Porter v. Heritage Operating, L.P. (569 S.W.3d 686, 2018)

YVONNE T. RODRIGUEZ, Justice

In 2009, a fire engulfed the 4-H booth at the Fiesta de San Lorenzo Church carnival in Clint, Texas. Although the fire lasted only seconds, several teenage volunteers suffered burns, some of which were severe.

The cause of that inferno on the grounds of San Lorenzo Church is the central issue in this suit.

Appellants-plaintiffs in the court below (hereinafter "the Families")-contend that the fire was sparked by a leaking propane tank improperly filled by Heritage Operations, L.P. They also assert that the Catholic Diocese of El Paso, which through the San Lorenzo parish ran the Fiesta de San Lorenzo, was liable for failing to inspect the tank or otherwise ensuring safety standards at the festival. At trial, Heritage and the Diocese argued they were not liable for victim's injuries, in part, because the fire was in fact caused by a volunteer in the booth dropping ice or water into a vat of boiling grease. The jury sided with the propane company and the Diocese, finding the defendants not negligent and awarding the burn victims nothing.

On appeal, the Families ask us to reverse the jury's take-nothing verdict because it goes against the great weight and preponderance of the evidence. They also assert that the cumulative effect of numerous trial errors, including defense counsel's reference to the fire at closing argument as an "unavoidable accident," seriously undermines the integrity of the zero verdict, thereby warranting a new trial.

For the reasons that follow, we must affirm the trial court's judgment as to Heritage Operations, L.P., but reverse the judgment and remand for a new trial as to the Diocese.

I.

BACKGROUND

A.

Factual History

While the cause of the fire was the primary controversy at trial, many of the facts leading up to the incident are undisputed. For several decades, San Lorenzo Church has held an annual three-day festival on church grounds as a parish fundraiser. The Fiesta de San Lorenzo features rides, games, and food and drink booths that may be rented by various organizations. At the time of the fire, Lupe Gonzalez was the chairman of the festival.

The El Paso County 4-H Leaders Association rented a booth at the Fiesta de San Lorenzo for several years before the events in this case. The Association signed a contract with the Diocese. The Contract required the Club to pay a $650 rental fee. The Contract also set out certain rules. The Contract required "[t]he tenant and his/her staff" to abide by the conditions of the contract.

Bryan Diller provided two propane tanks for use by 4-H. At issue in this appeal is a gold American Society of Mechanical Engineers (ASME) propane tank that was located inside the booth attached to a steam table. As we discuss in further depth below, the evidence is disputed as to whether Heritage filled the gold ASME propane tank before the Fiesta de San Lorenzo and whether and at what rate the propane tank may have been leaking.

The 4-H booth was in operation from Friday to Sunday, the day of the fire. Four teenaged volunteers worked inside the 4-H booth on Sunday: Dawone Porter, thirteen years' old; Amanda Gutierrez, sixteen years' old; Armando Gutierrez, fifteen years' old; and Dylon Gordon, fifteen years' old. Dylon Gordon's mother Patty and Jennifer Eveler were the adults working in the booth. The relevant positions of the booth's occupants immediately prior to the fire were both a critical facet of the trial and undisputed. Viewing the booth with the back of the booth nearest to the viewer, the service counter spanned the front end of the booth. Near the front of the booth in the upper left-hand corner behind the counter sat a snow cone machine and a large ice chest. Dawone Porter was located next to the snow cone machine. In the middle of the front portion of the booth was a cash register. At the front of the booth in the upper right-hand corner was a steam table with the gold ASME propane tank underneath where volunteers assembled gorditas. Amanda Gutierrez was standing at the steam table. In the middle section of the booth, a refrigerator was located along the left-hand wall. In the center of the booth was a funnel cake fryer filled with oil. Along the right-hand wall of the middle section of the booth was a larger tip-style deep fryer. Narrow aisles allowed for passage between the refrigerator and the funnel cake fryer and the large fryer. Along the back wall on the left-hand side were sinks. Armando Gutierrez was located at a sink in the back left-hand corner of the booth. The exit door of the booth was located in the back right-hand corner of the booth. Dylon Gordon and Jennifer Eveler were situated in front of the back door. The relative positions of the parties are illustrated below in Figure 1, a hand-drawn map of the booth's layout and the parties' relative positions that was admitted at trial as Heritage Defense Exhibit 28.

