Pennock v. Aerostar International, Inc.

2012 BCSC 1422 Pennock v. Aerostar International, Inc.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Pennock v. Aerostar International, Inc., 2012 BCSC 1422 Date: 20120927 Docket: S096203 Registry: Vancouver Between: Stephen Robert Pennock, SRP Adventure Tours Limited and the said SRP Adventure Tours Limited d.b.a. Fantasy Balloon Charters and Despen Enterprises Limited Plaintiffs And Aerostar International, Inc., Raven Industries, Inc., Adventure Flights Inc., and Jim Bilbrey Defendants And Doug Scott Third Party Before: The Honourable Mr. Justice Bowden Reasons for Judgment Counsel for the Plaintiffs: D.G.A. Jones J.L. Thornback Counsel for the Defendants Aerostar International, Inc., Raven Industries, Inc., and Wheeler Tank Manufacturing, Inc.: C. Harvey, Q.C. B.C. Poston The Third Party, Mr. Scott: In Person Place and Date of Trial: Vancouver, B.C. February 13-17, 20-24, 27-29, March 1-2, 5-8, and 13-14, 2012 Place and Date of Judgment: Vancouver, B.C. September 27, 2012 I. INTRODUCTION [1] These proceedings arise from a tragic hot air balloon fire that occurred on August 24, 2007, in Surrey, British Columbia. In this action the pilot is seeking damages for personal injuries that he says resulted from the negligence of the manufacturer of the balloon. [2] The parties agree that the fire started as a result of the failure of a fuel line or fuel hose used in the balloon which led to the uncontrolled release of propane and an

intense fire in the gondola of the balloon. [3] The plaintiffs' position is that the accident resulted from the improper assembly of the fuel line by the defendant Aerostar and/or by Aerostar's unsafe design of the balloon's propane system. [4] The defendants submit that the plaintiffs cannot establish that the fuel hose was defective when it left the factory, and that the plaintiff's misuse of the hose caused it to fail. [5] In these reasons the "balloon" refers to the entire aircraft including the basket or what is referred to in the industry as the "gondola," and the balloon itself, which is referred to in the industry as the "envelope." II. Issue [6] The issue is whether the failure of the fuel line and fire resulted from the negligence of Aerostar in assembling the fuel line and/or designing the fuel system for the balloon. III. Background [7] The balloon flight on August 24, 2007, began like many other flights that the plaintiff had piloted. He was an experienced pilot with over 2,000 hours of flying time in a hot air balloon without a previous accident or any injury to a passenger. The passengers gathered at the launch site about 6:00 p.m. They signed waivers and the plaintiff checked their weight to ensure that the total weight of the passengers was within the capacity of the balloon. [8] The balloon is described as a Raven S-77A and is registered with Transport Canada

as C-GTRU. The envelope was manufactured by the defendant, Raven Industries Inc. ("Raven"), in 1983. Following the transfer of Raven's balloon division to a subsidiary, the defendant Aerostar International, Inc. ("Aerostar"), assumed the responsibilities of the balloon's type certificate holder as regulated by Transport Canada. A type certificate specifies the operating parameters of the balloon under the applicable regulations. The remainder of the balloon, including what is referred to as an RB12 gondola, was manufactured or assembled by Aerostar. [9] The gondola was designed to carry a pilot and up to 12 passengers. It contained a pilot's compartment and four passenger compartments. [10] The balloon is launched and kept aloft by heat introduced into the envelope from an HPIII Triple Burner located above the pilot's compartment. The burner is fuelled with liquid propane from the fuel tanks standing in the gondola. [11] At the time of the fire there were three 23-gallon or V23 propane tanks and one 15-gallon or V15 propane tank on board. Two of the V23 tanks were connected by a fuel line to two burners near the front of the gondola. Their valves were closed. The V15 tank was connected by a fuel hose to a burner near the rear of the gondola. Its valve was open. [12] The V15 fuel hose consisted of a length of what is referred to as SS25UL hose with metal fittings at either end.

