Richard T. Lyzhoft, individually, and Richard T. Lyzhoft, as father and natural guardian of Jeremiah R. Lyzhoft, Appellant (A12-2237), Respondent (A12-2238),
Waconia Farm Supply, Respondent (A12-2237), Appellant (A12-2238), Brian T. Donahue, individually and d/b/a Donahue Mechanical, Inc., Respondent, Thomas M. Donahue, individually and d/b/a Donahue Mechanical, Inc., Respondent.
Carver County District Court File No. 10-CV-11-951
Curtis D. Smith, Moss & Barnett P.A., Minneapolis, Minnesota (for appellant Richard T. Lyzhoft)
Mark R. Bradford, David M. Dahlmeier, Bassford Remele, P.A., Minneapolis, Minnesota (for appellant Waconia Farm Supply)
Timothy J. Fetterly, Cheryl Hood Langel, McCollum, Crowley, Moschet, Miller & Laak, Ltd., Minneapolis, Minnesota (for respondent Brian T. Donahue)
Kevin F. Gray, Matthew W. Moehrle, Rajkowski Hansmeier Ltd., St. Cloud, Minnesota (for respondent Thomas A. Donahue)
Considered and decided by Smith, Presiding Judge; Schellhas, Judge; and Bjorkman, Judge.
In this consolidated appeal, appellants challenge the district court's summary-judgment dismissal of their strict products-liability and negligence claims against respondents. We affirm the court's dismissal of the products-liability claim but reverse its dismissal of appellants' negligence claims and remand for further proceedings consistent with this opinion.
Appellant Richard Lyzhoft contracted with respondent Brian Donahue to perform work at Lyzhoft's home including installation of a heating, ventilation, and air-conditioning unit in or around May 2009. During the course of Brian Donahue's work, his father, respondent Thomas Donahue, stopped by the home several times to check on the progress and, on one occasion, purchased two items for installation in the home. Lyzhoft reimbursed Thomas Donahue for the items but did not pay him for his time.
On June 10, 2009, knowing that Lyzhoft needed propane to obtain a certificate of occupancy, the Donahues told Lyzhoft that they had a propane cylinder that he could use, and that it was located at Brian Donahue's home. The Donahues also told Lyzhoft that appellant Waconia Farm Supply "would be the place to fill" the cylinder with propane. Lyzhoft and Brian Donahue went to Brian Donahue's home, where Lyzhoft's son and Brian Donahue's son obtained the available propane cylinder and placed it in the bed of Lyzhoft's truck. At that time, Brian Donahue cracked open the valve on the propane cylinder for a few seconds, sniffed, and said that it smelled like propane. Lyzhoft and his son then drove to Waconia Farm Supply to fill the tank with propane. After they arrived, Lyzhoft went to Waconia Farm Supply's shed, while his son remained in the truck. At the shed, Lyzhoft met Waconia Farm supply employee, Ryan Samuelson, who began to fill the cylinder with propane. Lyzhoft left the shed to pay for the propane. Approximately five seconds later, before Lyzhoft reached the store, the propane cylinder exploded, killing Samuelson, allegedly causing Lyzhoft's son to sustain first-degree burns on his arms and neck and initial symptoms of posttraumatic stress disorder, and allegedly causing Lyzhoft to suffer moderately severe hearing loss, depression, and posttraumatic stress disorder. Subsequent chemical tests of the propane cylinder revealed that it had contained acetylene, which can be extremely unstable. In this case, the cylinder detonated when it received pressure while being filled with propane.
The Donahues came into possession of the propane cylinder more than a year before the accident, after Thomas Donahue's tenant committed suicide, leaving the cylinder on the leased premises. During the tenant's possession of the leased premises, at least one person regularly sold "meth" on the premises, and someone on the premises had been "transferring oxygen and acetylene into propane tanks."
For injuries suffered by himself and his son, Lyzhoft asserted claims of strict liability and negligence against the Donahues and claims of strict liability for ultrahazardous activities, negligence, negligence per se, and res ipsa loquitur against Waconia Farm Supply, and sought damages in excess of $100, 000 against respondents, jointly and severally. Waconia Farm Supply ...