The cause of the fire, the duration of the fire, and the sound the fire made were all points of contention at trial and will be discussed in greater depth later in this opinion. The different levels of physical injury the volunteers sustained were essentially undisputed. Armando Gutierrez suffered a burn on his hand that did not require emergency medical attention. Dylon Gordon suffered severe burns around his legs from his ankles up to his knees, and on his left elbow. Dawone Porter sustained burns from the top of her feet to almost the top of her thighs. Amanda Gutierrez had burns from her fingertips to her elbow on one arm, from her palm to other elbow on the other arm, on her stomach along the beltline, on her calves, and on the front and back of her legs. Porter, Gordon, and Amanda Gutierrez were all transported to the Texas Tech Burn Center in Lubbock for treatment.

B.

Procedural History

Pre-Trial

The Families sued Heritage, the Diocese, and individual defendants Francis Paneral, Bryan Diller, and Danelle Ivey, who held leadership positions in the Adult 4-H Leaders Club. The Families eventually settled with Paneral, Diller, and Ivey pre-trial and non-suited those parties, leaving only Heritage and the Diocese as parties for trial.

Trial in this case lasted approximately one month; all in all, the parties called thirty-five witnesses to testify. Although numerous issues arose during the course of trial, the two primary focuses of the trial from an evidentiary perspective were (1) whether Heritage negligently filled the tank in question despite it being allegedly defective, and (2) whether the plaintiffs' injuries were the result of a propane leak or a grease fire caused by a volunteer or volunteers.

Plaintiffs' Case

During their case-in-chief, the Families called three categories of witnesses: (1) those with knowledge of the tank and other equipment used in the booth; (2) eyewitnesses to the fire; and (3) expert witnesses. We will divide our recitation of witness testimony accordingly.

Testimony Regarding the Tank and Other Equipment

Bryan Diller was a past president of the Adult Leaders Association at the time of the festival and served as the ALA's safety officer. He provided the propane tank and much of the equipment the 4-H Club used in the booth. Diller testified that he had filled up the tank at Denman Propane, which was owned by Heritage. He maintained that he knew for certain he filled the tank there because he was treated rudely by a worker onsite.

On cross-examination, Diller testified that the cooler he gave to be used in the booth, which was in almost new condition, had been damaged in the fire, and there were marks in the right-hand corner of the cooler when the top was opened. One of the straps on the cooler that had been intact before the fire was broken after the fire. Diller further testified that before the fire, the funnel cake fryer was in better condition before the fire but that it had been "cosmetically" damaged in the fire and that plastic labels had been blistered or wrinkled by the fire. Diller also identified a cash register used in the booth. He testified that before the fire, the cash register had been clean, but after the fire, there was oily residue and speckles of grease on the cash register. Diller also testified that the fryer, which was in good shape before the fire, was covered in grease and "looked like somebody had picked it up in the wrong places and thrown it on the bed of a pickup." Other pieces of equipment were covered in grease, as well. Following the fire, there was also discoloration on the roof of the booth.

Diller stated that whenever he connected propane to the fryer, he would smell for gas and do a soap test to see if there were leaks. Diller performed these tests only when the tanks were changed; if the tanks had not been changed, he would smell for gas before lighting the fryer. Diller testified that on Saturday, someone told him that they smelled propane, but Diller did not smell propane in the booth. He did testify that he smelled propane outside the booth after he walked east and saw some men trying to connect a propane tank that was hissing, but the smell went away when the propane tank was connected. Diller stated that he had used the equipment at issue approximately fifty different times other than at the festival and had never had a propane leak or fire.

