Rita Porter, Individually & as Mother & Next Friend of Dawone Porter, a Minor & Patty Gordon, Individually & as Next Friend of Dylon Gordon, a Minor, Armando & Yvonne Gutierrez, Individually and as Parents & Next Friend of Armando & Amanda Gutierrez v. Heritage Operating, LP, A/K/A Denman Propane and Catholic Diocese of El Paso (San Lorenzo Church)

Citation: 569 S.W.3d 686Docket: 08-13-00002-CV

Court: Court of Appeals of Texas; October 31, 2018; Texas; State Appellate Court

Original Court Document: View Document

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In a case stemming from a 2009 fire at the Fiesta de San Lorenzo Church carnival in Clint, Texas, several teenage volunteers suffered burns, leading to a lawsuit by the Families, who are appellants. They allege that Heritage Operating, L.P. is responsible for the fire due to a leaking propane tank improperly filled, and that the Catholic Diocese of El Paso failed to ensure safety standards at the event. During the trial, Heritage and the Diocese contended that the fire was caused by a volunteer improperly handling boiling grease. The jury found both defendants not liable, resulting in no compensation for the victims. On appeal, the Families argue that the jury's verdict contradicts the weight of the evidence and that several trial errors, particularly a defense counsel's statement referring to the incident as an "unavoidable accident," compromised the trial's integrity. The court affirmed the trial court's judgment concerning Heritage Operations, L.P. but reversed the judgment against the Diocese, ordering a new trial.

San Lorenzo Church has hosted an annual three-day festival, Fiesta de San Lorenzo, for fundraising purposes for decades. Lupe Gonzalez served as the festival chairman, and the El Paso County 4-H Leaders Association had rented a booth at the festival for several years under a contract with the Diocese, which stipulated a $650 rental fee and compliance with specific rules. At the time of the fire, the 4-H booth utilized a gold ASME propane tank, provided by Bryan Diller, connected to a steam table. Disputes arose regarding whether the tank had been filled prior to the festival and the potential for leakage.

During the festival, four teenage volunteers and two adults operated the booth. The booth layout included a snow cone machine, a cash register, the propane tank beneath the steam table, a refrigerator, a funnel cake fryer, and a larger deep fryer, with a designated exit door. The specific positions of the booth occupants prior to the fire were crucial to the trial's proceedings. Various aspects of the fire itself, including its cause, duration, and sound, were also contested and will be further addressed in the opinion.

Volunteers sustained varying degrees of physical injuries, which were largely uncontested. Armando Gutierrez experienced a minor burn on his hand, while Dylon Gordon suffered severe burns on his legs and elbow. Dawone Porter had burns from her feet to her thighs, and Amanda Gutierrez sustained extensive burns on both arms, her stomach, and legs. Porter, Gordon, and Amanda Gutierrez were transported to the Texas Tech Burn Center for treatment. 

In the procedural history, the Families filed suit against Heritage, the Diocese, and individual defendants Francis Paneral, Bryan Diller, and Danelle Ivey, who were leaders in the Adult 4-H Leaders Club. The Families settled with Paneral, Diller, and Ivey before trial and dismissed them from the case, leaving Heritage and the Diocese as the remaining defendants. The trial lasted approximately one month and involved thirty-five witnesses. Key trial issues included whether Heritage negligently filled a defective tank and whether the plaintiffs’ injuries were caused by a propane leak or a grease fire attributed to volunteers.

During the case-in-chief, the Families presented three categories of witnesses: those knowledgeable about the booth’s tank and equipment, eyewitnesses to the fire, and expert witnesses. Bryan Diller, a former president and safety officer of the Adult Leaders Association, provided the propane tank and equipment for the 4-H Club’s booth. He confirmed filling the propane tank at Denman Propane, owned by Heritage, and recounted a rude interaction with a worker there. Under cross-examination, Diller noted that equipment, including a cooler, fryer, and cash register, showed signs of damage post-fire, such as broken straps, blistered labels, and greasy residues. He indicated that he routinely checked for gas leaks by smelling and performing soap tests when changing tanks, but he did not detect propane inside the booth before the fire. However, he did smell propane outside when witnessing a hissing tank being connected. Diller claimed to have used the equipment safely about fifty times before without incident. Additionally, he described the procedure for bringing items into the booth and relayed Amanda Gutierrez's account of her injury during the fire, mentioning that she fell while trying to grab the fryer. Diller also noted that Mrs. Eveler and Dawone were assisting during the fire incident.

Plaintiffs’ counsel presented excerpts from Diller’s deposition, highlighting his preparation of an "Incident Investigation Abnormal Event" report, which claimed that an ice chest contained water. Diller asserted he knew this from personal knowledge, arguing it was implausible to completely remove ice and water from a flat-bottomed chest. He speculated that, even if any ice had been disposed of, residual water droplets would likely remain. However, Diller was not present at the event in question and lacked evidence from anyone who inspected the chest after a fire to confirm his assertions about its contents. He also did not inquire with individuals present at the booth regarding whether the ice chest had been emptied.

Manuel Provencio, an authorized representative of Heritage, testified that the company retained receipts for all purchases, typically including customer names, although some receipts shown lacked this information. On cross-examination, Provencio could not produce a receipt confirming that Heritage filled the specific tank involved in the case. Jose Jurado, a bottle filler for Heritage, denied that the company had ever filled the tank in question, stating he had no recollection of it and that no relevant receipts were available. He noted that filling the tank improperly would be illegal and explained that visual inspections for damage would occur unless a customer reported a leak. Jurado confirmed that customers received a ticket for tank fillings, which were retained by the company, and acknowledged that he had never seen the unique gold-painted tank before.

Chief Oliberto Lopez of the Clint Fire Department provided testimony regarding his response to an incident at a festival. While on duty and patrolling on ATVs, he heard a loud crash, which he initially thought was a vehicular collision. Upon investigating, he observed a puff of black smoke at the 4-H booth approximately 300 feet away. Upon reaching the scene, which took about three minutes, he found a young girl and another child in pain, with the girl suffering from second-degree burns. He also noted the presence of a hissing sound from a nearby propane tank's pressure relief valve, although he did not detect any propane odor. Despite the lack of fire upon the fire crew's arrival, they sprayed water on the propane tank to reduce its temperature.

