Date: 06-30-2012
Case Style: Stanley P. Clark v. Pop Trip, Inc.
Case Number: CJ-2010-3765
Judge: Daman H. Cantrell
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: Betty Outhier Williams, Law Offices of Betty Outhier Williams, Muskogee, Oklahoma
Defendant's Attorney: Russell Davis Carson, Russell D. Carson, P.C., Tulsa, Oklahoma
Description: Stanley P. Clark and Linda Clark sued Pop Trip, Inc. on negligence theories.
Stanley P. Clark and Linda Clark owned the subject truck on January 17, 2010.
On January 17, 2010, Plaintiff Stanley P. Clark needed to stop and get diesel fuel because he was running very low in his truck.
On January 17,2010, the Defendant was advertising the sale of diesel fuel.
They claimed that the diesel fuel purchased by them from Defendant contained water.
Plaintiff testified that it wasn’t raining the evening he filled up and the following day the roads were thy.
Joe Clark (Plaintiff Stanley Clark’s son) testified that it had been raining and the parking lot was wet the evening his father was fueling at Defendant’s station. Further that he was with his father that evening and took some of Plaintiff’s exhibits photographs.
Plaintiff produced the Oklahoma Corporation Commission file regarding Defendant’s gas station through the testimony of Ms. Terrin Moths.
Plaintiff’s exhibits from the Oklahoma Corporation Commission reflect that (as to issues relating to water in Defendant’s Underground Storage Tank ((UST)), that Defendant had been required to remove the water in his tanks on numerous occasions. However, not one of these exhibits reflect that upon any inspection there was ever more than 4” of water in them. (This was the maximum amount ever shown).
Defendant testified through one of it’s owners and agents Mr. Nasser (hereafter “Nasser”) that it would be impossible to get 24 gallons of water in a customers car unless there was more than 444 gallons of water in the UDT, (a 10” equivalent).
The defense entered exhibit 12 (chart establishing the number of inches of liquid to the number of gallons in the tank).
Nasser testified that the internal tank pump is 10” from the bottom of the tank and is so designed to prevent water, debris etc., from being pumped to the surface. That these tanks were, and have been, serviced by a private contractor, Petroleum Marketers Equipment Company, (see Defendant’s #6)
Nasser testified that water, through caps being left off from delivery drivers, condensation and the like will get into the tanks. This is a normal occurrence and the precise reason the pump is located within the tank where it is. Any water found in the tank is pumped out by contracting companies when it is discovered.
According to Defense exhibit 12 in order for water to be pumped to a customers car there would have to be more than 10” of water in the UST because water is heavier than fuel and will accumulate at the bottom of the tank. This would be the equivalent to more than 444 gallons of water.
According to all Oklahoma Corporation Commission tests of Defendant’s tanks, (covering a 12 year period), never was a finding made that there was more than 4” of water. (most of the exhibits show I V2 to 2 inches).
Two days later, on January 19th2010 Petroleum Marketers removed 60 gallons of water from the Defendant’s tanic. This is equivalent to 2 ‘/2 inches of water. (the driver noted 4/12 inches of water, however was only able to pump 2 ‘/2 before pumping diesel fuel. (Defense exhibit # 6). This pumping is done from the bottom of the UST.
Further the integrity of the Defendant’s tanks were fully evaluated in their required testing in October 2010. (Defendant’s Exhibit # 7), where all tanks passed the line tightness test, pressurized product line leak detector test and Function Test electronic or mechanical line leak detection.
Nasser testified that other customers had purchased diesel fuel the day of the purported event and the following day without any complaints of water in the fuel.
Plaintiff Stanley Clark testified that he is no stranger to civil litigation. He has been a Plaintiff seeking money in over 20 cases according to his testimony. When asked if he had put the water in his own tank in order to get anew truck, he became very animated and accused Defense counsel of being a liar.
DAMAGES
Plaintiff is claiming damages for repairs to the 2008 Ford pick-up, plus an additional “estimate” for further repairs, the loss in use of the truck, his lost time for investigating his claims, his lost time from work to investigate the claims, the NADA depreciated value of his truck, the trade difference for a new truck, and punitive damages.
It is the defense position that should this Court decide this case in favor of Plaintiff’s they should only recover the reasonable repairs to the truck. Instruction 4.14 Personal Property - - cost of Repairs- -
1. The reasonable cost of repairing the 2008 Ford truck plus
2. The reasonable cost of renting a similar 2008 Ford truck during The time reasonably required to make the necessary repairs
The injury caused by Pop Trip, Inc.