The burner end of the V15 fuel hose had a swivel fitting. The tank end had a male pipe fitting and was referred to as a "field attachable fitting." The V15 hose and its fittings were manufactured by Parker Hannifin Corporation ("Parker"). Aerostar assembled the V15 hose and fittings. Part of the assembly process involved the insertion of the hose into one end of the fitting at each end of the hose. The user of the assembled hose is then able to connect and disconnect the hose from the tank and burner, as appropriate for the fitting, using the other end of the fitting. The fitting at the tank end or the field attachable fitting is threaded in the area where the hose is inserted into it during assembly. [13] In preparation for launching the balloon, the plaintiff and his crew carried out the inflation process. This process started with a large fan blowing ambient air into the envelope. Next, a 10-gallon propane tank was connected to a burner and used for hot inflation. The envelope then rose to a vertical position and the gondola moved from lying on its side to an upright position. [14] The plaintiff then boarded the gondola. The passengers were directed to get on board by another employee. The plaintiff said that he only noticed eight people getting into the gondola but understood that more people got on board. The plaintiff then disconnected the 10-gallon tank and an employee

took it from the gondola. [15] The plaintiff next connected the V15 tank and continued with the pre-flight inflation. He connected the fuel line from that tank to a burner. He ignited the pilot light in the burner and initiated a short burst of fuel that resulted in what he described as a "good blast of flame." He then began a "full burn" which produced a flame high into the envelope. After that burn, as the plaintiff released the trigger mechanism, he described hearing a loud sharp release of pressure which he described like the sound of a truck releasing its air brakes. He looked up at the flame and then heard an explosion on his right side. He heard gas escaping, felt vapor around him and smelled propane. He felt a spray of fuel coming up beside his face. He said he tried to turn off the pilot light but did not reach the switch before the fuel ignited in the air around him and the passengers. The plaintiff described it like being hit in the face with a blowtorch. He said he was stunned and blinded. He yelled to the passengers to get out of the gondola. He said that he reeled back in his compartment and fell out of the back of the gondola. He did not immediately see what was happening to the passengers. [16] When the plaintiff fell, he was burning, so he rolled on the ground. He then saw the balloon and gondola rising off the ground. The gondola was engulfed in flames. The

line tethering the gondola to a truck trailer broke and the balloon continued to rise. He noticed passengers jumping from the gondola to the ground. Eventually, when the envelope had been consumed by fire, the gondola fell hundreds of feet to the ground into a trailer park. [17] Apart from the plaintiff, there were 12 passengers. As a result of the fire and balloon failure many of them were seriously injured and two died. [18] The evidence establishes that when the plaintiff activated the valve on the V15 tank for the second time, the V15 fuel hose separated from the fitting at the tank end, allowing liquid propane to spray uncontrollably around the gondola and ignite. The V15 fuel hose was seen by some to whip around inside the gondola. This resulted from the release of propane under pressure in the fuel hose. Propane also escaped from the tank fitting where the fuel hose had been attached. IV. Expert Evidence [19] Gilles Amirault, a professional engineer with expertise in mechanical engineering and forensic analysis, provided the Court with his opinion as to how the failure of the V15 fuel line likely occurred. [20] Mr. Amirault concluded that it is very likely that the fire resulted from a rapid propane gas escape caused by a line disconnection somewhere along the propane flow path from the tank valve to the connection at the burner. He opined that it is very likely that the

initial connection failure was the pullout of the hose from the fitting at the tank end. [21] He noted that there was limited physical evidence from the failure. Most of the material had been destroyed by the fire. As a result, he said there were numerous ways in which the fuel line could have failed and listed some of them to be as follows: 1) A flaw within the line at the fitting end which grew around the circumference of the line.

2) The threaded fitting insert fractured as a result of reasonable or unreasonable stresses causing a circumferential crack in the insert.

3) The hose was improperly installed in that it was not installed with the required depth of engagement into the fitting such that through continuous use and handling the hose worked its way out of the fitting.

4) The fitting was manufactured with a defect, either geometrical or metallurgical, resulting in a premature failure of the fitting.