Lopez described the 4-H booth as a cramped space, approximately eight by ten feet, with only one entrance. He observed hazardous conditions, including grease on the floor and burned mesh screens. He instructed Lupe Gonzalez to contact the El Paso County Sheriff’s Office for a proper investigation, while Gonzalez indicated he would shut down the booth, allowing the bazaar to continue. Over six years of festival service, Lopez mentioned that the fire department had previously dealt with minor burn incidents, but none required hospitalization. He clarified that dropping ice or water into hot grease could cause a small explosion, but he did not believe an explosion occurred in this instance. He confirmed that a properly functioning pressure relief valve is designed to prevent tank explosions and noted that the valve had worked correctly, ceasing to release pressure once the temperature was reduced. He also stated that applying water to the tank would not stop any potential propane leak if one existed.

During redirect examination, Chief Lopez characterized the fire as sounding more like a propane explosion than a grease fire, noting that grease fires typically produce a sizzling or hissing sound. He explained that propane, being heavier than air, tends to settle low to the ground, which would result in burns on individuals near their feet if a leak occurred. Maria de la Luz Diaz, who operated a booth at the Fiesta de San Lorenzo, reported smelling propane on Friday and checked her propane tank, but found no leaks. She noticed a faint smell outside her booth on Saturday but not inside. On Sunday, she heard a loud explosion that shook her booth, followed by another louder explosion, which prompted her to flee; she witnessed injured children as she exited. During cross-examination, Diaz acknowledged that she did not know the source of the propane odor and did not report it to authorities.

Armando Gutierrez, a volunteer in the 4-H booth, recounted that on Saturday, the pilot light of their deep fryer needed relighting, which was done by his friend with a lighter. On Sunday, while working with his sister and other volunteers, Gutierrez heard and felt an explosion while washing his hands. He described a subsequent crash and a second explosion that was more intense. As he exited, he accidentally stepped on another volunteer, Dylon Gordon, who was on the ground. Immediately after, he sought relief for burns on his hand and noted that he and several others sustained injuries during the incident.

Gutierrez testified during cross-examination that he did not detect propane in the booth over the course of three days and had not used or seen the ice scoop frequently. He denied handling the cooler or witnessing anyone dump ice or water from it. Jennifer Eveler described the fire as a rapid flash fire that caused burns on her face, arms, and legs; she was unaware of its cause and denied operating the funnel cake fryer. Eyewitness Sandra Ortiz reported hearing a loud "boom" at the time of the fire from a distance and saw flames inside the booth, also mentioning smoke to 911 dispatchers. Veronica Villela, who occupied an adjacent booth, initially recalled smelling propane on Friday and later confirmed smelling it around noon on Saturday, but did not smell it on Sunday and was not present during the fire. Her husband, Jose Villela, also detected gas on Saturday and confirmed it was not from their booth. He described witnessing an explosion and fire on Sunday that was powerful enough to move a refrigerator. He noted the booth's disorganization and questioned the presence of many young workers.

Amanda Gutierrez, a burn victim, testified about her experiences during a fire incident at a food booth. She entered the booth with Dawone Porter, where they prepared food items including gorditas, snow cones, and funnel cakes. Gutierrez stated that she was solely responsible for making snow cones and noted that no ice was brought into the booth. An ice chest was present but was used as a chair. 

Prior to the fire, Gutierrez was at the steam table, while Porter was at the cash register. She described hearing an explosion behind her, followed by flames rising toward her face. In an attempt to escape, she closed her eyes and crawled toward the exit, possibly kicking a fryer in the process. She experienced a second, more powerful explosion that shook the booth while her hips were still inside.

Gutierrez sustained severe burns, including the loss of all her hair, eyebrows, and eyelashes, as well as burns on her arms, stomach, and legs, totaling about fifteen to twenty percent of her body. She rated her pain as a ten out of ten. Gutierrez informed an EMT that she believed something exploded inside the booth but denied making a claim about being displaced seventy feet, despite this note appearing in her medical records. At the hospital, she did not see Porter and denied any conversations with Bryan Diller or Shannon Pettigrew regarding ice being passed in the booth or any claims about water dripping into grease.

Gutierrez refuted claims of witnessing anyone introduce ice or water into boiling grease while working in the booth. Despite a medical notation indicating she reported water being thrown into boiling oil, she denied making such a statement to hospital staff. Similarly, she disclaimed ever stating that her injuries were due to a propane tank explosion, despite another notation suggesting this. After her initial treatment in El Paso, she was transferred to a burn facility in Lubbock, where she was treated by Dr. Griswold for eighteen months without activity restrictions post-release. Gutierrez described the incident occurring while she was making gorditas, noting the fire originated from the funnel cake fryer, and she suffered burns on the backs of her calves and arms. She mentioned Dawone Porter was behind her at the time of the fire and stated she did not detect any propane odor before or after the incident. Under morphine during her hospital stay, she denied relaying to nurses that ice or water had been thrown into oil or discussing any actions involving Porter and Dylon Gordon. On redirect, Gutierrez clarified that the last snow cone order occurred 20-30 minutes prior to the fire and believed some of her burns resulted from oil and others from propane exposure while escaping the booth.

Witness Robert Portillo, an off-duty lieutenant with the El Paso Fire Department, was nearby when he observed a flash followed by a rapid fire acceleration and smoke billowing from the booth. He noted that two young individuals sustained burns, with one boy suffering second-degree burns. While bystanders tried applying mustard to the boy's burns, Portillo intervened, washing him with a garden hose. He did not enter the booth, and during his deposition, he described the fire but did not classify it as an explosion, stating it could be attributed to either a propane or grease fire.

John Duran, Jr., an off-duty firefighter, witnessed an explosion at a festival while sitting with his wife at a distance of fifty to sixty yards from the 4-H booth. Upon investigation, he observed fire damage to the booth and a secondary explosion. Duran rescued a boy trapped inside, noting that several young individuals outside suffered severe burns, appearing to be second- or third-degree. 

Yvonne Gutierrez, mother of burn victims Armando and Amanda, received a call from Armando about Amanda’s injuries shortly after dropping them off at the booth. Upon her arrival, she encountered chaos and found Amanda with burns, later accompanying her to the hospital. While at the hospital, Yvonne was kept in the hallway as Amanda was treated. She later took Amanda to a burn center in Lubbock and described her care process to the jury. Yvonne mentioned that Armando experienced psychological issues post-incident but noted Amanda returned to her normal activities after several months of recovery. 

During cross-examination, Yvonne denied claims regarding a bag of ice being passed over hot oil. Armando Gutierrez, Jr., father of Amanda and Armando, was informed by Yvonne of Amanda's burns while he was working. He went to the festival site and later to the hospital, where he saw Amanda. He confirmed that only family and medical staff interacted with her in the emergency room and described the layout of the patient rooms. Armando stayed with Amanda until she was transferred to Lubbock, and during cross-examination, he stated that neither of his children ever mentioned smelling propane.

