to Blevins and Hutchison or the jury’s failure to find Murray & Massie negligent. It also finds that Blevins and Hutchison did not challenge the negative finding as to proximate cause or that the finding is supported by the evidence. The plaintiffs did not raise any such issue in their original appellate brief. Absent such a complaint, the jury’s refusal to find proximate cause is sufficient to support the judgment, regardless of the contributory negligence finding and regardless of whether the jury properly failed to find Murray & Massie negligent. The court then turns to examine the jury’s refusal to find that Murray & Massie’s actions were the proximate cause of the fire and the children’s deaths. The court disagrees with the plaintiffs’ characterization of the four fire investigators’ testimony. Though Blevins and Hutchison claim that Lemons and Duke both testified that the fire was caused by a propane leak at the furnace control valve, neither party actually mentioned that valve. The third certified fire investigator, Chaney, acknowledged he was not qualified to commit to a professional opinion regarding the control valve or regulator. The fourth, McDowell, was of the opinion that the cause could not be determined from the evidence. The court says it is not aware of any case law to support the plaintiffs’ argument that only fire investigators certified by the State of Texas may testify regarding the cause and origin of a fire. As for the rest of the experts’ testimony, Blevins and Hutchison’s expert, Ross, admitted that he never tested the regulator from the trailer, but Murray & Massie’s expert, Peterson, did. Peterson’s opinion directly contradicted Ross’ testimony. Like many medical malpractice lawsuits that come down to a “battle of the experts,” the court says it was the sole prerogative of the jury to determine which of these witnesses it believed. “Here, the jury believed Murray & Massie’s experts that the regulator did not cause the fire, rather than the experts offered by [Blevins and Hutchison]. We are unable to conclude that the jury’s refusal to find that any negligence of Murray & Massie was a proximate cause of the occurrence was against the overwhelming weight and preponderance of the evidence.” OPINION:Gardner, J.; Cayce, C.J., and Gardner, J.

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