5) The hose and fitting were subjected to higher external stresses than those for which it was designed by the manufacturer. Such stresses could be caused by bending the hose at the fitting connection and exceeding the minimum bend radius or pulling on the hose with excessive force. (In these reasons I will refer to these as "Excessive Stresses").

6) The threaded fitting insert was not properly positioned either from an original installation problem or from repeated use such that the threaded insert was partially unthreaded. [22] Mr. Amirault said that each of the potential ways that he described as how the line could have failed was unlikely; however, he opined that based on his review of the published literature and his analysis, from a statistical standpoint, the most likely of the potential causes were that the hose was improperly installed onto the fitting or that the hose was subjected to Excessive Stresses. He was not able to say whether one of these causes was more likely than the other. [23] Peter Senez testified. He is a professional engineer who specializes in fire protection engineering. He has experience with propane and other flammable gases and liquids both from a design standpoint and in terms of forensic analysis. He conducted a forensic analysis of the wreckage of GTRU and considered the adequacy of the design of the propane system from a fire safety prospective. While he has experience with propane fuel systems he does not have any experience in relation to fuel systems used in hot air balloons. Nor does he have any expertise in relation to aeronautical engineering or aviation. As a result, I ruled that I would not accept those aspects of his expert report that I considered to be outside his area of

expertise. [24] The plaintiffs rely in particular on the aspects of Mr. Senez' report which relate to the need for a fail-safe device in a hot air balloon like GTRU. In a ruling regarding Mr. Senez' areas of expertise I said that I would give little, if any, weight to his opinion regarding the need for a failsafe device in a hot air balloon. The evidence satisfies me that there are numerous considerations involved in determining whether a particular fire safety mechanism is suitable for use in a hot air balloon, but many of those considerations require experience with the design of hot air balloons that Mr. Senez did not have. A. The V15 Propane Tank [25] The plaintiff, Mr. Pennock, testified that he acquired the V15 tank so that he would have the maximum fuel on board when he launched. By using fuel from the V15 tank he could bring the envelope up to the necessary lift temperature without using fuel from the V23 tanks. He said that as soon as the balloon was upright and stable, he would switch to the V23 tanks for flight. His testimony regarding the use of the V15 tank was unclear. I understood him to say that he did not fly the balloon using the V15 tank and said he only used it for inflation. At another point in the trial his evidence was that he would sometimes have the V15 tank on board but I understood him to say that he would not use it as a source of propane for the

burners. I find that while he may have occasionally had the V15 tank on board during flight he would only use the V23 tanks to provide propane to the three burners. [26] There is some question as to whether the flight manual produced by the defendant, Aerostar, approved of the use of three V23 tanks and a V15 tank on board while the balloon was in flight. In view of the conclusions that I have reached in this case I do not find it necessary to determine if the V15 tank on board together with the three V23 tanks was a permitted configuration and, if not, to what extent the presence of the four tanks on the day of the accident contributed to the outbreak of the fire. B. The V15 Fuel Hose [27] An exemplar of the V15 fuel hose was filed as Exhibit 2. [28] In the expert report of Mr. Amirault, there is a description of a V15 fuel hose. It is 97 inches in length with a fitting attached at each end. [29] The V15 fuel hose in use at the time of the accident was put into service by the plaintiff in the spring of 2004 or about 3½ years before the accident. The plaintiff described how he would coil the V15 fuel hose around the tank each time that he was finished using it. The tank end fitting remained attached as the hose was coiled. He said that when the hose was disconnected from a burner he would coil it gently around the collar at the top of the tank and store it there until he used