Dylon Gordon, fifteen at the time of the fire, worked in a booth preparing food but was not responsible for the funnel cake fryer. He described an incident where an ice chest was passed along an assembly line for filling with ice, stating it was empty when it reached him. After the ice chest exited the booth, Gordon heard an explosion and saw flames, prompting him to flee without feeling any hot grease. He observed that no water fell into the grease during the incident. After the fire, his mother removed his shoes, and a bystander applied mustard to his legs; he was later helped by others who ran water on his burns. Gordon sustained severe burns from his ankles to his knees and on his left elbow, leading to hospitalization and subsequent physical therapy. During cross-examination, he acknowledged it was his first day working in the booth and that he had previously assisted his mother with funnel cakes. He noted the ice chest was handed over the fryer but remained closed, and while he felt it was light, he could not confirm its contents. Gordon did not smell propane and indicated that adults involved did not provide him with risk training. He refuted claims that he apologized to Rita and Dawone Porter after the incident.

Patty Gordon provided testimony regarding incidents leading up to a fire. She described a process involving two ice chests, where a smaller chest was filled with ice and passed to her son Dylon, who then transferred it to a larger chest. After the smaller chest was emptied into the bigger one, Gordon exited the booth to take out trash and heard a single explosion, followed by a flash of fire. She witnessed Dylon running from the booth with smoke on his legs and noted he required ten days of hospitalization for burns. 

On cross-examination, Gordon confirmed she did not smell propane that day and mainly worked at the steam table while Amanda handled the cash register. 

Mark Miller, Gordon's common-law husband and Dylon's stepfather, testified that he heard two explosions from a nearby picnic table. He described the first explosion as a deep, whooshing sound, strong enough to create a shock wave, and the second as a pop associated with a falling fluorescent light. After assisting children out of the booth, he turned off multiple propane sources but observed flames jetting from a propane tank. He also noted a small fire starting in a plastic trash can. Miller did not detect the smell of propane and was seated with his back to the booth during the explosions.

Rita Porter, mother of Dawone Porter, testified about her arrival at the festival. She had previously expressed concerns about Dawone’s abilities regarding money and cooking due to Dawone's learning difficulties. Porter described the first explosion as a loud whoosh, similar to lighting a heater, and noted that the second explosion occurred as Jennifer Eveler entered the booth. She rescued Dawone, who had suffered burns and was later intubated and flown to a burn center in Lubbock. Porter had a brief exchange with Shannon Pettigrew regarding Dawone as they headed to the ambulance.

Porter testified during cross-examination that Dawone has a cognitive disability and was primarily homeschooled due to her disapproval of the educational institutions' handling of Dawone's needs, although Dawone was currently at the grade level of a freshman despite being sixteen. Porter expressed concerns about potential hazards at a festival booth where she volunteered, specifically regarding propane and oil, and made her wishes known to Danelle Ivey and others, who reassured her. She did not detect any propane odor and observed Ted Ivey and another boy bringing ice into the booth shortly before a fire broke out. During her deposition, Porter recalled Dylon Gordon expressing remorse and mentioned he indicated issues with the propane tank and that the fire originated there. Dawone testified that she was assigned tasks in the booth but received little guidance from Ivey, whom she noted left shortly after arriving. After briefly stepping outside to speak with her mother, Dawone returned to the booth, where she experienced two loud explosions. She attempted to escape but was impeded by a cord that struck her and was ultimately rescued by her mother. Dawone denied any involvement with ice or snow cones during the incident.

Porter, during cross-examination, claimed that her mother did not check on anyone in the booth after Porter returned and contradicted testimonies from witnesses regarding an ice chest and ice being present. She expressed uncertainty about the source and height of the flame. Expert testimony was provided by Dr. Michael Huerta, a mechanical engineer designated by the plaintiff, who examined a gold ASME tank manufactured in 1990. He conducted nondestructive tests by pressurizing the tank to 100 PSI and applying a soapy solution, discovering a significant leak in the overfill protection device (OPD) and a minor leak in the pressure regulator. He concluded that the OPD valve was defective, attributing this to the tank's age and degrading materials. His opinion was supported by witness testimonies regarding the smell of propane prior to the incident.

Dr. Huerta conducted additional tests using a grill and water, finding that varying amounts of water poured into hot oil produced flames but no explosions. He observed an erratic leak in a valve tested by defense expert Dr. Eberhardt, which ceased at higher pressures. On cross-examination, Dr. Huerta acknowledged his lack of experience in the propane field and did not quantify the leak rate, noting that the valve leaked only at lower pressures. The plaintiffs also called Timothy Dunn, a chemical engineer experienced with propane, who reviewed various materials, including fire reports and depositions from defense experts.

The expert reviewed the physical evidence and concluded that the fire was caused by propane, not grease. He noted that witness descriptions of explosions were indicative of propane ignition, which differs from the sounds of a grease fire. The transient nature of the fire, lasting only two to three seconds, suggested propane, as grease fires typically last longer. Dunn highlighted that overpressure effects, like movement in adjacent booths and falling light fixtures, pointed to a propane fire, since grease fires do not produce such overpressure. He considered Mark Miller's observation of a jet of fire from the propane tank as further supporting evidence for a propane cause.

Dunn argued that indications of the fire rising from the floor aligned with propane behavior, as propane is heavier than air and can pool when leaking. He described how circumferential burns on victims would be consistent with propane pooling, while burns from a grease fire would be more directional. The absence of testimony regarding water being dropped into grease also suggested a propane fire.

He explained potential reasons for a lack of propane odor detection, noting that propane could pool low and that cross-ventilation may have diluted the smell. Dunn indicated that the effectiveness of propane odor can vary among individuals. He criticized defense expert Dr. Scott Davis for miscalculating the size of a hypothetical propane leak, arguing that the dynamics of liquid versus vapor leaks are significantly different. Dunn explained that a malfunctioning OPD valve could lead to overfilling of propane tanks and described the filling process, which produces a distinct noise when the tank is filled to 80 percent. He referenced the National Fire Protection Association’s Pamphlet 921 as a standard for fire and explosion investigations.