Diller explained that the booth had a procedure for bringing in ice and aguas frescas in from outside the booth: an adult would bring the items in below the level of the funnel cake fryer and would put the ice and liquids into the cooler, which would have been already taken off the snow cone machine and placed onto the ground. Once the ice was in the cooler, the cooler was taken off the ground and placed back onto the table.

Diller testified that Amanda Gutierrez told him that she injured herself during the fire when she grabbed the fryer as she fell. According to Diller, Amanda Gutierrez told him that Dawone was giving Dylan the cooler and that Mrs. Eveler was helping when there was a big fire.

Plaintiffs' counsel also read excerpts of Diller's deposition in their rebuttal case. Diller drafted an "Incident Investigation Abnormal Event" report in which he stated that an ice chest had some water in it. When asked how he knew there was water in the chest, Diller replied that was from his "personal knowledge" because he knew there was no way to put ice in an ice chest with a flat bottom, use an ice scoop to remove it, and get all the ice and water out of the chest, and no one told him that any ice or water in the chest had been dumped out. He maintained that even if the ice had been dumped out of the cooler, the cooler would likely still have water droplets in it. However, Diller was not present at the event on Sunday, and he admitted that he did not have evidence from anyone who looked at the chest after the fire confirming there was water and ice in it. He also did not ask anybody present in the booth whether the ice chest had been dumped out.

Manuel Provencio was Heritage's authorized representative for the case. He testified that Heritage kept receipts from all purchases, including cash purchases. Provencio said that receipts would usually have a customer's name on them, although when shown copies of certain Heritage receipts he admitted that they did not have names on them. On cross-examination, Provencio testified that he had reviewed Heritage's receipts and could not find one showing that Heritage had filled the tank in question.

Jose Jurado, a bottle filler from Heritage that was called by the plaintiffs, denied that Heritage had ever filled the tank at issue in this case; he had no memory of filling the tank, and Heritage had no receipts that would indicate the company filled the tank. He testified that it would be illegal to fill the tank at issue if it was not properly mounted. He also stated that he would look at a tank visually to see if there was damage, but that unless a customer said there was a leak, there would not be any tests done. On cross-examination, Jurado testified that every customer received a ticket after the company filled a tank and the ticket would be paid in the office. As far as Jurado knew, Heritage saved every single ticket. He said he had never seen the tank at issue before, and that it was a unique tank because it was painted gold whereas most standard tanks were gray.

Eyewitness Testimony

Clint Fire Department Chief Oliberto Lopez testified that he and others were providing emergency services for the festival and driving ATVs doing their rounds at the festival when he heard a loud sound coming from his left side that he described as a "crash," a "loud bang," and "like crumpling" of a building. He initially thought "two vehicles had collided." When he turned around, he saw a two or three second puff of black smoke that dissipated in the air at the 4-H booth about 300 feet from his position. Chief Lopez testified that it took him about three minutes to get through the crowd of people to the 4-H booth. When he arrived, he saw a young man and a girl yelling in pain with redness in their faces. Chief Lopez saw that one of the children had second-degree burns that had blistered and burst on her arms and legs. Chief Lopez testified that Ms. Porter arrived on the scene and rode with her child in the ambulance.

While he was helping care for the child, Chief Lopez heard a hissing sound coming from the general area, so he instructed one of his men to see if there was a relief valve going off. He confirmed that a pressure relief valve on a propane tank was going off. Chief Lopez did not smell propane. Although there was no fire when the fire crew arrived on scene, firefighters did spray 100 gallons of water through a fire hose at the propane tank to relieve heat from the tank. Chief Lopez observed grease on the floor at the backdoor entrance along with a pan full of oil, a broken light bulb on the floor, and the top front mesh screens of the booth had burned out. Chief Lopez testified that there was only one entrance into the booth and that the booth was about eight feet by ten feet and was a "tight" space because of all the tables and other items in the booth. Chief Lopez advised Lupe Gonzalez that if he needed to do an investigation, he needed to contact the El Paso County Sheriff's Office so they could get the El Paso fire marshals to investigate. According to Chief Lopez, Gonzalez said he was going to shut down the booth, and the bazaar continued.

