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Hutchison v. Pharris1/6/2005
INTRODUCTION
This suit involves the tragic deaths of two children resulting from a fire that also injured three adults and destroyed a mobile home. Appellants Leighia Hutchison, individually, as next friend of Jonathan Hutchison, and as representative of the estates of Cody and Elizabeth Hutchison; Laura Blevins; and Donny Drennon appeal from a take-nothing judgment in favor of Appellee Vincent Pharris d/b/a Murray & Massie Butane (Murray & Massie). Appellants raise three issues, complaining that (1) there is legally or factually insufficient evidence to support the jury's finding that Blevins and Hutchison were contributorily negligent in causing the fire or deaths; (2) the jury's failure to find negligence of Murray & Massie in connection with the mobile home's propane tank is against the overwhelming weight and preponderance of the evidence; and (3) the jury's failure to award damages to Appellants is against the overwhelming weight and preponderance of the evidence.
FACTUAL BACKGROUND
A. The Fire
At about 9:00 a.m. on March 9, 1994, a fire engulfed and totally destroyed a double-wide mobile home at Lake Arrowhead, Texas. Laura Blevins and her husband had bought the mobile home in 1992. Laura and her husband had separated, and she had lived in the mobile home for a little more than a year at the time of the fire. The propane tank and line were already hooked up when they bought the trailer. Blevins did not know who had previously serviced the tank. When they first bought the mobile home, she had called John's Tractor & Propane to check and service the tank.
Murray & Massie first made an "out-of-gas" call to the residence on November 2, 1993. Its gas serviceman performed a monometer or "leak" test of the regulator, made a visual exam, reconnected the line, and went into the house and lit the pilot lights after filling the tank. Everything checked out. Murray & Massie again provided propane service and filled the tank on November 2, 1993, December 6, 1993, January 5, 1994, and January 21, 1994. When Murray & Massie was not paid for those last three deliveries, it quit delivering gas. When Blevins once again ran out of gas in March, shortly before the fire, she called Calvin Gas Company for service. Calvin Gas was the last dealer to fill Blevins's propane tank before the fire. Calvin Gas filled the tank a few days before the fire but did not inspect the system or light the pilot lights.
At the time of the fire, the mobile home was occupied by Blevins, her son Donny, her daughter Leighia Hutchison, and Hutchison's three children. Cody was three years of age, Jonathan was eighteen months old, and Elizabeth was five months old. Blevins had turned on the burners of her kitchen stove to warm the home when she returned from work around 4:00 a.m. There was no other heat, as the pilot lights to the furnaces had been unlit for several days.
Blevins had coffee and a couple of cigarettes and left the burners on when she retired to her bedroom after heating a bottle for her granddaughter, Elizabeth. Leighia awoke and took the three children into another bedroom to watch TV after the two boys had cereal. Donny was asleep in the third bedroom. Leighia went back to sleep with Elizabeth lying beside her as Jonathan and Cody left the bedroom, ostensibly to use the bathroom, shutting the bedroom door behind them. No one smelled gas.
Blevins heard the boys go into the kitchen. A few minutes later, Leighia heard Cody scream. Blevins came out of her bedroom and saw what she would later describe as a "fireball" above the stove that "swooshed" back toward the laundry room, knocking her down. The
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