Dunn rejected the notion that grease splotches on the cash register indicated a grease fire, asserting that such marks were on customer-facing sides rather than the keyboard, which would have been affected if a fire originated from the fryer. He argued that if a fire had been caused by water interacting with grease, those present (Jennifer Eveler and Dylon Gordon) would have sustained more severe burns, and there wouldn't have been overpressure or blast damage, contradicting the testimonies he reviewed. On cross-examination, Dunn conceded he had not personally inspected the booth or the cooking equipment prior to his testimony. He acknowledged the possibility of propane migrating through the floor and settling in pallets below the booth but did not examine the valve directly, though he claimed familiarity with valve operation. Dunn clarified that propane does not burn in liquid form and noted Mark Miller’s observation of flames emerging from the tank's pressure relief valve rather than the filler valve. He did not review the statements of several key witnesses. Dunn indicated that a "whoosh" sound could be associated with a flash fire and that black smoke could result from incomplete combustion, potentially from canola oil, though not typically from propane. He estimated tank pressure during the fire to be at least 175 PSI, rising to approximately 200 PSI with temperatures over 100 degrees. Dunn disagreed with Dr. Huerta's assertion of an explosion, stating that such an event would have damaged the booth, and believed the injuries were due to a propane flash fire that caused a fluorescent light fixture to fall, igniting cooking oil as individuals attempted to escape.

Edward Ziegler, a petroleum engineer and plaintiffs' safety practices expert, testified about his extensive experience with petroleum and gas products. He reviewed Dr. Huerta’s videos and other litigation materials, opining that the tank in question should not have been filled and used at the carnival, citing Heritage's negligence based on the tanks' conditions and related factors. Ziegler explained that a Department of Transportation (DOT) regulation prohibits refilling DOT tanks over twelve years old without requalification. The gray forty-pound vertical tank, manufactured in 1985, was thus illegal to refill and transport without inspection post-2007. Although this tank was not the one that allegedly leaked, Ziegler maintained that Heritage failed to adhere to government regulations and industry standards. He also described the gold ASME tank as intended for permanent installation on equipment, such as being bolted to a motor home.

Ziegler testified that Texas Railroad Commission regulations prohibit Heritage from introducing gas into any container if there is knowledge or reason to believe the container or system is unsafe. He indicated that Heritage should have recognized the unmounted tank brought by Diller was not permissible for filling. Ziegler emphasized that checking for leaks is essential during tank refilling, and failure to do so constitutes improper procedure, which he deemed gross negligence on Heritage's part. He also attributed proximate cause for the explosion to the Diocese's negligence, noting that the Diocese was aware of potential hazards due to contractual obligations indicating the need for compliance with safety regulations. Ziegler referred to NFPA No. 101, which mandates a minimum of thirty square feet of floor space per person, concluding that only four individuals should have been allowed in a 120-square-foot booth. He criticized the Diocese for lacking a safety program and insufficient training for staff, specifically pointing out that Danelle Ivey improperly sent untrained and underage volunteers, such as Dawone Porter and Armando Gutierrez, into the booth. Ziegler also faulted Bryan Diller and others involved for their ignorance of applicable safety regulations. He claimed a defective filler valve contributed to the incident. Additionally, Dr. Joe Gonzalez provided testimony regarding the life care plan he prepared for Dawone Porter, detailing her severe burn injuries and future medical needs, while Dr. John Griswold was mentioned as another witness called by the plaintiffs.

Dr. Griswold, medical director of the Texas Tech Burn Center, treated three burn victims: Dylon Gordon, Dawone Porter, and Amanda Gutierrez. He indicated that Gordon's leg burns were likely caused by a propane fire rather than a grease fire, citing the behavior of flammable fuels, the common location of burns on patients' lower bodies, and the uniformity and circumferential nature of the burns. He differentiated between accelerant burns, which result in quick and deep injuries with minimal smoke inhalation, and grease burns, which typically involve scalding and irregular burn patterns. Notably, Dawone Porter exhibited signs of smoke inhalation.

The defendants presented three categories of witnesses: those involved in the propane tank filling, eyewitnesses to the fire, and expert witnesses. George Veytia, a former stockholder in Border Restaurant Supply, testified that his company sold restaurant equipment but did not provide propane tanks with hot food tables. He claimed to be unfamiliar with the specific steam table involved in the incident and acknowledged that he did not know every piece of equipment sold by the company, which occasionally dealt in used items.

Eyewitness Danelle Ivey, a member of the 4-H Adult Leaders Association, reported that her group had used the same booth and equipment at an event for several years without detecting propane odors. She assigned Porter to make snow cones, emphasizing safety instructions regarding the fryer, and confirmed that the San Lorenzo Church played no role in the booth setup or equipment management.

Ivey denied any communication from Rita Porter regarding restrictions on Dawone's access to cooking equipment and suggested that if such a warning had been made, Dawone would have been limited to the preparation area. She acknowledged that children under fourteen were not permitted in the booth but did not inquire about Dawone’s presence, assuming Rita would have informed her. At the time of the fire, Ivey was outside the booth while Patty Gordon managed operations inside. She did not receive an ice cooler before the incident and reported hearing a strange “poof” sound followed by shouting as Jennifer Eveler handed Amanda Gutierrez to her. Ivey did not observe flames or feel pressure from the booth. Afterward, she contacted Randy and Shannon Pettigrew for support at the hospital. Ivey stated that no one mentioned a propane smell while she worked there and denied witnessing Armando Gutierrez interacting with ice, asserting her focus was on Amanda. She speculated Jennifer Eveler might have brought ice into the booth, but she did not confirm this. Ivey also noted that Rita Porter never indicated any cognitive conditions for Dawone. 

Jimmy Rogers, the county extension agent, confirmed that AgriLife issued rules for the 4-H program and retained authority to dismiss volunteers. He assessed the booth on Friday and deemed the children adequately supervised. Rogers generated an incident report based on interviews, noting that Eveler mentioned a flash of heat occurred when youth passed an ice chest over a grill. However, Rogers admitted he lacked firsthand knowledge of the fire since he was en route to Junction, Texas, at the time. 

Francis Paneral, another 4-H volunteer, testified he did not detect propane odors and waited for approval from authorities before moving anything at the scene. He also revealed that Alex Eveler, his nephew, did not smell propane during the festival and mentioned his mother speculated that ice might have contaminated the oil.

Eveler testified that he lit the pilot light twice over the festival weekend but clarified that the gold tank in Exhibit 5 was not the one he used. Father Ed Carpenter, the pastor of San Lorenzo Church, was involved in the festival planning but primarily deferred to committee members. After completing mass, he received a message about children being burned at the festival and rushed to the scene, only to find the booth empty. Carpenter expressed regret over the incident but believed that nothing could have been done to prevent it, especially regarding ice potentially falling into the oil. He noted a lack of investigation into safety measures, citing the festival's long history and the presence of emergency personnel. The planning committee lacked a safety committee, did not inspect propane equipment, and did not create a fire safety plan or enforce contract restrictions. Carpenter stated that if a propane leak caused the fire, he did not think the Diocese would bear responsibility.