it again. He said that it would be wrapped two or three times around the collar. He described the bend in the hose when this was done as being the natural curl of the hose as it comes from the factory. When he was doing one flight a day, the plaintiff said that he would coil and uncoil the fuel line either four times a day, or, if he operated two flights, eight times a day. [30] The plaintiff testified that the V15 tank was never knocked over and had no dents in it. He said that the hose would always stay with its tank. I take him to be referring to when the V15 tank and hose were in his possession because he also said that the V15 tank could have hit something or the hose could have been stepped on when it was not in his possession. [31] The plaintiff described how he used the 10-gallon tank. He said that its hose was handled in the same way as the V15 hose except by different members of the crew. He said that it never failed, even after testing by the Transportation Safety Board following the accident. [32] As an example of the amount of use of the V15 fuel hose, the plaintiff said that in 2006 he carried out about 97 flights. He agreed that it would have been coiled and uncoiled about 580 times during that season of flying. [33] The plaintiff said that on the day of the accident during the time it took to fill the V15 tank with propane he inspected the hose. He said that he

would have connected the male fitting to a burner and tightened that with a wrench. He would then pressurize the hose and look for any sign of leaking such as frost or clouding caused by the cold propane. He would rub his hand down the hose to feel if there were any cold spots and then sniff for any signs of propane. He also checked for any fraying and said he did not see any. He said that he keeps the hoses in pristine condition. [34] The fuel hoses for the V23 tanks were inside protective leather covers on the superstructure of the gondola where they went from the tanks to the burners. The fuel hoses for the 10-gallon tank and the V15 tank were loose and not kept under covers when they were used. [35] Douglas Scott testified. He is an aircraft maintenance engineer and qualified to inspect and repair hot air balloons. He has over 30 years' experience and has worked on at least 30 different types of hot air balloons including those manufactured by Raven. He has inspected the plaintiff's balloon for a number of years. He testified that he has never rejected it for not being airworthy. He has not done any repairs on it. Any required repairs were done by a company known as Adventure Flights, a dealer that serviced Raven and Aerostar balloons. [36] Mr. Scott described the balloon GTRU as being in pristine condition. He performed an annual inspection on it. On May 7, 2007, he did

what he described as a "cold inflation" and a "hot inflation" with the balloon fully inflated. He performed a submersion leak test on the V15 hose using pressurized nitrogen gas up to 300 pounds per square inch. It passed. He could not recall the V15 hose ever failing that test. [37] Mr. Luis Moreiras, a professional engineer with a degree in mechanical engineering, testified. He was previously employed by Parker for over 30 years and became the senior engineer in Parker's hose products division before his retirement. Parker manufactured the SS25UL raw hose and end fittings that Aerostar assembled into the V15 fuel line. [38] Mr. Moreiras testified that over his career with Parker he was aware of 100 to 200 hose separations occurring from all of Parker's hoses. Most of the assembled fuel lines that Parker produces have crimped fittings and are not field-attachable as the one in this case. Of the failures he is aware of, between 10 and 30 involved field-attachable fittings. One of Parker's plants assembles about 1,000 fuel lines each day and the other two Parker plants produce hundreds of fuel lines per day. The total produced would therefore be in the vicinity of 450,000 fuel lines per year. [39] Mr. Moreiras said that hose separation could occur as a result of defective manufacture of the fitting, internal threads being flattened, a metallurgical anomaly or the improper

assembly of a fitting and hose. He also said that 25% of the fuel lines with field attachable fittings which are examined because of pull-out can be attributed to use in the field. He said that with respect to the V15 hose in this case, Parker has been unable to determine why the separation or pull-out occurred. [40] Of the four examples of hose failures that had come to Mr. Moreiras for examination from Aerostar, all of the problems arose because of service-related issues such as hose abrasion, exceeding minimum bend radius, kinked lines or improper use. None were found to be as a result of improper assembly. V. Plaintiffs' Argument [41] The plaintiffs argue, firstly, that the V15 fuel line was assembled improperly at Aerostar's factory, likely through the failure to insert the hose to an adequate depth in the fitting. This defect then resulted in the hose slowly pulling out of its fitting and failing on the day of the accident when it was pressurized. [42] Secondly, the plaintiffs say that the design of the propane system was defective because there was no emergency shutoff or other mechanism to deal with the risk of a propane leak and fire. [43] The plaintiffs say that although there is no direct evidence of improper assembly it can be inferred from the circumstantial evidence in this case. They submit that there is no evidence of improper use of the V15 hose and that should

