Hall v. Midwest Bottled Gas Distributors, Inc. , 1975 Ky. LEXIS 30 ( 1975 )

STERNBERG, Justice

(dissenting).

The heating unit was installed by Midwest in the bull-pen area of the jail in 1958, where it remained without disturbance or relocation until the explosion in June 1968. No question has been raised as to the expertise of the representatives of Midwest or their knowledgeability in the installation, servicing, or caring for LP gas equipment. Midwest has been charged in both the Hall case and the Gilbert case with negligence in the installation and servicing of the gas system. Additional charges have been made by Hall that Midwest also was negligent in maintaining, locating, repairing, handling, use, and design of the system.

The trial court found that there was no genuine issue of any material fact existing as to any negligence on the part of Midwest and dismissed it. This action was affirmed by a majority of this court.

The obligation of Midwest in the installation of the heating unit in the county jail is different from its obligation in installing a heating unit in a person’s private residence. The responsibility of Midwest should be correlated with the location of and the use to which the heating unit was to be put. A higher duty rests on Midwest in the installation, servicing, maintaining, locating, repairing, and handling of the heating unit in the bull-pen area of the jail than in a private residence.

In Fields v. Western Kentucky Gas Company, Ky., 478 S.W.2d 20 (1972), the court established the duty of a gas supplier to be as follows:

“ * * * The defendant gas company is generally held to the standard of ordinary care, provided that care is exercised with regard to the dangerous character of the commodity transported through the company’s pipes. * * *”

This duty is further defined in Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539 (1956), where this court said:

“Foresight or reasonable anticipation is the standard of diligence, and precaution a duty where there is reason for apprehension of danger. * * *”

The facts in this case indicate that Midwest chose to locate the heating unit within the bull-pen area and to use easily breakable copper tubing to supply gas to the unit. Also, Midwest failed to relocate the unit or replace the breakable pipe at any time following the initial installation.

Arguably, it was foreseeable that the system, if located in the bull-pen area, would be subjected to abusive treatment by the inmates. A jail is where society incarcerates disorderly persons and those who may be expected to act in an unruly manner. Conceivably, negligence could be found by a jury in the failure of Midwest to locate the unit in a place which could not be reached by the inmates or in the failure to use unbreakable piping. It may very well be that a jury would not believe that the evidence demonstrates negligence by Midwest. However, that is a question for jury determination. On the present record, it cannot-be said that no reasonable man could believe otherwise.

So much of the opinion as discusses the legal principles applicable to the question of foreseeability as it applies to the jailer and assistant jailer applies with equal force to Midwest.

In addition to reversing as to the jailer and assistant jailer, I would also reverse as to Midwest.

JONES and LUKOWSKY, JJ., join in this dissent.