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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robles v Shoreside Petroleum, Inc. (08/31/2001) sp-5457

Robles v Shoreside Petroleum, Inc. (08/31/2001) sp-5457

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

GARY E. ROBLES,               )
                              )    Supreme Court No. S-8617
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-94-9755 CI
                              )
SHORESIDE PETROLEUM, INC.,    )    
and PETROLANE INCORPORATED,   )    O P I N I O N
d/b/a PETROLANE GAS, Soldotna,) 
Alaska,                       )
                              )    [No. 5457 - August 31, 2001]
               Appellees.     )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Michael L. Wolverton, Judge.


          Appearances:  Laurel J. Peterson and Kristi
Nelson Pennington, Law Offices of Laurel J. Peterson, Anchorage,
for Appellant.  Daniel T. Quinn and Gregory R. Henrikson, Richmond
& Quinn, Anchorage, for Appellee Shoreside Petroleum, Inc., and
Larry G. Berry, Robertson, Monagle & Eastaugh, Anchorage, for
Appellee Petrolane Incorporated.


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.


          BRYNER, Justice.
          FABE, Justice, concurring in part and
dissenting in part.


I.   INTRODUCTION
          Gary Robles, the operator of a Seward gas station, was
seriously injured when a propane tank he was filling for a customer
exploded. Robles sued Shoreside Petroleum, Inc., his propane
supplier, and Petrolane Incorporated, the wholesale propane
distributor, claiming (1) Petrolane and Shoreside negligently
trained him in the safe handling of propane; (2) Shoreside
negligently circulated dangerously old propane tanks in Seward,
including the tank that exploded in this case; and (3) Shoreside
negligently failed to warn him of the dangers associated with
filling these old tanks.  The superior court allowed the jury to
consider Robles's claim of negligent training but not his other two
claims.  We reverse, finding that it was error to exclude evidence
that Shoreside knew that unsafe propane tanks were circulating in
Seward, since this evidence supported a potentially viable claim
against Shoreside for failing to warn Robles of this danger. 
II.  FACTS AND PROCEEDINGS
          On October 6, 1993, a 100-pound propane tank exploded at
the Tesoro station in Seward, injuring Robles, who leased the
station, and Robert Gannaway, his customer.  While Robles was
filling the tank, the corroded bottom gave way under pressure.  The
last known inspection of this tank was in 1964, despite federal
regulations requiring that propane tanks periodically be
recertified.
          Robles sued Shoreside, his propane supplier, and
Petrolane, Shoreside's wholesale distributor, for negligently
training him in the safe handling of propane.  At his deposition
and at trial, Robles claimed that he received only ten minutes of
training on dispensing propane from Petrolane's employee Del
Hoagland; according to Robles, this training included no discussion
of inspection and certification requirements and only a general
warning not to fill excessively rusty and dented cylinders.
Hoagland, on the other hand, testified that he had extensively
trained Robles on the need to inspect used cylinders and to reject
them if the certifications were out of date.  Shoreside maintained
that it relied on Petrolane to perform dealer training, since
Petrolane installed the dealers' dispenser tanks and, in the past,
voluntarily trained dealers how to use them. 
          Robles also claimed that Shoreside was negligent for
filling uncertified tanks and failing to warn Robles that these
uncertified tanks were circulating in the Seward community. 
Federal regulations require that propane tanks be inspected and
recertified twelve years after manufacture and every five to seven
years thereafter. [Fn. 1]  Shoreside had the capacity to recertify
tanks. Nevertheless, Robles offered evidence that Shoreside's
employees regularly filled outdated tanks for the company's retail
customers. The superior court excluded the evidence as irrelevant,
confusing, and unfairly prejudicial.  The court acknowledged that
its ruling left Robles with only his negligent training claim and
effectively barred him from arguing his two alternative theories of
negligence: (1) that Shoreside had previously filled and
recirculated the outdated tank that caused his injury and (2) that
it had failed to warn Seward suppliers, including Robles, that it
was refilling outdated tanks and circulating them back into the
community.  But the court reasoned that these alternative theories
were not legally viable.
          The jury found that Petrolane and Robles were equally
negligent.  While the jury also found that Shoreside was negligent
in relying on Petrolane to provide Robles with adequate training,
it concluded that this negligence was not a legal cause of the
explosion.  Thus, the jury allocated half the liability for the
explosion to Petrolane and half to Robles.
III. DISCUSSION
     A.   Standard of Review
          On issues of law, this court exercises its independent
judgment, "adopt[ing] the rule of law that is most persuasive in
light of precedent, reason, and policy."[Fn. 2]  Because the court
in effect granted summary judgment on two of Robles's negligence
claims, we draw all reasonable inferences in his favor and affirm
only if there is no genuine issue of material fact. [Fn. 3]
     B.   A Jury Could Not Reasonably Find That Shoreside's 
          Filling Practices Directly Caused Robles's Injuries.