lead to the inference that the hose and fitting were improperly assembled. [44] With regard to the design of the propane system, the plaintiffs submit that a propane fire in the balloon was a foreseeable hazard and Aerostar and Raven had a duty to investigate and install appropriate mechanisms to reduce the risk of fire such as a 90-degree shutoff valve, a halon suppression system or a thermal shutoff. VI. Aerostar's Argument [45] Aerostar submits that the Court cannot conclude that the failure of the fuel hose could not have occurred in the absence of negligence by Aerostar. It argues that having over 30 years of assembly experience without a previous pull-out failure, should any inference be drawn, it should be that the failure resulted from in-service handling problems. [46] Aerostar also says that when the fuel hose functioned properly for four years and was subject to daily and annual inspections, including one in May 2007 when it was declared 100% airworthy, it cannot be established on a balance of probabilities that the hose was defective when it left the factory. [47] Aerostar also submits that the expert, Mr. Amirault, conceded that explanations exist for the failure that are as consistent with no negligence on the part of Aerostar as with negligence. [48] Aerostar says that there is no evidence that a defect existed when the hose left the assembly plant and no

evidence as to why the failure took place. [49] As to defective design, Aerostar says the plaintiff chose to modify Aerostar's design by adding a supplementary fuel tank and line that was unanticipated by Aerostar and a use that the plaintiff knew was an impermissible addition to the fuel configuration of the balloon. [50] Aerostar also argues that the design of one of the fail-safe systems referred to in the evidence is irrelevant because the loss would have occurred in any event because the fire occurred so quickly after the hose failure. VII. ANALYSIS [51] The law regarding a manufacturer's duty is stated in Farro v. Nutone Electrical Ltd., [1990] O.J. No. 492 at para. 11: 11 A manufacturer has a duty to take reasonable care in the manufacture of his product, including all its component parts, and failure to take such reasonable care can result in liability to the ultimate user or consumer. 12 In Charlesworth on Negligence, 5th ed. (London: Sweet & Maxwell, 1971) at 394, paras. 631-632, the following appears: The duty of the manufacturer may be said to be to take reasonable care in the manufacture of his product, and failure to take such care will render him liable to any consumer or user whose person or property is injured by his product, provided (1) the product causing the injury has the same defect as it had when it left the manufacturer; and (2) the manufacturer should

have contemplated that the product would be consumed or used in the same condition as it was in when it left him. A manufacturer's duty is not limited to those parts of his product which he makes himself. It extends to component parts, supplied by his sub-manufacturers or others, which he uses in the manufacturer of his own products. He must take reasonable care, by inspection or otherwise, to see that those parts can properly be used to put his product in a condition in which it can be safely used or consumed in the contemplated manner by the ultimate user or consumer. [52] I consider the duty of an assembler of a product such as Aerostar in this case to be substantially the same as that of a manufacturer. Thus, Aerostar had a duty to take reasonable care to see that the hose and fittings that it assembled could be safely used in the contemplated manner by the ultimate user. [53] If I find that Aerostar was negligent in the assembly of the V15 fuel hose, the plaintiff must also establish that the failure of the product caused damage to the plaintiff. In the circumstances of this case this requires that the plaintiff show on a balance of probabilities that but for Aerostar's negligence the fire would not have occurred with the resulting injuries. [54] Based on the expert evidence of Mr. Amirault, because of the damage sustained by the V15 hose in the fire, there is no direct

evidence of the cause of the failure of the hose. Mr. Amirault opines that there are six possible causes of the hose separation, all of which are unlikely but two of which are the most likely. The plaintiffs submit that an inference can be drawn from the circumstantial evidence that the V15 fuel hose was defective when it left Aerostar's assembly plant. In essence, the plaintiff argues that because the hose was not subject to any Excessive Stresses, the Court should infer that the separation resulted from improper assembly by Aerostar. [55] The plaintiffs cite commentary at page 63 of Products Liability, 4th ed., by S.M. Waddams, as follows: Rarely can a plaintiff prove by direct evidence that a defect existed when the product containing it left the factory. The existence of a defect, and its presence in the product at the material time, has always been held to be provable by inference from circumstantial evidence. Such evidence usually shows that the plaintiff has not misused the product, and that it has failed in normal use. The ability of the plaintiff to succeed on such evidence is rightly regarded as an important part of the substantive law of products liability. [56] As to any misuse of the product after it leaves the factory, the Ontario Court of Appeal in Farro referred to Prosser W.L., Law of Torts, 3d ed. (1964) at 671, where the learned author states: Since the

