Court: Arizona Supreme Court; November 3, 1965; Arizona; State Supreme Court
Shell Oil Company appeals a $30,000 judgment from the Yuma County Superior Court in a case involving Jean Collar, the plaintiff. The case centered on allegations of negligence related to propane gas odorization. Collar attempted to verify if her water heater was lit by smelling for gas and, upon detecting no odor, lit a match, resulting in an explosion that caused her injuries.
Only Shell Oil remained as a defendant after the trial court dismissed the other two named defendants. Shell Oil argues the trial court should have granted its motion for a directed verdict, asserting that Collar failed to provide sufficient evidence of negligence. The plaintiff claims that Shell Oil inadequately odorized the propane gas, which is naturally odorless, and that had she detected an odor, she would not have lit the match.
During her testimony, Collar confirmed she had no issues with her sense of smell and did not detect any gas odor prior to lighting the match. Shell Oil contends this constitutes negative testimony, lacking probative value, since it does not prove that gas was present or that Shell Oil was negligent in odorizing the gas. The court recognized that negative evidence requires a foundation to establish that the witness could have perceived the event had it occurred.
Testimony indicating a fact did not occur, based on a witness's failure to perceive it, is valid if the witness was in a position to observe the fact under normal circumstances. The witness must demonstrate the context of their non-observation, including their activities, focus, sensory acuity, location, and overall attentiveness at the time. In the case of Perry v. Butler, it was established that negative testimony from an observant position is considered positive. The plaintiff's testimony, which included a lack of detectable gas odor and sounds before lighting a match, was deemed sufficient to convert a negative assertion into positive evidence. This testimony stands on equal footing with conflicting evidence from the defendant until the jury decides the factual dispute. The presence of credible evidence suggesting negligence allows the jury to infer negligence. The trial judge's instructions emphasized that the negligence claim against Shell Oil Company pertains to their failure to effectively odorize the gas. Simply odorizing the gas is insufficient; the odorization must be effective to provide adequate warning of any leaks. The key issue of liability is whether Shell Oil Company successfully odorized the propane gas.
The defendant, Shell Oil Company, argues that the trial judge incorrectly submitted the case to the jury based on negligence because the plaintiff only alleged a complete lack of odorization, not ineffective odorization. The defendant claims this limited pleading did not provide them with notice to prepare a defense regarding negligence. The plaintiff's amended complaint states that Shell sold propane gas to the plaintiff that lacked an added malodorant, which was a direct result of the defendant's negligence. The court finds that the pleadings adequately communicated the negligence claim, as terms like "not odorized" and "failure to odorize" imply negligence or ineffective odorization. The plaintiff alleged that either no malodorant was added or that any added was undetectable. The court determines that no prejudice occurred from the defendant's defense based solely on the presence of a malodorant, as the core issue was whether the plaintiff could smell the gas.
The court also dismisses the defendant's claim regarding the admission of evidence concerning the burner unit, asserting that there was no evidence of gas from any source other than Shell Oil. The defendant failed to disprove that their gas exploded, focusing instead on the argument that their gas was odorized, which is now moot. Lastly, the court addresses the defendant's concern about a jury instruction, stating that if an instruction omits an essential element but is correct in other respects, the omission may be cured by other instructions. The judgment is affirmed, concluding that effective odorization of gas is necessary to warn of potential leaks, and the definition of negligence involves a failure to act with reasonable care.