In Coe v. Esau, 377 P.2d 815, 820 (OkIa. 1963) The actual expense must be shown by evidence to have been incurred before the plaintiff is entitled to recover for loss of use. Plaintiff testified he could not use that truck for jobs, however, he testified he had numerous other trucks he used in business, and he produced no evidence that he suffered any actual losses from rental receipts.
Defense exhibit # 16 (repair ticket from James Hodge Ford) establishes the repairs at One Thousand Three Hundred Thirty Four and seventy one cents, $1 .334.71. There is a notation . . . “drove 100+ miles & retested, all systems pass at this time- note due to water content in fuel unable to state if any other damage may have occurred to HP fuel system, All systems seem fine at this time”
If this Court determines this case in favor of Plaintiff, Defendant agrees the reasonable cost of towing & repair are recoverable.
Defendant denies that this is a case of punitive damages, if the Plaintiff successfully proved to this Court that it’s negligence caused damage to Plaintiff’s vehicle, the negligent acts of Defendant were not deliberate or with such malice or disregard as to warrant punitive damages.
Outcome: Stanley P. Clark and Linda Clark owned the subject truck on January 17, 2010 Source: Transcript, Page 21 and Plaintiffs’ Exhibit 1.
On January 17, 2010, Plaintiff Stanley P. Clark needed to stop and get diesel because he was running very low in his truck. Source: Page 14. —
On January 17, 2010, the Defendant was advertising the sale of diesel fuel.
Nasir Ahmed, sitting at counsel table during the trial, was the sole person working at the station on the evening of January 17, 2010. Source: Page 15.
As it was cold, Stanley Clark left his truck running while he put what was advertised as diesel fuel into his truck and it began to sputter, knock, hammer and then died.
Clark then tested the substance that was coming out of the hose advertised as diesel and found that it was water. Source: Page 16.
Clark advised Abmed to come out to show him what was coming out of the tank advertised as diesel. Source: Pages 16-17.
Ahmed denied being the owner of the convenience store; he stated he was the night manager. Source: Page 17. Abmed later told a police officer called to the convenience store by Clark that he was the half owner of the store and that they owned two convenience stores. Source: Page 18.
Ahmed told Clark that Pop Trip, Inc. would pay for the cost of repairing his truck. Abmed admitted that evening that water had been sold instead of diesel. Source: page 143. Clark then contacted for payment and Ahmed or his brother advised Clark that the cost of repair was too much. Source: Pages 27-28. Neither Abmed nor his brother ever denied to Clark that they caused water to be put into his truck.
Clark’s truck was loaded onto a wrecker of Storey Wrecker, taken to the Ford dealership in Muskogee, locked and the keys put in a drop box at the dealership.
The Plaintiffs were charged by Defendant the sum of $73.52 for the water that was sold to them advertised as diesel.
The Plaintiffs had to pay Storey Wreck the sum of $249.51 to have their truck hauled to the Ford dealership in Muskogee.
At the James Hodge Ford Dealership in Muskogee, Oklahoma, 24 gallons of water and diesel combination was taken from the tank of the Clarks’ truck, which was a 90% water and 10% diesel combination.
The Plaintiff testified he paid James Hodge Ford the sum of $1334.71 for immediate repairs to their truck. Source: Page 52, Plaintiffs’ Exhibit 50. However, the truck was not okay after that fix as no item that could have been effected by the water in the gas tank was not under warranty and the certified service manager, Willie Kiefer, advised the Plaintiffs that in his opinion and experience, the Plaintiffs would have future continued problems which he estimated at $7554.00, but which he testified could run to as much as $20,000, Pages 52-56, 158, 165-168, 188, Plaintiffs’ Exhibit 49.
So Plaintiffs chose to mitigate their damages by trading for a lesser truck which would not have the water damage and would have a warranty for the cost of $6862.00.
Plaintiff Stanley Clark, owner of the largest repair plumbing business in Muskogee, Oklahoma, testified that he lost approximately 40 hours of work at $100. per hour attempting to resolve the problems caused by the water in his diesel tank. Source: Pages 12, 63-66, Plaintiffs’ Exhibits 53-56.
Plaintiff suffered a total out of pocket loss by the sale of water as diesel to be placed into his vehicle in the sum of$l3,520.26. Source: Pages 66-67, Plaintiffs’ Exhibit 56.
Defendant, through its owner, admitted that it knew that the Oklahoma Corporation Commission regulated its business to protect consumers from it selling anything other than what it advertised - diesel fuel for diesel fuel. Source: Pages 270-271. The Defendant knew of other complaints by other customers of sale of water in their gasoline or diesel prior to the sale of water as diesel to the Plaintiffs.