          Robles argues that the superior court erred in excluding
all evidence concerning Shoreside's practice of filling outdated
tanks, because the jury could reasonably find that Shoreside's
negligent failure to inspect or dispose of old propane tanks
directly caused his injuries -- that is, the explosion in this case
involved an outdated tank that Shoreside had previously filled. 
          Alaska applies a two-part test of legal causation in
negligence cases. [Fn. 4]  "First, plaintiff must show that the
accident would not have happened 'but for' the defendant's
negligence. Second, the negligent act must have been so important
in bringing about the injury that a reasonable person would regard
it as a cause and attach responsibility to it."[Fn. 5]  This
second issue, proximate cause, is normally a question of fact for
the jury, but it becomes a matter of law where reasonable minds
could not differ. [Fn. 6] 
          The superior court concluded that there was insufficient
evidence for a reasonable jury to find that Shoreside directly
caused Robles's injuries.  Gannaway, the owner of the tank that
exploded, could not recall if he had ever filled his tank at
Shoreside.  When the explosion occurred in 1993, Gannaway owned
four to six propane tanks, all of them rust-colored.  He testified
that he almost always filled them at the Chevron station in Seward
but that on one or two occasions before 1991 he had filled some
tanks at Shoreside.  Robles offered no other evidence to support
his theory of direct causation.  Even assuming that the excluded
evidence might have enabled the jury to find that Shoreside
regularly filled uncertified tanks in 1991, only speculation would
have allowed the jury to conclude that the tank in this case was
one of those that Shoreside had negligently refilled for Gannaway. 
And given the two years that elapsed from this negligent act to the
explosion, the jury had no basis for finding that the negligence
was "so important in bringing about the injury that a reasonable
person would regard it as a cause and attach responsibility to it."
[Fn. 7] 
     C.   A Jury Could Reasonably Find That Shoreside Was Negligent
in Failing to Warn Robles. 

          Robles next argues that the superior court erred in
excluding evidence to support his claim that Shoreside had
negligently failed to warn him of the danger of refilling outdated
propane tanks.  He contends that Shoreside had an affirmative duty
-- analogous to that imposed on product manufacturers and suppliers
under Restatement (Second) of Torts sec. 388 -- to warn him that it
was not complying with tank certification requirements.  In
excluding evidence of Shoreside's non-compliance, the superior
court apparently believed that Shoreside had no special duty to
warn dealers that outdated tanks posed a danger, apart from the
duty to train asserted in Robles's first theory of negligence.  But
we agree with Robles that the excluded evidence might have
established a separate duty to warn Robles of the danger. 
          Restatement (Second) of Torts sec. 388 provides:
          One who supplies directly or through a third
person a chattel for another to use is subject to liability to
those whom the supplier should expect to use the chattel with the
consent of the other or to be endangered by its probable use, for
physical harm caused by the use of the chattel in the manner for
which and by a person for whose use it is supplied, if the supplier

               (a) knows or has reason to know that the
chattel is or is likely to be dangerous for the use for which it is
supplied, and

               (b) has no reason to believe that those
for whose use the chattel is supplied will realize its dangerous
condition, and

               (c) fails to exercise reasonable care to
inform them of its dangerous condition or of the facts which make
it likely to be dangerous.