Shannon Pettigrew, a volunteer with the 4-H Club, testified about her experience at the festival. Although she was not present on Sunday, she learned about the accident afterward and visited the hospital. She recounted that Amanda Gutierrez mentioned a need for ice, and while Dawone Porter attempted to bring ice into the booth, Gutierrez advised using an ice bucket instead. Pettigrew noted that after the ice was handed off, an explosion occurred, and Gutierrez experienced burns after liquid splashed on her from the grease. Pettigrew also relayed that Gutierrez's mother indicated that some ice might have fallen into the grease during the incident.

Pettigrew reported that from the 2009 fire until her May 2012 deposition, she only discussed the incident with her husband and had not witnessed any soap tests or been informed of anyone smelling propane. She believed that water from an ice bag leaked into the grease but clarified that no ice actually fell into the grease. Pettigrew recounted that Bryan Diller mentioned a teenager claimed Dawone Porter dropped water from an ice bag into the grease, though Diller did not identify the source of this information.

Expert testimony was provided by David Meyer, a consultant in the propane and natural gas industry, who was also a member of the NFPA 36 Technical Committee. Meyer explained that NFPA 58, which governs the storage of liquefied petroleum gases including propane and is legally adopted in Texas, outlines the responsibilities of container fillers. He concluded that the tank filler acted appropriately and noted that an ASME tank could be transported without being attached to a vehicle.

Jerry Lucas, the vice president of safety and technical training at Heritage Propane, discussed the tank-checking process prior to filling. Dr. Allen Eberhardt, a fire investigator and member of both the NFPA and the American Society of Mechanical Engineers, reviewed Dr. Huerta’s testing. Eberhardt indicated that, under high temperatures, the pressure in the tank would range from 175 to 200 PSI, while Huerta's tests only reached 100 PSI, deeming the use of an air compressor for testing inappropriate. He assessed sounds reported during the incident, concluding they were not characteristic of a propane fire but more indicative of a grease fire, explaining that loud noises can occur in flash fires due to surrounding structures. Eberhardt also tested the filler valve removed post-accident, stating it would seal at high pressures but leak at lower pressures.

Dr. Eberhardt, during cross-examination, acknowledged that he had not fully reviewed the depositions of witnesses present in the booth. He asserted that a properly functioning filler valve should not leak at any pressure and deemed a valve defective if it allowed outward flow. During initial testing, he observed outward flow from the filler valve at 53 PSI, which ceased once the pressure reached 100 PSI. He did not dismantle the valve for inspection and noted that grease fires typically do not explode or create loud noises, attributing any sounds to water being poured onto grease. Ultimately, he concluded that there were no issues with the tank or filler valve.

Dr. Scott Davis, the defense's final expert witness, described the fire at the festival as a flash fire rather than an explosion, citing a lack of overpressure or mechanical damage that would indicate an explosion. He attributed the fire to water or ice introduced into heated canola oil and refuted the possibility of a propane leak, pointing to tests and witness statements that contradicted such a cause. He emphasized that the presence of a flame from the regulator post-fire was due to overheating and that thermal damage observed indicated a grease fire, not a propane-related incident. On cross-examination, he explained an experiment where he introduced water into heated canola oil, producing a flame that would vent out of the booth's angled roof. He conceded that if the cooler had no ice or water, it could not have sparked an oil fire.

In rebuttal, the plaintiffs called Clarissa Gardea, who testified about her presence at the hospital with Rita and Dawone Porter following the explosion, having arrived after receiving a call about the incident.

Gardea testified that the only individuals in the room during the incident were herself, Rita Porter, Dawone Porter, and the nurses. She acknowledged a brief interaction with Shannon Pettigrew after Rita and Dawone had left but denied any confrontation. During the jury charge conference, the Families' counsel requested a negligence per se instruction regarding a supposed regulatory violation, which the trial court denied. They also sought a directed verdict to classify the plaintiffs as invitees of the Diocese, but this request was also denied, leading the court to submit the invitee versus licensee question to the jury.

In closing arguments, the Diocese's counsel suggested that other parties might have caused the injuries, which the Families contended improperly introduced the unavoidable accident doctrine. The defense argued that the Diocese and Heritage were not responsible for the events at the 4-H booth, emphasizing that the booth operators had control over their setup and operations. The defense implied that adults present in the booth were the ones responsible for ensuring safety, and the jury was tasked with determining liability based on the evidence presented. Following these remarks, the Families’ counsel objected, arguing that the defense had introduced an unpled defense of unavoidable accident, but the trial court overruled the objection.

Counsel for the Families requested to comment on the defense's failure to call expert witnesses Bures and Smith before rebuttal arguments, but the trial court denied this request. After deliberation, the jury returned a take-nothing verdict, making 41 findings. Key findings included:

1. **Negligence Findings**: The jury determined that the negligence of all listed defendants, including HERITAGE OPERATING, L.P., CATHOLIC DIOCESE OF EL PASO (SAN LORENZO CHURCH), and others, did not proximately cause any injuries.
   
2. **Control over Activity**: The jury found that the CATHOLIC DIOCESE OF EL PASO did not exercise control over the injury-causing activity beyond the right to start or stop it.

3. **Status of Individuals**: The jury classified ARMANDO GUTIERREZ, AMANDA GUTIERREZ, DYLAN GORDON, and DAWONE PORTER as licensees rather than invitees on the premises, indicating that they were present with permission but without an express invitation.

4. **Responsibility and Damages**: The jury assigned zero percent responsibility to all defendants and determined that the plaintiffs were entitled to zero dollars in damages across all claims.

Following the verdict, the Families moved for a judgment notwithstanding the verdict, which the trial court overruled, subsequently entering judgment based on the jury's findings. The jury's instructions regarding negligence standards differentiated between invitees and licensees, with specific criteria for establishing negligence for each category.

The Diocese failed to exercise ordinary care to protect the plaintiffs by not adequately warning them of a dangerous condition and not making that condition safe. The jury determined the Diocese was not negligent under the licensee standard. Following the expiration of the presiding judge's term, a new judge took over, prompting the Families to file a motion for a new trial. The new judge questioned the court's jurisdiction due to the time elapsed since the previous judgment, while the Families argued that the judgment was not final as it did not dispose of all parties and claims, necessitating further action to ratify settlements. The trial court granted a new trial, but this decision was vacated by the appellate court on mandamus, asserting the trial court had lost jurisdiction as the judgment was final and the plenary power had expired. 

