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Apodaca v. AAA Gas Co.3/11/2003
imum by compliance with adequate regulations. The handling of liquid propane is heavily regulated by a nationally recognized regulatory code that was adopted by state law and city ordinance at the time of the accident. See NFPA 58; State Liquefied Petroleum Gas and Compressed Natural Gas Act ("LPG & CNG Act"), NMSA 1978, §§ 70-5-1 to -23 (1947, as amended through 1999); Albuquerque Fire Code, § 14-2-1(B)(3) (1993). As discussed below, the national standard, as adopted by New Mexico, applies to the general public within the state, and, as adopted by the City of Albuquerque, it applies to all commercial businesses within the city. Propane is relatively safe if it is handled in accordance with these regulations. It is when the precautions prescribed by NFPA 58 are not taken that handling propane becomes extremely dangerous.
Moreover, Plaintiffs have offered no reason why the negligence regime is inadequate to remedy or deter accidental explosions resulting from the repair of a loaded propane truck. Propane is highly flammable, but there is no evidence it is so corrosive or otherwise destructive that it will unpredictably damage or weaken a tanker's valve or delivery system. The cause of the explosion in this case was carelessness-whether it was a defective valve supplied by LPGE, or the delivery of a loaded propane tank by AAA Gas, or the mechanics' decision to pull the truck into the garage for repair, or any combination of these factors. "Accidents that are due to a lack of care can be prevented by taking care; and when a lack of care can . . . be shown in court, such accidents are adequately deterred by the threat of liability for negligence." See Indiana Harbor Belt R.R. Co., 916 F.2d at 1179; see also Arlington Forest Assocs., 774 F. Supp. at 390. Strict liability is appropriate only where the activity remains dangerous despite all reasonable precautions. Id. at 391. Since some precautions could have reasonably reduced the danger of repairing the propane truck, this factor has not been satisfied.
Uncommon Usage
The Restatement defines common usage as an activity "customarily carried on by the great mass of mankind or by many people in the community." Restatement § 520 cmt. i. It is the activity, not the substance, that must be of common usage. Indiana Harbor Belt R.R. Co., 916 F.2d at 1181. The fact that an activity is not carried on by the "great mass of mankind," however, is not decisive. What is customary activity in the community has come to encompass customary industrial activity throughout the country. See, e.g., New Meadows Holding Co., 687 P.2d at 216 (concluding underground transmission of gas by large utility companies is matter of common usage); Johnson & Johnson v. First Nat'l Bank, 594 S.W.2d 870, 872 (Ark. Ct. App. 1980) (stating that while "CS2 may be an uncommon gas, . . . it more important that it be uncommon for industrial operations to store and use potentially dangerous gases in pipes in factories in industrial areas"); First Nat'l Bank, 88 N.M. at 79, 537 P.2d at 687 (marketing of Panogen was matter of common usage where "grain treatment had wide acceptance and use throughout the country at the time of the . . . incident"); Arlington Forest Assocs., 774 F. Supp. at 391 (storing and removing gas from commercial underground storage tanks is not "carried on by the great mass of mankind . . . filling stations with underground storage tanks are commonplace in most communities throughout the country") (internal quotation marks omitted). Thus, in order to satisfy this Restatement factor, "the activity . . . [must be] uncommon in the circumstances in which it causes injury." Johnson & Johnson, 594 S.W.2d at 872.
AAA Gas cites to the wi
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