Alaska has not explicitly adopted sec. 388. [Fn. 8]  But in an
analogous area, this court has recognized a manufacturer's strict
liability for failure to warn if a product is defective because of
"misinformation or inadequate information about risks involved in
using the product or about minimizing or avoiding harm from such
risks."[Fn. 9]   
          While other jurisdictions have often declined to hold
suppliers of gasoline or propane liable for accidents caused by use
of these substances in defective equipment that the suppliers do
not own or control, courts have made an exception if the suppliers
have actual or constructive notice of the defective condition. [Fn.
10]  Thus, for example, a gas company that is aware that a service
line is dangerously rusted and corroded "must cause the line to be
repaired by the person whose duty it is to do so or must shut off
the gas at the street."[Fn. 11]  Similarly, a gas company has a
duty to warn a customer about a dangerous condition posed by the
use of an appliance owned by a customer if the company has
inspected the appliance or otherwise has notice of the dangerous
condition. [Fn. 12]  
          In applying Restatement (Second) of Torts sec. 388, the
Supreme Court of Iowa recently noted that this duty to warn is
based on the supplier's superior knowledge of the danger posed by
its product. [Fn. 13]  In two cases decided under New York law,
courts have specifically recognized that the question of whether
propane distributors owe a duty to warn of uses that pose non-
obvious dangers is a question for the fact-finder. [Fn. 14]  And
more recently, a third New York case recognized that a manufacturer
of a propane grill that exploded while in use in a semi-enclosed
area might have had a duty to warn of the danger, "even assuming
the accident was caused by a defect in a valve incorporated into a
propane tank neither of which [it] manufactured."[Fn. 15]
          Considering the hazardous nature of propane and the
forseeability of serious injury from its misuse in outdated tanks,
we find the policy rationale underlying these authorities
persuasive.  Here, Shoreside acted in two capacities -- as a
supplier to retailers like Robles and as a seller to its own retail
customers.  Federal law expressly required Shoreside, as a propane
seller, to inspect any tanks that it refilled; federal law also
expressly prohibited Shoreside from refilling outdated tanks. [Fn.
16]  We cannot say that these regulatory requirements or the
dangers posed by failing to comply with them would be obvious to
the typical propane user.  Of course, Robles, like Shoreside, was
a retail propane seller; as such, he had a duty to comply with
these requirements and was arguably the kind of "sophisticated"or
"knowledgeable"propane user who needed no extra warning to
recognize the dangers of filling uncertified tanks. [Fn. 17]  But
this characterization does not necessarily apply to Robles,
because, as the jury specifically found, he had not received
adequate training from Petrolane.  In its capacity as a supplier to
retailers, Shoreside potentially had better knowledge of the
general dangers; and in its capacity as a retail seller, it
arguably knew or should have known of an increased risk to Robles. 
          Thus, viewing the excluded evidence in the light most
favorable to Robles, the jury might have found that, in its
capacity as a retailer, Shoreside routinely violated federal
regulations by refilling outdated propane tanks and recirculating
them in dangerous condition into the community. [Fn. 18]  The jury
also might have found that, by circulating dangerous tanks into the
small community of Seward, Shoreside acquired constructive
knowledge that its dealers were exposed to increased risk by being
asked to refill the tanks that Shoreside improperly recirculated. 
Given Robles's inadequate training, the jury might have found that
the danger would not have been obvious to him.  These findings, in
turn, might have allowed the jury to conclude that, as a supplier,
Shoreside owed a duty to alert Robles to the heightened risk that
it had created. [Fn. 19]
          Because it was foreseeable that these tanks would later
be presented to other propane retailers, a jury could reasonably
find that Shoreside's failure to warn Robles of this danger was a
legal cause of his injuries.   Moreover, even if Shoreside owed no
independent duty to warn Robles of the dangers posed by refilling
uncertified tanks, evidence concerning Shoreside's unlawful
refilling practices might have altered the jury's finding that
Shoreside's negligent failure to ensure that Robles was adequately
trained was not a legal cause of his injuries. [Fn. 20]  We thus
conclude that it was error to exclude all evidence of Shoreside's
tank-filling practices.  The error requires a retrial on the issue
of Shoreside's negligent failure to warn and on the related issues
of causation and comparative fault. [Fn. 21]
     D.   Evidence of Habit Was Properly Excluded.

          To corroborate his claim that Petrolane and Shoreside had
negligently failed to provide him with adequate training, Robles
offered evidence intended to show that the companies also routinely
failed to train other retailers.  The superior court excluded this
evidence.  Robles claims that this ruling was error, arguing that
the excluded testimony was admissible under Alaska Evidence Rule
406 as evidence of a routine business practice. [Fn. 22]          
          But a trial judge "should possess the discretion usual in
this field of circumstantial evidence to exclude (evidence of
habit) if the habit is not sufficiently regular and uniform, or the
circumstances sufficiently similar, to outweigh the danger, if any,
of prejudice or confusion."[Fn. 23]  We are convinced after a
review of the record that the superior court did not abuse its
discretion in determining that the disputed evidence did not
establish a routine training practice and it was therefore
inadmissible under Rule 406. 
     E.   Evidence of Subsequent Remedial Measures Was Properly 
          Excluded.

          Robles next argues that the superior court should have
admitted evidence that Shoreside held safety training sessions with
Petrolane and took other remedial measures after the accident.  The
superior court granted Petrolane's motion in limine to exclude this
evidence under Alaska Rule of Evidence 407, which bars evidence of
subsequent remedial measures offered to prove negligence or
culpable conduct:
          When, after an event, measures are taken
          which, if taken previously, would have made
the event less likely to occur, evidence of the subsequent measures
is not admissible to prove negligence or culpable conduct in
connection with the event.  This rule does not require the
exclusion of evidence of subsequent measures when offered for
another purpose, such as impeachment or, if controverted, proving
ownership, control, feasibility of precautionary measures, or
defective condition in a products liability action.[ [Fn. 24]]

