Western Gas Propane Gas Recalling

The Western Gas had made a recall for the inspection of its Propane Gas because of possible fire and burn hazards. The product, Propane (LP) gas, whose recall number is 18-073, had been recalled on 28th December, 2017 for repair or replacement since the company suspected that the gas may not be having sufficient levels of odorant for alerting consumers in case there is gas leakage. The recall involves only propane tanks that were sold before November 2017 (Consumer Product Safety Commission, 2018). The remedy proposed in the recall is for consumers of the propane gas to contact the Western Gas or their suppliers to arrange for free inspection if their gas had been affected. Those who smell faint odor of the gas are also expected to vacate their building immediately and contact 911.

Liability for negligence

Negligence claim is usually base on the assumption that it is the role of the manufacturer or supplier of a product to provide duty of care to those using the product. In cases where the product has potential “danger” or may cause harm during usage, the manufacturer owes duty of care to every individual that may be affected (Turner, Gamble, Trone, & French, 2017). Various forms of negligence may be noted from the manufacturer including: failure to have a successful manufacturing process, thus, creating a defective product; failure to consider the accurate design of the product which may be associated with insufficient research; failure to conduct effective tests of a product; failure to acknowledge and inform uses about possible dangers of the product; and failure to recall the product or issue warning about the possible dangers. In the case study, if Western Gas could have forgotten to recall the propane gas or inform the consumers of the possible dangers, then this could have resulted in negligence; thus, they could have been liable to any harm noted among the purchasers (Consumer Product Safety Commission, 2018).

Duty of care

In law, “duty of care” refers to the responsibility of an individual or a business to be reasonably careful while dealing with other parties. The duty of care existing between two people or businesses is determined by their relationship. In the case study, the manufacturer of the propane gas has the duty of care to the gas consumers who purchase the product. The duty of the company involves making the product reasonably safe for use as well as provision of warning in case there are possible dangers resulting from the product usage (Goldberg, Sebok, & Zipursky, 2016). In most cases, the duty of care requires an individual to act as a “reasonable person.” The tort law measures the actions of a real person by matching up such actions to what would have been done by the imaginary reasonable person. The “reasonable person” usually pays careful attention and acts in a manner to avoid any harm or danger. As such, in a tort case, actions of the defendant are found negligent if they fail to live up to the standards of a reasonable person’s actions (Goldberg, Sebok, & Zipursky, 2016). In the case study, the Western Gas Company has considered a recall after realization of the possible harm that the propane gas product would cause. Thus, the company is considered to be responsible by owning up to its “duty of care.”

Breach of duty of care (standard of care)

Standards of care refer to the requirements or guidelines through which the conducts of a defendant are measured to determine whether the defendant breached a particular duty. In a court of law, reasonable person standard has always been considered the objective standard of determining which manner one could have acted in a circumstance, thus, defining the act as unreasonable or proper (Goldberg, Sebok, & Zipursky, 2016). By neglecting the stands of care, an individual would be found to be liable to any form of injury resulting from a given situation, thus, causing a breach of duty of care.

A breach of duty of care occurs when a defendant intentionally or unintentionally fails to meet the standards of care of a particular scenario depending on the law. Once it is evident that the defendant owed the plaintiff a duty of care, the latter is expected to demonstrate that the defendant actually beached his/her duty which resulted in harm or injury (Goldberg, Sebok, & Zipursky, 2016). Establishing a breach, therefore, involves three elements that must be satisfied: the defendant was aware of the risk, also known as “reasonable foreseeability; there was no insignificant risk; and that in the case of a reasonable person, precautions could have been taken against the risk. In the case of Western Gas, it is evident that the company has not breached its duty or would not have done so in case an accident occurred. The company has taken efforts to recall against the product which may be hazardous to the users.

