The OPD: A Legal Primer

Questions have arisen regarding the legal obligations of marketers attendant to the requirements for an overfilling prevention device (OPD) as found in the 1998 edition of NFPA 58, ¶2-3.1.5. Briefly, with respect to cylinders with propane capacities from 4 lbs. through 40 lbs. (except for cylinders used in industrial truck service and those used for industrial welding and cutting gases, as well as some used in the horizontal orientation) this paragraph requires:

1. Cylinders fabricated after September 30, 1998, shall include an OPD.
2. Cylinders requalified after September 30, 1998, shall be equipped with an OPD.
3. Effective April 1, 2002, no cylinder shall be filled unless it is equipped with an OPD.
4. Cylinders required to have an OPD shall be equipped with either a CGA connection No. 791 or No. 810.

Legal concerns will generally arise in a situation where a marketer has sold or exchanged a cylinder which was involved in an accident and a claim is made that the accident occurred because the cylinder was "overfilled". As a general rule, a plaintiff's claim in such a case will be based either on "product liability" or "negligence" law. Although state laws and court holdings differ widely, there are certain basic principles which apply.

Product liability law requires that the plaintiff prove that the product in question is defective and that the defect caused the injury. Traditionally, a defect has been defined to be that which would render the product "unreasonably dangerous". This traditional definition has recently been expanded in order to provide clarity and better guidance for future court decisions. It now provides that a product is defective when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller and the omission of the alternative design renders the product not reasonably safe.

Negligence law generally holds a party to be liable when he fails to use "reasonable care" under the circumstances; however, most states have held that propane is a "dangerous" or "hazardous" product and thus have held those who handle it to a higher standard of care.¹

In both product liability and negligence law, the plaintiff must prove that the conduct of the marketer, either in supplying a defective product or in acting negligently, was a cause of the plaintiff's injuries. Additionally, in negligence cases and in many instances in product liability cases, the actions of the plaintiff may be compared in some manner to the actions of the marketer and the plaintiff's recovery can be reduced by his own percentage of negligence.

With this background, the key issue then becomes whether compliance or non-compliance with NFPA 58, ¶2-3.1.5, will result in a determination that a cylinder without an OPD is "defective" or that the marketer's conduct in selling, exchanging or filling such a cylinder is "negligent". In making this determination, the court must first decide, as a matter of law², whether NFPA 58-and, specifically, ¶2-3.1.5-is applicable.

Generally, a product's noncompliance with an applicable product safety statute or administrative regulation would render the product defective as a matter of law. With this in mind, there are three separate regulatory situations to consider.

1. In a state which has adopted ¶2-3.1.5, the product will be deemed to be defective as a matter of law if there is noncompliance with the provisions of this paragraph. The jury will still be required to determine whether the defect caused the accident.

2. In a state which has not adopted the latest version of NFPA 58, a court may allow evidence to be introduced that ¶2-3.1.5 constitutes the standard of the industry. Although this is not proof of a defect, it could be considered as evidence of a defect or negligence which should be considered within the context of the marketer's total conduct.

3. Finally, in a state which has adopted the latest edition of NFPA 58, but specifically opted out of or modified ¶2-3.1.5, failure to have an OPD would not be a defect. In addition, a strong argument could be made that the specific rejection of this provision by the legislature or regulatory authority having jurisdiction would establish that the OPD is not the "standard of the industry" and thus should not even be considered by a jury as evidence of a defect or negligence.

©NPGA 2001

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¹Courts have required suppliers of propane to exercise an enhanced degree of care to prevent injury to others from its escape.  Parkinson v. California Co., 255 F.2d 265 (10^th Cir. 1958).

²One cannot assume, however, that compliance will mean no finding of liability.  Courts have held that compliance with an administrative regulation is merely a circumstance to be weighed with other factors.  “Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.”  Restatement (Second) of Torts (1965), §288C.