          Robles contends that the evidence of subsequent remedial
measures should have been admitted to demonstrate Shoreside's
control over training, and the feasibility of federal regulations
for ensuring the safety of propane tanks.  But because these issues
were never controverted at trial, Robles's argument lacks merit.
          Robles also contends that evidence of post-accident
training should have been admitted to impeach Petrolane's claim
that it had given Robles adequate training before the accident. 
But while it is an abuse of discretion to exclude evidence that
genuinely impeaches a witness, particularly on central facts in
dispute, the trial court must exclude evidence of subsequent
remedial measures that "reflects on the witness only by means of a
prohibited inference of negligence."[Fn. 25]  
          The adequacy of Robles's training was a central issue. 
Robles claimed that he was given a cursory, ten-minute training
that included no discussion of tank inspection or certification
requirements.  Petrolane's Hoagland, on the other hand, testified
that he gave Robles detailed training on the hazards of handling
propane, including the risks of filling old, uncertified tanks. 
The evidence of Shoreside's and Petrolane's post-accident training
measures would not have "genuinely impeached"Hoagland.  It would
only have reflected on his testimony through the forbidden
inference of negligence -- that is, by implying that the companies'
subsequent remedial measures amounted to an admission that they had
negligently failed to provide adequate pre-accident training. [Fn.
26]  Under these circumstances, the superior court did not abuse
its discretion in finding that the public policy concerns
underlying Evidence Rule 407 -- encouraging defendants to take
safety precautions after accidents -- outweighed the evidence's
marginal impeachment value. 
     F.   Robles's Punitive Damages Claim Was Properly Dismissed.
          Robles also argues that the superior court erred in
granting Petrolane's summary judgment motion on Robles's punitive
damages claim and in rejecting Robles's jury instruction on
punitive damages when the issue was revisited.  The superior court
found that Robles failed to make the showing of reckless
indifference sufficient to permit the issue to go to the jury.  In
reviewing grants of summary judgment, we use our independent
judgment. [Fn. 27]
          To recover punitive damages, "the plaintiff must prove by
clear and convincing evidence that the defendant's conduct was
outrageous, such as acts done with malice, bad motives, or reckless
indifference to the interests of another."[Fn. 28]  If there is no
evidence giving rise to an inference of actual malice, or reckless
indifference equivalent to actual malice, the trial court need not
submit the issue of punitive damages to the jury. [Fn. 29]
           Reviewing the record in the light most favorable to
Robles, we conclude that a reasonable jury could not find that
Petrolane and Shoreside acted out of malice or with reckless
disregard of Robles's safety.   Accordingly, the superior court did
not err in striking Robles's claim for punitive damages. [Fn. 30]
IV.  CONCLUSION
          This case is AFFIRMED in part; REVERSED in part; and
REMANDED to the superior court for retrial on the issue of
Shoreside's negligent failure to warn and on related issues of
causation and comparative fault.  Because there were no errors
relating to the jury's assessment of damages, that assessment
should not be disturbed.