injured plaintiff almost never has any direct proof of what has occurred in the manufacturer's plant, he usually must resort to circumstantial evidence. In the ordinary case this means that he must rely upon the doctrine of res ipsa loquitur. In order to bring himself within the doctrine, he must make it appear that the cause of the injury was something which lay within the responsibility of the defendant. In other words, he must introduce evidence to exclude the possibility that it was due to his own conduct, or that of intermediate handlers or any meddling third party. [57] The plaintiff is not relying on the doctrine of res ipsa loquitur; however, in Smith v. Inglis Ltd., [1978] N.S.J. No. 495, the Appeal Division of the Nova Scotia Supreme Court said at para. 8: The appellant does, however have the burden of establishing on a preponderance of probability on the evidence as a whole that the respondent was the agency responsible for the defect which caused him injury. This he may discharge by showing circumstantially that the defect must have been there when the refrigerator left the factory. He can in my opinion do this if he can exclude the probability of some other person having created the hazard after the product left the factory. [58] Mr. Amirault concluded that of the six examples of possible causes of the hose failure that he referred to in his report, which he said

were all unlikely, the most likely was either the improper assembly of the hose or being subjected to Excessive Stresses when it was in service. He did not suggest, nor did the plaintiff argue, that the failure may have resulted from a combination of any of the possible causes. Mr. Amirault conceded that explanations exist for the failure of the hose which are as consistent with no negligence on the part of Aerostar as with negligence. [59] It is apparent that hose separations are rare. Mr. Moreiras' evidence was that of the millions of feet of hose manufactured by Parker, during his career with Parker he was aware of only 100 to 200 separations. He testified that the main cause was the improper insertion of the hose into the fitting when it was assembled. He said that most of the failed hoses involved crimp fittings and were not field attachable as in this case. He said of the hoses returned, 25% of the separations involving field attachable fittings were attributable to the use of the hose in the field. [60] The evidence of Mr. Moreiras is perhaps of some statistical value; however, in my view, it does not shed meaningful light on the cause of the hose separation in this case. Indeed, he said that Parker was unable to determine the cause of the separation in this case. [61] The plaintiffs argue that they presented cogent evidence to eliminate Excessive Stresses of the hose as

a likely cause of the separation, leaving improper assembly as the likely cause of the separation. The only evidence regarding the handling of the V15 hose over its 3½ years of ownership by the plaintiff was from the plaintiff and a former employee, Paul Laporte. [62] The plaintiff, Mr. Pennock, said that he always handled the V15 with care. He said that the V15 tank was never knocked over nor was the V15 hose ever pulled, yanked, bent or kinked. However, in cross-examination, he agreed that when the V15 tank and hose were out of his possession and control, such as when he handed them to a crew member before departing on a flight, the tank could have been hit by something or the fuel line could have been stepped on. As a result, I take Mr. Pennock's comments regarding the handling of the V15 tank and hose to relate only to the time that they were in his possession or control. [63] Mr. Laporte said that when the plaintiff used an auxiliary tank for inflation, such as the V15 tank, the plaintiff would disconnect the tank from the burner, wrap the hose around the tank and hand it to him or another member of the crew. He said that he would then put the tank in the back of a truck and follow the balloon to its landing place. Based on the number of flights taken in 2006 alone, the plaintiff would have handed the V15 tank and hose to an employee for handling and transportation many