The Families' appeal against the take-nothing judgment is categorized into four main challenges: the sufficiency of jury findings, improper remarks by the Diocese’s counsel during closing arguments, alleged errors in the trial court’s evidentiary rulings regarding expert testimony, and claims of improper exclusion of negligence per se theories based on regulatory violations. The appeal primarily focuses on factual sufficiency, placing a heavy burden on the Families to prove that the jury's negative finding is against the great weight of the evidence. The appellate court emphasizes the need to weigh all evidence and only set aside a verdict if the adverse finding is clearly wrong or unjust, maintaining a balance between respecting the jury's verdict and ensuring it is subject to review.

When a verdict is found to be factually insufficient, the appropriate remedy is to reverse and remand for a new trial, as established in Sw. Bell Tel. Co. v. Garza. Courts of appeals have final authority over factual questions, and their decisions are conclusive regarding these matters. However, the Texas Supreme Court retains the ability to review factual sufficiency determinations to ensure the correct standard of review was applied.

Heritage and the Diocese argue that the Families waived their appellate challenges to a take-nothing verdict by not separately objecting to the jury's no-damages finding. The court disagrees, suggesting that the precedent set in James v. Hudgins, which posits that failure to contest a no-damages finding renders liability issues harmless, may not hold as strongly today given changes in the Texas Rules of Appellate Procedure. Under these rules, a broad statement of an issue can encompass all related subsidiary questions.

The court notes that despite the lack of a specific challenge to the no-damages finding, the Families' detailed arguments regarding the merits of their case provide sufficient grounds for review. The Families' assertions about the victim's injuries indicate that their contention against the take-nothing verdict includes challenges to the no-damages finding. Furthermore, Heritage and the Diocese conceded that injuries occurred, with the trial primarily focused on causation rather than the existence of damages. Thus, the Families' appeal is not waived due to insufficient arguments regarding damages.

The court acknowledges the high threshold for successful factual sufficiency challenges but indicates that this case presents complexities worth examining, particularly regarding the nature of the fire that caused the injuries. The court intends to review the factual sufficiency of the jury’s verdict on its merits.

Ample evidence existed to indicate that the valve leaked under certain pressures; however, the jury’s verdict regarding Heritage must be upheld due to insufficient evidence to conclusively determine whether Heritage filled the tank in question. Diller claimed he filled the tank at Denman Propane, owned by Heritage, but Heritage lacked receipts to support this, and a Denman employee did not recognize Diller. The resolution of this matter hinges on witness credibility, which the jury is entitled to assess. Consequently, the decision regarding Heritage Propane is affirmed.

The situation concerning the Diocese is more complex, particularly regarding the issue of control over the premises. The Families argue that the jury’s finding of no control by the parish lacks factual support. Evidence shows the parish retained contractual control, including the ability to establish safety regulations and manage booths at the event, despite not overseeing every detail. The Diocese suggests it may evade liability by claiming it relinquished control to the 4-H Club, but it fails to adequately address the Families' argument regarding contractual control in its brief.

Moreover, the Diocese shifts its defense to assert that the fire was caused by the negligence of individuals in the booth rather than any fault on its part. Ultimately, the crux of the appeal centers on causation: if the fire was solely due to the leaking propane tank, the Families should prevail; if it stemmed from the negligence of the booth occupants or no party's negligence, the Diocese's verdict stands. The jury was instructed to find liability only if a party failed to exercise ordinary care that proximately caused the injuries.

Plaintiffs argue that San Lorenzo Church had control over the event leading to their injuries, which they attribute to a propane explosion. However, San Lorenzo contends that the true cause was the negligence of the 4-H volunteers and the Plaintiffs in mishandling ice in the 4-H booth. Evidence presented by San Lorenzo suggests that Plaintiffs’ actions, specifically dropping water into canola oil, were responsible for the injuries. Additionally, it was shown that the El Paso 4-H controlled the interior of the booth. Consequently, San Lorenzo asserts that the jury’s verdict aligns with the preponderance of evidence and should be upheld.

The Diocese's response primarily focused on proving that the fire was a grease fire rather than a propane fire, with minimal discussion on control over the booth. Three categories of evidence were considered at trial: eyewitness testimonies, expert tank safety evaluations, and medical testimony. Eyewitness accounts varied significantly, with conflicting descriptions of events during the fire. Most testimony from individuals inside the booth indicated nothing was passed over the fryer before the incident. 

The Diocese sought to challenge the Families’ claims of causation by referencing medical records that suggested the fire resulted from ice or water being dropped into grease, and through the testimony of Shannon Pettigrew, who reported that plaintiffs attributed the fire to this cause. However, the Families countered that the medical records were inconsistent, with different causes noted, and some records lacked clear attribution of statements. Amanda Gutierrez, a plaintiff, denied that she made certain claims recorded by medical personnel, further complicating the reliability of these records. The inconsistencies in the medical records and the unclear sourcing of information significantly diminished their value in establishing causation, necessitating a careful evaluation of all testimony, including that of Shannon Pettigrew, against the plaintiffs’ statements.

Pettigrew testified that Amanda claimed water spilled into grease before medical help arrived, while Yvonne Gutierrez stated Amanda mentioned ice causing the fire. Bryan Diller corroborated Amanda's claim about ice in the grease. However, Amanda later denied making statements to Pettigrew or Diller, and Yvonne Gutierrez refuted Pettigrew's account. The Families challenged Pettigrew's credibility, noting her potential bias as president of the 4-H Club. Testimony from Dylon Gordon indicated that an empty ice container was near the fryer before the fire, and evidence showed damage to a cooler, suggesting it came close to the fryer during the incident. The Families argued no water remained in the ice chest after it was emptied, but Diller expressed doubt about completely emptying it. The evidence presented is conflicting, primarily hinging on credibility. The jury's verdict cannot be overturned on factual insufficiency grounds based on eyewitness testimony alone. Expert testimonies were also conflicting, particularly regarding a defective propane valve and the nature of any leak. Disagreements included whether leaks were vapor or liquid, the rate of leakage, and conditions necessary for a fire. Despite these conflicts, expert and eyewitness testimonies did not overwhelmingly support one side. The Families' strongest support came from uncontested medical testimony by Dr. Griswold, which the Diocese did not counter, suggesting a favorable tilt towards the Families’ position in this aspect.

Dr. Griswold's testimony indicated that the burns on three plaintiffs' legs were more aligned with a propane fire rather than a grease fire, primarily due to the nature of the injuries—circumferential burns at a uniform depth consistent with propane exposure, lack of smoke inhalation injuries, and the behavior of propane as a heavier-than-air gas. This medical testimony is unchallenged and serves as the only objective evidence amidst conflicting accounts from other witnesses. The Diocese's explanation of the events, suggesting a grease fire, lacks sufficient support as it fails to align with the injuries sustained, and the second- and third-hand testimonies are unreliable. Additionally, witness accounts described a loud explosion and potential overpressure, further supporting the propane fire theory. The evidence as a whole indicates that the fire was likely caused by a propane leak from the ASME tank rather than negligence by volunteers or a grease fire. Although the case presents a close call regarding factual sufficiency, the appellate court finds that the jury's no-liability decision contradicts the greater weight of the evidence, which favors the Families’ position.