FABE, Justice, concurring in part and dissenting in part.
          I join the opinion of the court in all respects except
for Part III.C.  As for that part, I disagree with the court's
holding that Shoreside may have had a duty to warn Robles of risks
created by Shoreside's practice of refilling outdated propane
tanks.  However, I agree with the court's conclusion that the
superior court erred in excluding all evidence of Shoreside's tank-
filling practices, because this evidence might have altered the
jury's finding that Shoreside's negligent failure to ensure that
Robles was adequately trained was not a legal cause of his
injuries.  Therefore, I concur and dissent in part.
          The court today imposes a novel duty on persons who
supply and maintain potentially dangerous products.  The court
declares that evidence of Shoreside's own refilling practices,
excluded by the superior court, "might have established a . . .
duty to warn Robles"of the danger of refilling outdated propane
tanks. [Fn. 1]  The court claims that Shoreside may owe this duty
because Shoreside improperly refilled certain propane containers in
violation of federal regulations, exposing dealers like Robles to
enhanced risks. [Fn. 2]
          This duty to warn is only vaguely defined.  First, the
court implies that it is the jury's role to determine if such a
duty even exists, stating that evidence presented by Robles "might
have allowed the jury to conclude that, as a supplier, Shoreside
owed a duty to alert Robles . . . ."[Fn. 3]  This delegation to
the jury of the responsibility to determine whether a duty exists
is contrary to our rule that "[t]he existence and extent of a duty
of care are questions of law for the court to determine."[Fn. 4] 
Also, the scope of the duty is unclear.  If Shoreside owed a duty
to warn Robles of its improper refilling practices, this implies
that Shoreside owed that same duty to all of its other dealers who
were exposed to the same risk. [Fn. 5]  It is unclear whether the
scope of this duty extends still further:  The opinion could be
read to establish a duty owed to all members of the community who
were exposed to these risks. [Fn. 6]
          The duty to warn created by the court is entirely new and
is not supported by the authorities on which the court's opinion
relies.  The court essentially relies on two sources to support its
imposition of a new duty to warn on Shoreside: (1) the Restatement
(Second) of Torts sec. 388, which imposes a duty to warn on certain
suppliers of chattels, and (2) the rule that a supplier of liquid
fuel may be liable for defects in containers or equipment that the
supplier does not use or control, if the supplier had knowledge of
the defect.  Neither of these authorities squarely supports the
creation of a duty to warn on Shoreside's part.
          First, neither of these sources of law supports the
imposition of a duty to warn on Shoreside, because there is no
evidence that the particular tank that exploded and caused Robles's
injuries was ever improperly refilled by Shoreside.  As the court's
opinion acknowledges, "Gannaway, the owner of the tank that
exploded, could not recall if he had ever filled his tank at
Shoreside."[Fn. 7]  Restatement (Second) of Torts sec. 388 by its
own
terms only imposes liability on suppliers of a chattel for injuries
caused by that chattel; and none of the decisions concerning
section 388 cited by the court's opinion supports the conclusion
that section 388 liability can exist in the absence of evidence
that the chattel causing injury was supplied by the defendant. [Fn.
8]
          The same is true for the decisions cited by the court's
opinion supporting the rule that suppliers of liquid fuel may be
liable for defects in containers or equipment used if the supplier
had knowledge of the defect.  In the decisions applying this rule
to impose liability on suppliers, the injured parties had alleged
and presented evidence that the supplier had an opportunity to
inspect or discover the defective condition, but failed to do so.
[Fn. 9]  These cases do not apply to the circumstances of this
appeal, since there is no evidence that Shoreside improperly
refilled the particular container involved in the accident.  If
such evidence is not required, the imposition of a duty to warn is
too broad because it makes a supplier responsible for issuing
warnings to customers who never came into contact with that
supplier's containers or equipment.
          Also, as the court's opinion acknowledges, suppliers are
liable under this rule only if they have "actual or constructive
knowledge"of the defect. [Fn. 10]  However, courts considering the
duty to warn under section 388 have required that the actual or
constructive knowledge be of the particular defect that caused the
injury. [Fn. 11]  Indeed, in the cases relied on by the court's
opinion in which liability was imposed or a possible duty to warn
was found, the defendant had actual or constructive knowledge of
the particular defect that caused the injury. [Fn. 12]  None of
these authorities suggests that liability could exist in the
absence of such knowledge.  The court's opinion claims that there
was evidence that Shoreside had constructive knowledge of the
"increased risk"to which Robles was exposed, because Shoreside
knowingly recirculated improperly refilled propane tanks into the
Seward community. [Fn. 13]  However, this constructive knowledge of
"increased risk"is not the same thing as knowledge of the actual
defect that caused the injury -- the defect in Gannaway's tank --
and the court's opinion presents no authority that supports the
proposition that liability should be imposed when the defendant has
no constructive knowledge of the defect that caused the injury.
          Finally, a decision by the Hawaii Supreme Court, Acoba v.
General Tire, Inc., [Fn. 14] also supports the proposition that no
duty to warn should be created here.  The court's attempt to
distinguish Acoba is not convincing.  In Acoba, a tire repairman
died as a result of a tire explosion caused by a defect in the rim
assembly. [Fn. 15]  The repairman's wife sued, among others, the
tire manufacturer, General Tire, claiming that it "negligently
failed to warn [the repairman] of the dangers of explosive
separation of tire rim and lock ring."[Fn. 16]  The Hawaii Supreme
Court noted the principle that "a manufacturer owes a duty to warn
regarding its own product, not regarding products it did not
produce, sell, or control."[Fn. 17]   Because General Tire "did
not produce, sell, or have control over the production of the
subject rim assembly,"the court affirmed summary judgment in favor
of General Tire, noting that "General Tire [has no] duty to warn of
the dangers of Firestone's rim and lock ring simply because the
tire [is] compatible with Firestone's product."[Fn. 18]
          The court's opinion in this case attempts to distinguish
Acoba by claiming that propane is an "inherently dangerous
product,"while a tire is not. [Fn. 19]  This distinction, even if
true, is irrelevant, because without special handling and
maintenance, both propane and the tire in Acoba have the potential
to cause injury and death, as evidenced by the accidents in this
case and Acoba.  The court also claims that "unlike the
manufacturers in Acoba, Shoreside exercised significant control
over the defective product,"and that there was evidence that
Shoreside's conduct "enhanced the risk of injury."[Fn. 20] 
However, as already noted, Robles presented no evidence that
Shoreside exercised any control at all over the defective product,
Gannaway's tank. [Fn. 21]  In Acoba, the court noted that the
plaintiff "submitted no evidence to show that the tire or the inner
tube failed during the accident or created the alleged defect in
the rim assembly that caused it to explode."[Fn. 22]  Similarly,
because Gannaway testified that he "could not recall if he had ever
filled his tank at Shoreside,"[Fn. 23]  Robles presented no
evidence to show that Shoreside's conduct had anything to do with
the defective tank at all.
          Because the duty to warn imposed by the court's opinion
is ill-defined and not supported by authority, I dissent from the
court's holding that evidence of Shoreside's tank-filling practices
was admissible as relevant to a duty to warn on Shoreside's part.