times while it was in service. [64] There is no evidence as to how the V15 tank and hose were handled by employees including placement in the truck or whether they underwent any stresses during the time that they were transported. In cross-examination regarding the transportation of the V15 tank and hose in the truck, the plaintiff said he did not recall the tail end of the hose, which I take to be the unattached end, coming loose, but said that it was possible. During the time that a flight was taking place there is no evidence that the plaintiff would have known how the V15 tank and hose were being handled by his employees. [65] There is no evidence that the plaintiff instructed his employees, such as Mr. Laporte, as to how the V15 tank and hose were to be handled, or that they understood how it was to be handled by them. [66] The evidence of the plaintiff was that he coiled the V15 hose around the tank in a way that matched the shape of the hose. There was also evidence that other balloon operators followed the practice of wrapping a fuel hose around the tank when it was not in use. Mr. Moreiras testified that he had never seen a hose separate because of coiling or uncoiling. However, in cross-examination, Mr. Amirault said that he did not do an analysis of the stresses on the exemplar hose from coiling and uncoiling. As a result there is no expert evidence regarding the

effect on the V15 hose and fitting of being coiled and uncoiled over 500 times each season that it was used. [67] In my view, the evidence does not exclude the V15 fuel line being subject to some form of Excessive Stress as a likely cause of its failure, in particular, while it was not in the possession of the plaintiff. I am left unable to find that the failure of the hose was due to either one of the two most likely causes identified by Mr. Amirault. [68] Accepting that the two most likely causes of the hose failure were either improper assembly or Excessive Stress during service, and having concluded that the evidence does not exclude Excessive Stress as a likely cause, the plaintiff has failed to establish on a balance of probabilities that the failure occurred as a result of the improper assembly of the hose by Aerostar. [69] The plaintiff also submits that the design of the fuel system by Aerostar for GTRU was defective. In particular, the plaintiff says that with the knowledge of the risks of fire on a hot air balloon which Aerostar must have had, the fuel system should have been designed with safety features such as a 90-degree shutoff valve on the V15 tank, a thermal shutoff, an excess flow valve or a halon fire suppression system which are present on some balloons manufactured by other companies. [70] While the report of Mr. Senez concluded that there were fire

protection systems available for hot air balloons, I ruled that the effectiveness of such systems required expertise with fuel systems in hot air balloons that Mr. Senez did not have. The evidence of Mr. West, the chief technology officer of Raven Industries, was that such failsafe systems had been considered by Aerostar and rejected or not considered because, it can be inferred, of the risks associated with a system that is beyond the control of the pilot and stops the flow of fuel in the balloon. [71] I am also persuaded by Aerostar's submission that in the circumstances of the fire in this case, a failsafe mechanism, which had to be operated by the plaintiff as pilot, would not have prevented the injury to the plaintiff and the loss of the balloon. The evidence of the plaintiff was that the fire occurred in a "heartbeat." Also, he said that from the time when he heard a popping noise, it was almost instantaneous when he was effectively blown out of the gondola by the fire. It is also apparent that any device which stopped the release of propane from the tank when a fire occurred would not have prevented a fire resulting from liquid propane spraying out of the detached V15 fuel hose as it moved around inside the gondola. The plaintiff described being hit across his face by something, and liquid coming out of the fuel line and then being engulfed by flame. The evidence did not

establish the extent to which the fire and resulting injuries and damage was attributable to the propane escaping from the V15 tank itself or the propane escaping from the pressurized fuel in the V15 fuel hose. [72] The plaintiffs have not established that the inclusion in the balloon of any of the safety devices referred to would have prevented the fire and the resulting injuries and damage in this case. [73] The plaintiffs' statement of claim includes an allegation that the defendant, Aerostar, failed to warn the plaintiffs of the risks posed by the design and assembly of the propane burner system. As I have said, the evidence did not establish which of the two most likely causes identified by Mr. Amirault caused the failure of the hose; however, assuming that the failure was caused by its misuse while in service, the evidence does not establish that such misuse was foreseeable by the defendant Aerostar. Further, there is insufficient evidence to support a finding that any failure to warn by Aerostar caused the loss in this case. [74] The plaintiffs' claim is dismissed with costs to the defendant Aerostar. "Bowden J."