The Families' argument regarding causation is deemed valid, and the Diocese's defense is limited to this point, necessitating a reversal of Issue One in its entirety concerning the Diocese. Additionally, the trial court erred in submitting to the jury the classification of the plaintiffs as invitees or licensees; as a matter of law, the plaintiffs were invitees. The standard of review for jury instructions is based on whether the trial court abused its discretion, considering the pleadings, evidence, and jury charge comprehensively. An instruction must assist the jury, accurately reflect the law, and be supported by the pleadings and evidence. Legal sufficiency requires more than a scintilla of evidence. In premises liability cases, the duty of the premises owner depends on the status of the injured party. An invitee is someone present on the premises at the owner's invitation for mutual benefit, while a licensee is there by permission without such mutual benefit. The Diocese acknowledges that the El Paso 4-H Club was an invitee but disputes whether individual volunteers were also invitees. The Diocese argues that the volunteers were licensees since they were not specifically invited and were only preparing food for the Club's benefit. However, the court finds no significant legal distinction between the Club and its volunteers, indicating that the jury should not have been asked to determine their status. The Diocese's argument incorrectly separates the economic benefits accruing to the owner from the Club's status as an invitee.

The Club entered into a contract with the Diocese to collaboratively benefit from food and drink sales, utilizing volunteer labor. Both the Club and the Diocese profited from this arrangement, and the Diocese’s claim that its lack of knowledge about specific volunteers negated licensee status is contradicted by the contract language, which acknowledged the Club's use of staff. The contract implied that volunteers acted with the Diocese's knowledge and for its benefit, fulfilling the criteria for invitee status. The distinction between invitee and licensee is significant; an invitee requires proof that the property owner knew or should have known about a dangerous condition, while a licensee must show actual knowledge. The absence of proper jury instructions regarding this distinction potentially affected the outcome of the case, necessitating a new trial against the Diocese. The court also found that the Diocese’s counsel improperly introduced the concept of "unavoidable accident" in closing arguments, which was not part of the defense's pleadings, further undermining the trial's integrity. A new trial is granted against the Diocese, while the verdict against Heritage Propane is upheld.

The Families contend that opposing counsel improperly asserted that no party was responsible for the injuries, despite evidence indicating that responsibility existed. They argue that the jury's take-nothing verdict reflects the Diocese's misleading argument, which influenced the jury and led to an improper outcome. Heritage defends that the Diocese's counsel appropriately presented a no-liability argument without introducing an unpled unavoidable accident defense. 

Under Texas Rule of Civil Procedure 269(e), jury arguments must adhere strictly to the evidence and opposing counsel's arguments. Failure to comply may result in appellate reversal. To establish a claim of improper jury argument, a party must demonstrate that the argument was (1) improper, (2) not provoked, (3) preserved by objection, and (4) not curable by judicial instructions or withdrawal. Certain arguments, such as those appealing to racial bias or making unsupported accusations, may be deemed incurable without an objection. Even if an error is identified, reversal occurs only if the error likely resulted in an inappropriate judgment, assessed by weighing the likelihood of harm against the probability of proper proceedings. 

The text explains that an unavoidable accident is an event not caused by any party's negligence. This instruction informs the jury that they need not assign blame to either party. The issue arises when evidence suggests the injury was due to factors unrelated to the parties' negligence. Typical scenarios include inclement weather or circumstances involving very young children. The unavoidable accident doctrine serves as a rebuttal, requiring plaintiffs to negate the existence of an affirmative defense rather than acting as an alternative theory of liability.

The phrase "nobody was at fault" in the jury's deliberation improperly introduced an unavoidable accident theory, despite evidence suggesting negligence contributed to the fire. The Families argue that the trial evidence clearly indicates responsibility lies with Heritage, the Diocese, or both, and that the jury’s zero verdict implies they believed the incident was an unavoidable accident. However, Appellees counter that this verdict could also reflect the jury’s view that the plaintiff failed to meet the burden of proof. The court cites precedent allowing jurors to conclude an occurrence was not the defendant's fault without agreeing on the specific cause. The Families assert that closing arguments can create irreparable issues, but the cited case, Living Ctrs. of Tex. Inc. v. Penalver, is deemed inapplicable as it involved an argument that was inherently harmful due to its nature. The Texas Supreme Court emphasized that to prove an argument was incurable, it must be shown that the argument's nature, degree, and extent were so erroneous that corrective instructions could not mitigate its impact.

Jury argument is not generally subject to harmless error review when it undermines the impartiality, equality, and fairness of justice, as such harm extends beyond the litigants to the judicial system itself. Examples of such harmful arguments include those appealing to racial prejudice, personal attacks on parties or witnesses, and unsubstantiated accusations, such as witness tampering. In a cited case, the Texas Supreme Court found that a plaintiff's reference to "Nazi" to evoke emotional responses was extreme and unjustified, warranting a reversal due to obvious harm. In contrast, the current case does not present evidence of similarly inflammatory arguments that would require exemption from a harm analysis. Consequently, a harmless error analysis is applicable. The improper comment made by counsel and the adverse verdict alone do not demonstrate harm on the comprehensive record; it must be shown that the jury's verdict was more likely influenced by the improper comment than by the evidence, a standard that has not been met.

In addressing expert testimony issues, the Families raised three complaints regarding the trial court's rulings. First, they argued the court improperly prevented them from commenting on the defendants' failure to call two retained experts, which they contended was a reversible error. However, the court's denial was consistent with the rule that comments on a party's failure to call witnesses are only permissible under specific conditions. The Families also claimed the court erred by allowing defense experts to introduce previously undisclosed theories regarding flash fire acoustics and argued that certain demonstrative evidence should not have been admitted due to harmful error.

Comments on the failure to call a witness are permissible only when the uncalled witness possesses potentially adverse knowledge about a crucial disputed fact. Counsel cannot reference witnesses who only possess peripheral knowledge. If a witness has a connection to the opposing party that may result in bias or favorability, then comments regarding the opposing party's failure to call that witness are valid. In Brazos Graphics, the Tenth Court of Appeals found that the opposing party's failure to call a witness from an independent laboratory was not significant, as the laboratory was deemed neutral and operated under an arm's length relationship with the parties. In Texas Power, the failure to call an appraiser by the power company led to assumptions about unfavorable testimony; however, it was later revealed that the landowners had not called the appraiser due to a low valuation. This case also highlighted issues of potential bias since the appraiser had been retained by both parties at different times.