                            FOOTNOTES


Footnote 1:

     See 49 C.F.R. sec. 173.34 (1991); see also National Fire
Protection Association safety standard 58 sec. 4-2.2.3 (1989).


Footnote 2:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979); see also
State, Dep't of Revenue v. Gerke, 942 P.2d 423, 425 (Alaska 1997).


Footnote 3:

     See Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1086
(Alaska 1989).


Footnote 4:

     See Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 1039
(Alaska 1996).


Footnote 5:

     Id.


Footnote 6:

     See Dura Corp. v. Harned, 703 P.2d 396, 406 (Alaska 1985).


Footnote 7:

     Maddox, 925 P.2d at 1039.


Footnote 8:

     See Maddox, 925 P.2d at 1036; see also Saddler v. Alaska
Marine Lines, Inc., 856 P.2d 784, 788 (Alaska 1993).


Footnote 9:

     Prince v. Parachutes, Inc., 685 P.2d 83, 87 (Alaska 1984)
(quoting Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 878 n.15
(Alaska 1979)).


Footnote 10:

     See, e.g., Skelly Oil Co. v. Holloway, 171 F.2d 670, 674 (8th
Cir. 1948); Doxstater v. Northwest Cities Gas Co., 154 P.2d 498,
504 (Idaho 1944); Clay v. Butane Gas Corp., 39 N.W.2d 813, 820
(Neb. 1949); Caldwell v. Morrison, 82 S.E.2d 86, 89 (N.C. 1954);
Price v. MacThwaite Oil & Gas Co., 61 P.2d 177, 179 (Okla. 1936);
Reeder v. Western Gas & Power Co., 256 P.2d 825, 828 (Wash. 1953);
see also 41 A.L.R. 3d 782, 790-91 (1972).


Footnote 11:

     Ambriz v. Petrolane, Ltd., 319 P.2d 1, 6 (Cal. 1957) (quoting
24 Am. Jur. Gas Companies sec. 32).


Footnote 12:

     See Hanlon v. Lake, 648 N.E.2d 26, 28 (Ohio App. 1994).


Footnote 13:

     See Lamb v. Manitowoc Co., 570 N.W.2d 65, 68 (Iowa 1997).


Footnote 14:

     See Parsons v. Honeywell, Inc., 929 F.2d 901, 906-07 (2d Cir.
1991) (reversing summary judgment in favor of the propane gas
distributor because "district court erred in reaching the legal
conclusion that Northern had no duty whatsoever to provide any
warnings relating to the use of its product"); Lancaster Silo &
Block Co. v. Northern Propane Gas Co., 427 N.Y.S.2d 1009, 1015-16
(N.Y. App. 1980) (holding that the trial court erred when it
refused to provide a jury instruction regarding whether the propane
distributor had a duty to warn); see also Rogers v. Sears, Roebuck
& Co., 701 N.Y.S.2d 359 (N.Y. App. Div. 2000) (it is a jury
question whether the propane grill manufacturer (Sears) owes a duty
to warn, even if the accident was caused by defective products
attached to the propane tank that Sears did not manufacture).


Footnote 15:

     Rogers, 701 N.Y.S.2d at 360.


Footnote 16:

     Title 49 of the Code of Federal Regulations provides that
"[n]o person may charge or fill a cylinder"unless the cylinder
complies with federal regulations, which include standards for
testing, date stamping, marking, and packaging.  49 C.F.R.
sec. 173.34(a)(1) (1999). "A cylinder that leaks, is bulged, has
defective valves or safety devices, bears evidence of physical
abuse, fire or heat damage, or detrimental rusting or corrosion,
must not be used unless it is properly repaired and requalified."
Id.  A propane cylinder must be inspected and date-stamped no more
than twelve years after manufacture.  See 49 C.F.R.
sec. 173.34(e)(1)-(11), (13), (15) (1999).  If the tank is
requalified by visual
inspection, the tank must be qualified again every five years.  See
49 C.F.R. sec. 173.34(e)(10) (1999).  If the cylinders are
hydrostatically re-tested, longer grace periods apply.  See 49
C.F.R. sec. 173.34(e)(1) (1999).


