Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Plaintiffs sustained damages and personal injuries allegedly as a result of an explosion of propane gas. They claim that tanks of propane gas were furnished by the defendant Protane Corporation, and installed by a distributor, the defendant Liebnitzky, just outside plaintiffs' home; and that gas, passing through a pipe connecting the tank with the home, had leaked and flowed into plaintiffs' cellar, causing the explosion. Plaintiffs charged Protane with negligence.
The jury found against Protane and exonerated Liebnitzky. Protane appeals, arguing, first, that plaintiffs had not established a breach of duty on its part, and hence that its motion for judgment at the conclusion of all the evidence should have been granted. The case against Protane rests entirely on plaintiffs' claim that it was under a duty to take reasonable precautions to add to the propane gas (which in its
natural state is odorless) an odorant which would act as a warning in case of a leak.
Was Protane under such a duty? We think it was. The proofs establish in the first place that when propane gas leaks, there is a danger of an explosion. They indicate further that Protane, in order to meet this danger, impregnated its gas with an odorant, ethyl mercaptan, so that "the odor would be immediately carried with" the gas in the event of a leak and would thus serve as a warning. Indeed, when the defendant Liebnitzky installed the tanks at plaintiffs' home, he told plaintiffs that if the gas escaped, the odor would enable them to detect it.
N.J.S.A. 21:1 B -2, in the interests of safety (see N.J.S.A. 21:1 B -8), requires the Division of State Police to make regulations
"* * * setting forth minimum general standards * * * specifying the odorization of [propane gas] and the degree thereof."
Further see N.J.S.A. 21:1 B -5. Section 6.2 of the Regulations, adopted by the Division January 2, 1951 pursuant to this act (which section was read to the jury), indicates that odorization is required as a warning agent, obviously in the event of a leak. Protane claims that plaintiffs can derive no benefit from section 6.2 because the section provides that in certain exceptional situations it is unnecessary to odorize the gas. Suffice it to say (without spelling out the matter) that these exceptions appear in a proviso to the section and are of such a character that we think the burden lay on the defendants to bring in proof establishing that they were applicable here. Since there was no such proof, defendants cannot now rely upon them.
Such statute and regulation operate as a warning which a reasonably prudent man would heed -- though a violation of them is not to be regarded as negligence in itself. Carlo v. Okonite-Callender Cable Co. , 3 N.J. 253, 264 (1949); cf. New Jersey Fidelity, etc., Ins. Co. v. Lehigh Valley R. Co. , 92 N.J.L. 467, 472 (E. & A. 1918); Prosser,
Torts (2 d ed.), 161. Protane lays stress on the fact that plaintiffs did not establish any failure on its part to comply with the provision in the regulation requiring a certain degree of odorization. We think that, even without such proof, the statute and regulation, taken with the other evidence in the case, are indicative of a duty on the part of Protane to take reasonable measures so to odorize the gas that a user would be put on notice in case of a leak. We conclude therefore that the case should not have been taken from the jury on the ground that there was no such duty.
Compare Seward v. Natural Gas Co. , 8 N.J. 45, 47, 52 (1951), involving an explosion of propane gas, which occurred before the adoption of the above statute and regulation, but wherein the proofs showed the established practice within the industry with regard to odorization. It might be added that plaintiffs, to make out their case, were not bound to show what that ...