In the current context, the relationship between the Families and the experts hired by the Diocese and Heritage differs from the aforementioned cases, as the Families had no prior relationship with the experts. Although the trial court erred by not allowing comments on the defendants' failure to call their experts, this error does not meet the necessary harm standard for reversing the judgment. While the rule would allow comments on the failure to call experts, it restricts counsel from speculating on what the absent witness might have testified unless that testimony was previously entered into the trial.

Counsel for the Families argued that the jury could have been influenced by the testimony of two defense experts who believed the fires lasted only a few seconds, had it been admitted. However, under the absent witness rule, counsel could only suggest that the jury draw an adverse inference from the defense's failure to call these experts, which likely would not have significantly affected the jury's decision given the extensive conflicting expert testimony already presented. The Families had the option to call these witnesses via deposition but chose not to, ultimately failing to meet the harm standard for reversal of the decision.

Regarding the expert testimony issue, the Families contested the trial court's acceptance of Dr. Allen Eberhardt's acoustical testimony, arguing it was improperly admitted since he was not designated as an acoustics expert and had not disclosed such opinions prior to trial. Heritage, the defense, contended that this testimony was permissible as it rebutted the acoustical testimony from the plaintiffs' expert, Tim Dunn. The court reviewed the trial court’s admission decision for abuse of discretion and found that despite the lack of prior designation, Eberhardt's testimony was appropriate to counter Dunn's opinions, thus not constituting an abuse of discretion.

The trial court's decision to allow Dr. Eberhardt to testify on acoustics was upheld, as no abuse of discretion was found, and any potential error did not cause harm. Furthermore, the Families' objection to Dr. Scott Davis's demonstrative evidence was deemed too late to preserve error. Dr. Davis presented several videos illustrating simulated explosions, including examples of a diffuse fuel-air mixture igniting, flash fires, and the effects of explosions on various objects. The Families objected only after the videos were shown and did not request a running objection. Various simulations demonstrated the effects of explosions in different scenarios, including the impact of liquid propane release and the behavior of flammable clouds at petrochemical facilities. After Dr. Davis's presentations, the Families cross-examined him, raising specific objections during a break related to the videos shown and subsequently moved for a mistrial.

The Families argue that their objection to Dr. Davis' use of videos was timely because the defendants did not provide his file in advance of the deposition or trial. However, TEX.R.APP.P. 33.1 mandates that objections to evidence must be made when the evidence is presented, not afterward. Citing Wenco of El Paso/Las Cruces, Inc. v. Nazario, the court finds that the Families’ objection was not timely, as it was raised after a significant delay, and thus the issue was not preserved for appeal. 

In Issue Five, the Families assert that the trial court wrongly restricted them from presenting negligence per se evidence and arguments pertaining to three specific regulations: 1) 16 TEX.ADMIN.CODE. 9.135 regarding liquefied petroleum gas storage, 2) NFPA 101: Life Safety Code as adopted by Texas rules, and 3) 49 C.F.R. 180.205(a) concerning hazardous materials packaging. The court evaluates these regulations, beginning with the assertion that the trial court erred in denying a negligence per se instruction based on 16 TEX.ADMIN.CODE. 9.135. The court concludes that any error was harmless, explaining that negligence per se arises from a statutory standard rather than the traditional reasonable person standard. 

For negligence per se to apply, it must be established whether the plaintiff is within the statute's intended protection class and whether the injury aligns with the statute's intended prevention. The court notes that administrative regulations can serve as the basis for negligence per se, but further criteria must be assessed, including whether the statute solely defines the duty, clarifies required conduct, could impose liability without fault, would result in disproportionate damages, and if the injury directly results from a violation of the statute. The relevant regulation from the Railroad Commission concerning LP-Gas Safety Rules addresses unsafe containers and piping.

A licensee or their employees are prohibited from introducing LP-gas into containers or systems known to be unsafe or not compliant with regulations, specifically referencing NFPA 58 and Texas Administrative Code 16 TEX.ADMIN.CODE. 9.135. While the regulation outlines general care standards and prohibited conduct, it remains uncertain whether it qualifies as a standard for negligence per se or if its violation would lead to disproportionate damages. The court concluded that the standard for a negligence per se instruction was not met, and even if it were, the jury was adequately informed of the duty not to fill a defective tank through counsel's questioning and closing arguments. Consequently, the omission of such an instruction did not warrant reversal of the verdict.

Additionally, the Families argued that the trial court wrongly prevented the characterization of a 2006 National Fire Protection Association (NFPA) publication as "the law" during closing arguments, despite its adoption in Texas regulations. The Texas Commissioner of Insurance and the Railroad Commission of Texas have incorporated NFPA 101: Life Safety Code into the Texas Administrative Code. However, even if the court erred in this regard, the Families failed to demonstrate how this characterization would have significantly influenced the jury's deliberations, thus indicating no apparent harm from the trial court's decision.

Counsel for the Families referenced NFPA 101 during closing arguments, allowing the jury to consider its standards. However, it remains unclear whether referring to NFPA 101 as "the law" would have influenced the case outcome; thus, the judgment cannot be reversed on this basis, leading to the overruling of Issue Five, Part B. 

The Families also claimed the trial court erred in excluding evidence related to U.S. Department of Transportation (DOT) regulations governing hazardous materials cylinders, asserting that a DOT regulation applied to the ASME tank in question. Although the regulation mandates that each cylinder for hazardous materials must be authorized packaging (49 C.F.R. 180.205), any error in excluding this evidence was deemed harmless as it was secondary to the primary issues concerning the cylinder's age, condition, and whether Heritage filled it. Thus, Issue Five, Part C is overruled.

In Issue Six, the Families argued that the cumulative effect of the errors constituted reversible error. However, since the expert testimony issues were deemed meritless or waived, they were excluded from the cumulative harm analysis. After reviewing the remaining issues concerning closing arguments and jury instructions, it was determined that these errors alone did not warrant reversal. Consequently, the cumulative effect of any assumed errors, including the characterization of the accident and jury instruction failures, also did not meet the reversal standard, leading to the overruling of Issue Six.

The conclusion indicates that the jury's verdict against Heritage Propane was supported by sufficient evidence, with no reversible errors found. Conversely, the verdict against the Diocese was contrary to the evidence's weight, and the trial court made a reversible error by allowing the jury to consider the invitee/licensee question. Therefore, the judgment against Heritage Propane is affirmed, while the judgment against the Diocese is reversed and remanded for a new trial.