Footnote 17:

     See, e.g., Restatement (Second) of Torts sec. 388, cmt. k; 63A
Am. Jur. 2d Products Liability sec. 1163-64 (1997); cf. Freeman v.
United Cities Propane Gas of Georgia, 807 F. Supp. 1533, 1537-39
(M.D. Ga. 1992) (discussing duty to warn under Restatement (Second)
of Torts sec. 388, cmt. n, where propane retailer is "learned
intermediary").


Footnote 18:

     The affirmative duty imposed by the federal regulations
distinguishes Shoreside's situation from that considered in Acoba
v. General Tire, Inc., 986 P.2d 288 (Haw. 1999), where the Hawaii
Supreme Court declined to impose a duty to warn on the
manufacturers of non-dangerous products -- auto tires and inner
tubes -- that became dangerous "simply because"they were used in
conjunction with a defective rim that those manufacturers did not
produce, distribute, or control.  Id. at 305.  In contrast to the
tire and inner tube manufacturers in Acoba, Shoreside sold an
inherently dangerous product, not an otherwise safe product that
became dangerous "simply because"it was compatible for use with a
defective product.  See Fickes v. Petrolane-Alaska Gas Serv., Inc.,
628 P.2d 908, 912 (Alaska 1981) (propane is inherently dangerous
product and requires degree of care commensurate with that danger). 
Moreover, unlike the manufacturers in Acoba, Shoreside exercised
significant control over the defective product.  Because of
propane's inherently dangerous properties, federal law requires
propane to be kept in certified containers.  Applicable regulations
gave Shoreside actual control over any empty container that its
customers asked it to fill and affirmatively required Shoreside to
inspect these empty containers and refrain from filling them if
they were outdated or defective.  See supra note 16.  And finally,
in opposition to the evidence in Acoba, which failed to show that
the manufacturers' conduct or products enhanced the risk of injury
at issue, see Acoba, 986 P.2d at 305, the excluded evidence showing
Shoreside's violation of the federal regulations, when viewed in
the light most favorable to Robles, might have permitted the jury
to conclude that Shoreside appreciably contributed to the risk that
resulted in Robles's injuries.


Footnote 19:

     Contrary to the dissent's suggestion that this opinion
"implies that it is the jury's role to determine if such a duty
even exists,"Dissent at 18, the jury does not decide when a duty
should exist but decides only if the facts that give rise to a duty
exist.


Footnote 20:

     To this extent, we note that Shoreside's alleged conduct of
unlawfully filling uncertified tanks and allowing them to be
returned to circulation might be likened to the conduct of a
distributor of defective products.  See, e.g., Restatement (Third)
of Torts: Products Liability sec. 4 ("In connection with liability
for
defective design or inadequate instructions or warnings: (a) a
product's noncompliance with an applicable product safety statute
or administrative regulation renders the product defective with
respect to the risks sought to be reduced by the statute or
regulation; . . . .").  


Footnote 21:

     We see no reason to disturb the jury's determination on the
issue of overall damages. 


Footnote 22:

     We review appeals from exclusions of evidence for abuse of
discretion.  See Adams v. City of Tenakee Springs, 963 P.2d 1047,
1050 (Alaska 1998).  Abuse of discretion is found "only when we are
left with a definite and firm conviction, after reviewing the whole
record, that the trial court erred in its ruling." Id. (quoting
Dura Corp. v. Harned, 703 P.2d 396, 409 (Alaska 1985)).


Footnote 23:

     Farnsworth v. Steiner, 601 P.2d 266, 271 (Alaska 1979)
(quoting Charles McCormick, Law of Evidence sec. 195, at 463 (2d
ed.
1972)).


Footnote 24:

     Alaska R. Evid. 407 (emphasis added).


Footnote 25:

     Agostinho v. Fairbanks Clinic Partnership, 821 P.2d 714, 716
(Alaska 1991) (quoting Jack B. Weinstein and Margaret A. Berger, 2
Weinstein's Evidence  407[05], at 407-35 (1990)).


Footnote 26:

     Petrolane and Shoreside did not assert that the pre-accident
training provided to Robles was as comprehensive as the post-
accident training, only that it comported with industry standards
and was not negligent.  Hoagland also never compared his training
of Robles with the post-accident training.


Footnote 27:

     See DeNardo v. GCI Communication Corp., 983 P.2d 1288, 1289
(Alaska 1999).


Footnote 28:

     Chizmar v. Mackie, 896 P.2d 196, 210 (Alaska 1995) (quoting
Lee Houston & Assocs. v. Racine, 806 P.2d 848, 856 (Alaska 1991)).