The Defendant has a very, very long history of having water in its diesel tanks, of knowing that it has water in its diesel tanks, and doing nothing about the water. The records of the Oklahoma Corporation Commission reflect that the Defendant had the following amounts of water in the diesel tank on the following dates and the following directive from the Oklahoma Corporation Commission;
• July 26, 2001 1 3/4” Remove within 24 hours
• July 27, 2001 3/4
• December 18, 2001 Must have water pumped out of diesel tank
• May 9, 2005 13/4”
• July 19, 2005 3/4”
• February 13, 2006 1 7/8”
• August 20, 2007 Water in diesel pipe containment - Needs to be removed
• September 29, 2009 3 ‘A”
• January 19, 2010 4”
Source; Pages 102-107; Plaintiffs’ Exhibits 3-18, 62, 65 20. The Corporation Commission has prohibited the Defendant from selling diesel gas without repairs on the following occasions:
• September 18, 2001
• May 9, 2005
• January 19,2010
• February 25, 2010
Source: Pages 288-289, 291-292, 295-297, 306-307 3 12-313; Plaintiffs’ Exhibit 63,67,74
Although told by the Oklahoma Corporation Commission not to sell diesel gas until the prohibition was removed, the Defendants sold diesel gas anyway.
Following the sale of water to Plaintiffs as diesel thel, the Oklahoma Corporation Commission required: 1.) A tank tightness test on all tanks; 2.) SIR on all three tanks; 3.) tighten the risers; 4.) recefluf Cathotic Protection; 5.) Remove water from diesel tank; 6.) repair the source of the water intrusion in both tanks. Source; Defendant’s Exhibit 3. These items were not done by the Defendant, except what was in annual or regularly scheduled testing in order to receive gas from the wholesaler, and then not on schedule. Source: Pages 308-312, 317, 320- 321, Plaintiffs’ Exhibit 75, 76, 78 & 79,
Conclusions of Law
The suit brought by the Plaintiffs was for negligence and negligence per se. Negligence requires a proof of 1.) a duty owed by the Defendant to protect the plaintiff from injury, 2.) a failure to properly exercise or perform that duty, and 3.) Plaintiffs’ injuries were proximately caused by the Defendant’s failure to exercise the duty of care. Franklin v Toal, MD., ¶ 14,2000 OK 79, 19 P.3d 834. The Defendant had a duty to sell to the Plaintiffs what it advertised as diesel gasoline and not water. The Defendant had a duty to abstain from injuring the property of another. 76 0. S. § 1. The Defendant failed to exercise proper care in that it on January 17, 2010, and on previous occasions sold water as diesel gasoline. The Defendant was well aware of its duty to not sell water as diesel gasoline. The damage to the truck of the Plaintiffs was immediate and became evident on the premises of the Defendant’s business, as the truck had to be hauled away by a wrecker and 24 gallons of water removed from its tank. Therefore, the Plaintiffs have established their cause of action for negligence by the Defendant.
Additionally, the Plaintiffs alleged negligence per Se, as the Defendant violated the rules and regulations of the Oklahoma Corporation Commission created to protect consumers as the Plaintiffs from receiving water instead of diesel gasoline. Negligence per se merely requires proof of violation of the rules and regulations when the elements of negligence have been established. Foster v Harding. 19670K 46, 426 P.2d 355, 358 (1967). Therefore, the Plaintiffs have established negligence per se by the Defendant as well.
When proof of the elements of a tort are made, the Plaintiff then has a right to be awarded damages compensating them for their loss. 23 0. S. § 3. The Plaintiffs have requested damages in the sum of $13, 520.26, the court finds damages which should be awarded in the amount of $10,000.00. Additionally, the Plaintiffs have a right to pre-judgment interest and post-judgment interest, costs and attorney fees upon this award.
The Plaintiffs have additionally proven by clear and convincing evidence:
That the actions of the Defendant are a serious hazard to the public;
• That the actions of the Defendant to have water in its diesel has occurred with regularity for at least the past ten (10) years;
• That the Defendant has been aware of the water in its diesel and has made no effort to repair the problem(s) causing the water to be in the diesel;
• The Defendant has continually defied the attempts of the Oklahoma Corporation Commission to correct or remedy the water in the diesel sold by the Defendant;
• That the individuals so acting are the owners of the company.
Therefore, the Plaintiffs have established the elements necessary for the award of punitive damages against the Defendant. 23 0. S. § 9.1. Therefore, the Court awards the Plaintiffs punitive damages against the Defendant in the sum of $5,000.00
Plaintiff's Experts:
Defendant's Experts:
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