On cross-examination, Chief Lopez stated that for six years, the Clint Fire Department provided both medical support and fire protection for the festival, and that in those six years, fire officials had dealt with three people that suffered burns, though none of the burns were serious enough to require hospitalization. Chief Lopez testified that dropping ice or water into hot grease could create "a small little explosion" and possibly a fire. He also testified that there was a difference between a flash fire and an explosion, and he did not believe there was an explosion in this case. Chief Lopez did not receive complaints from anyone at the festival about smelling propane. Chief Lopez observed black soot covering the floor and on some of the walls. Chief Lopez agreed with counsel that a pressure relief valve on a propane tank is designed to relieve pressure so that the tank does not explode, that pressure inside a propane tank can go up due to increasing temperatures, and that a properly functioning pressure relieve valve will close up again once the pressure in a tank drops back down to a certain amount. Chief Lopez said that the fire department put water on the tank to lower the temperature, that they were able to get the tank down to a low enough pressure for it to stop relieving through the pressure relief valve, and that to his knowledge, the pressure relief valve on the tank worked as intended. Chief Lopez opined that if there was a leak from the propane tank, putting water on the tank would not stop the leak.

On redirect examination, when asked if the fire sounded like a propane explosion or a grease fire, Chief Lopez stated that the fire sounded more like a propane explosion, since "[g]rease fires really don't make an explosion sound. It's more of a sizzling or hissing like bubbling sound." Chief Lopez testified that a grease fire will expand either upwards or outwards depending on where the grease falls, but that propane is heavier than air and that normally when there is a propane leak, the propane usually settles on the ground and that it will ordinarily ignite low to the ground. He opined that if there were people in a room with a propane leak, those people would have burns "lower to the ground at their feet."

Maria de la Luz Diaz also ran a booth at the Fiesta de San Lorenzo located next to the 4-H Booth. Diaz testified that she smelled propane on Friday. She used a propane tank located outside the booth that fed into the booth through a line to cook gorditas. She checked her tank to see if the smell was coming from her tank, then she told her neighbors on both sides that there was a smell of gas. She put soap on her neighbor's tanks and nothing happened; no gas came out. The next day (Saturday), Diaz smelled a little bit of propane when she stepped outside her booth, but not when she was inside her booth. On Sunday morning, she did not smell propane. Diaz testified that on Sunday, she heard a loud explosion that shook her booth and caused items on top of the refrigerator on her booth to fall to the ground. A few seconds later, she heard another one that was a little louder, at which point she ran. As Diaz ran from her booth, she heard crying and screaming and saw a girl running out of another booth crying with her hands, arms, and legs burned. She also saw two other children burned.

On cross-examination, Diaz testified that the booths were all inches apart and were almost touching. She also admitted that she did not know where the odor of propane was coming from. She continued to work despite the smell of propane and did not report it to authorities after she checked the tanks and did not smell propane inside her booth.

Armando Gutierrez was one of the teenagers volunteering in the 4-H booth. He testified that on Saturday, he and his friend Alex Eveler were told that the pilot light under the deep fryer had gone out and needed to be relit. Alex Eveler took a lighter with a long neck and relit the pilot light.