Causation

The Civil Liability Act posit that causation involves consideration of negligence as the sole condition for harm, and that the resulting injury is within the defendant’s scope of liability. There are two types of causation: actual and proximate. Actual causation is a question of fact; i.e. there must be a direct link between the alleged defendant’s negligence and the resulting harm of the plaintiff (Steel, 2015). Also known as “cause in fact,” the actual cause is determined by “but for” test which considers if the injury would not have happened if not for the negligence of the defendant. It, therefore, considers the minimum requirements that must be met by a particular action to qualify as negligence that result in the injury incurred by the plaintiff. Proximate causation, on the other hand, relates to the scope of the responsibility of the defendant in regards to the negligence case (Steel, 2015). The defendant would only be considered the cause of injury or harm if he had foreseen the possible effects of his actions.

Using the “but for” test, Western Gas would be found liable to any accident that results from gas leakage. With enough sensible odorant, consumers would be able to recognize gas leakage; however, without issuance of precaution or recall, the consumers would be greatly exposed to accident risks, which would be “but for” the company (Turner, Gamble, Trone, & French, 2017). In regards to the proximate causation, the consumers of Western Gas must be able to prove that the company had foreseen the possible harm that may result from the inadequate odorization.

Actual injury

The actual injury is the form of physical injury to an individual or property that results from a negligence cause, and as such a legally recognized harm. Although it might be evident that the defendant failed to consider reasonable care, the resulting injury should be measurable or recognized by law. The real injury may result in the actual damages by the defendant to the plaintiff who owes the duty of care (Turner, Gamble, Trone, & French, 2017). In the presented case, any accident by the consumers using Western Gas product may result in actual injury such as burns or loss of property as a result of fire. In such a phenomenon, it will be the role of the consumer to file for real damage in order to be compensated by the company.

Defense to negligence

The common defenses to claims of negligence include: contributory and comparative defenses. In contributory negligence, the defendant attempts to show negligence on the part of the plaintiff as a causation of the harm. The case holds when a plaintiff conducts himself/herself in standards that undermine his/her protection, thus, causing harm. Western Gas would use this form of defense if the consumers had suffered injuries after the recall and did not take any action. In this case, the consumers would be considered negligent as they assumed to remedy the gas leak risk.

Comparative negligence involves the consideration of fault at the plaintiff’s side, which results in the reduction of the percentage of recovery. In case the plaintiff has more fault than the defendant, then the courts bar the plaintiff from accessing any form of recovery (Turner, Gamble, Trone, & French, 2017). The common comparative forms include: Pure in which defendant awards a percentage of injury suffered by the plaintiff; modified negligence which results in the award of injury if the negligence of the plaintiff is same as that of the defendant; and slight-gross negligence which results in the damage compensation if defendant’s negligence is “gross” while that of plaintiff is “slight” (Ogden & Hylton, 2016). This form of defense may apply if consumers of gas at the company were aware of the risks and still became negligent of considering precautions. In an incident where one of the consumers failed to appropriately lock the gas and later results in fire outbreak, this would be considered a “gross” negligence which may result in zero compensation.

Consumer protection statute

A fundamental law that has been put in place to protect the users of goods and products is the Consumer Product Safety Act (CPSA) which was enacted in 1972 which establishes the need to develop and ban standards that ensure goods are safe for consumption (Howells & Weatherill, 2017). Under the Act, an agency is created which create safety standards to prevent risks related to product consumption (Turner, Gamble, Trone, & French, 2017). The act further prohibits substandard products and permit recalls if products are detected to be hazardous. The Western Gas case is, thus, covered by the Act which provides for recalling of goods which seem to pose danger to the users.

References

Consumer Product Safety Commission (2018). Western Gas Recalls to Inspect Propane Gas due to Fire and Burn Hazards. https://www.cpsc.gov/Recalls/2018/Western-Gas-Recalls-to-Inspect-Propane-Gas-Due-To-Fire-and-Burn-Hazards

Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress. Wolters Kluwer law & business.

Howells, G., & Weatherill, S. (2017). Consumer protection law. Routledge.

Ogden, B. G., & Hylton, K. N. (2016). Incentives to Take Care Under Contributory and Comparative Fault.

Steel, S. (2015). Proof of causation in tort law (Vol. 120). Cambridge University Press.

Turner, C., Gamble, R., Trone, J., & French, B. (2017). Business law for managers. Pyrmont, N.S.W: Thomson Reuters (Professional) Australia.