Footnote 29:

     See Alyeska Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767, 774
(Alaska 1982).


Footnote 30:

     Our disposition of other issues makes it unnecessary to
address Robles's claim that the superior court erred in entering a
final judgment that incorporated Gannaway's pre-trial settlement
agreement.  Robles has also challenged the exclusion of evidence
showing that Seward dealers were generally unaware of date stamp
requirements.  But we consider this argument to be inadequately
briefed, because Robles fails to specify what evidence was
erroneously excluded.  See Pieper v. Musarra, 956 P.2d 444, 446
(Alaska 1998).



                FOOTNOTES (Concurrence / Dissent)


Footnote 1:

     Slip Op. at 6.


Footnote 2:

     See id. at 9-10.


Footnote 3:

     Id. at 11.


Footnote 4:

     Bolieu v. Sisters of Providence in Washington, 953 P.2d 1233,
1235 (Alaska 1998) (quoting Beck v. State, Dep't of Transp. & Pub.
Facilities, 837 P.2d 105, 109 (Alaska 1992)).


Footnote 5:

     See Slip Op. at 11.


Footnote 6:

     See id. at 10-11.


Footnote 7:

     Id. at 5.


Footnote 8:

     See Lamb v. Manitowoc Co., 570 N.W.2d 65, 68 (Iowa 1997)
(declining to impose section 388 liability on manufacturer of crane
involved in injury because manufacturer had no notice of dangerous
condition); Lancaster Silo & Block Co. v. Northern Propane Gas Co.,
427 N.Y.S.2d 1009, 1015-16 (N.Y. App. 1980) (ordering trial on
issue of whether supplier of portable propane cylinder had duty to
warn under section 388).


Footnote 9:

     See Skelly Oil Co. v. Holloway, 171 F.2d 670, 674, 679 (8th
Cir. 1948) (defendant's inspection failed to reveal leak in gas
line that caused injuries); Ambriz v. Petrolane, Ltd., 319 P.2d 1,
6-7 (Cal. 1957) (defendant failed to make proper inspection that
would have revealed leak in gas line that caused injuries); Clay v.
Butane Gas Corp., 39 N.W.2d 813, 820-22 (Neb. 1949) (defendant
failed to inspect or discover conditions of butane gas pipes and
tank that caused injuries); Reeder v. Western Gas & Power Co., 256
P.2d 825, 828-29 (Wash. 1953) (defendant failed to inspect pipe
coupling that caused injuries).


Footnote 10:

     Slip Op. at 7-8; see Reeder, 256 P.2d at 828-29; Ambriz, 319
P.2d at 5-6; Hanlon v. Lake, 648 N.E.2d 26, 28 (Ohio App. 1994);
Lamb, 570 N.W.2d at 68.


Footnote 11:

     See Downs v. Panhandle Eastern Pipeline Co., 694 N.E.2d 1198,
1208 (Ind. App. 1998) (no section 388 liability, in part because
there was no evidence that the defendant "had either actual or
constructive knowledge of the leaking pipe that caused the gas
explosion"); Jones v. Hittle Serv., Inc., 549 P.2d 1383, 1391 (Kan.
1976) ("[T]he duty to warn arises only when the supplier knows or
has reason to know that the chattel is or is likely to be dangerous
for the use for which it is supplied.  None of the defendants here
knew or had reason to know that the propane gas would be piped
through a leaky line and from there filter through the earth to a
place where it might collect.") (quotation and citation omitted).


Footnote 12:

     See Skelly Oil Co., 171 F.2d at 674 (gas supplier assumes duty
of reasonable care when supplier receives notice of defects in
customer's gas lines and supplier undertakes to inspect the
defects); Ambriz, 319 P.2d at 5-6 (gas company has duty to inspect
particular site with reasonable care when company has actual or
constructive notice of defects in the gas system at that site);
Clay, 39 N.W.2d at 820-22 (gas company has duty to inspect
customer's gas system where company has "knowledge of a dangerous
condition"there); Reeder, 256 P.2d at 828-29 (gas company
installing gas system may have a duty to inspect if the company has
"actual or constructive knowledge of leaks in the system").


Footnote 13:

     See Slip Op. at 10-11.


Footnote 14:

     986 P.2d 288 (Haw. 1999).


Footnote 15:

     See id. at 292.


Footnote 16:

     Id. at 304.


Footnote 17:

     Id. at 305 (emphasis in original).


Footnote 18:

     Id.


Footnote 19:

     Slip Op. at 10 n.18.


Footnote 20:

     Id.


Footnote 21:

     See id. at 6.


Footnote 22:

     986 P.2d at 305.


Footnote 23:

     Slip Op. at 5.