On Sunday, Gutierrez was working the booth along with his sister Amanda Gutierrez, Dylon Gordon, and Dawone Porter. Guiterrez testified that Sunday was Gordon and Porter's first day. According to Guiterrez, between five and six people were working the booth on Sunday, with Mrs. Eveler and Danelle Ivey going in and out of the booth. Gutierrez testified that he had just finished washing his hands in the booth and was turning around to get a paper towel when he heard and felt the first explosion. He then heard a crash that sounded like "two or three very large 2x4s" that had been dropped. After the crash, a second explosion went off that was "more like a big whooshing sound." Gutierrez was halfway out of the booth when the second explosion went off. Once he left the doorway, he stepped on Dylon Gordon, who was outside on the floor in front of the doorway. After Gutierrez passed Gordon, Gutierrez saw Danelle Ivey running toward him with a bowl of ice, and he put his hand in the ice because it was burning. Gutierrez burned his fingertip and the top of his right hand, and all the hair below his cap, his facial hair, eyebrows, eyelashes, and clothing were all singed. Gutierrez also described the injuries sustained by his sister Amanda, Dylan Gordon, and Dawone Porter. Gutierrez had his back to the funnel cake fryer when he was washing his hands and felt the first explosion, but he did not see or hear anyone pass ice over the fryer.

On cross-examination, Gutierrez testified that he did not smell propane in the booth on Friday, Saturday, and Sunday. When asked about an ice scoop used to get ice out of the cooler, Gutierrez stated that he never used the ice scoop and that in the three days he was in the booth, he only saw it twice outside of the booth. Gutierrez denied ever handling the cooler, and he did not see anyone else dump ice or water out of the cooler.

Jennifer Eveler, who was working in the booth, testified that the fire was a flash fire that happened very fast; "the flame came up and was gone." She sustained burns on her face, arm, and the front of both legs from the knee to the ankle. Eveler did not know what caused the fire. On cross-examination, Eveler denied operating the funnel cake fryer and stated that either an adult or an older teenager was operating the fryer.

Sandra Ortiz, an eyewitness who called 911, testified that she heard the fire when it happened from about twenty-five or thirty feet away. According to Ortiz, "[i]t was a boom, kind of like -- when you turn the stove on and it doesn't light up and then you, you know, you try to light it with either the lighter or a piece of paper to get the stove to go on[.]" She also stated that she saw a flame inside the booth. On cross-examination, Ortiz testified that she also mentioned seeing smoke to 911 dispatchers. On redirect, she said that the fire sounded like a deep boom like when a drum is hit.

Veronica Villela occupied a booth next to the 4-H booth. She testified that she smelled propane gas on Friday. She checked her tanks and did not find a leak. She initially testified that she did not remember smelling gas on Saturday, but after reviewing her deposition she testified she did smell gas around noon on Saturday. She was not present during the fire on Sunday. She arrived afterwards and saw that a tarp on the side of her booth had been burned. On cross-examination, Villela admitted that the gas smell could have come from her husband setting up propane tanks in their own booth. She did not remember smelling propane on Sunday. She admitted that in her deposition, she called the 4-H booth "badly organized." She did not report the smell of propane to anyone.

Jose Villela, the husband of Veronica, testified that he smelled gas on Saturday afternoon. He determined that the smell was not coming from his booth because he disconnected all the lines and could still smell gas. On Sunday, Villela was working in the booth when he saw and heard an explosion and saw a big fire, at which point he ran. He testified that the explosion was "very, very loud" and that it moved his full-sized refrigerator that was filled with food and soda "a little bit," and everything on top of it fell to the ground. When the fire started, he saw the tarp on his own tent start to burn. On cross-examination, Villela testified that he did not smell propane on Friday, and that on Saturday, the smell of propane dissipated. He further testified that he believed the booth was disorganized and poorly managed and asked a woman in the booth why so many young kids were working in the booth. On redirect, Villela testified that he saw about six to eight people in the 4-H booth and that of those people, two were adults. Villela also testified that the festival contract required that only four people be in a booth at a time.

Amanda Gutierrez was one of the teenagers who suffered burns. She testified that she worked the booth on Sunday. She entered the booth with Dawone Porter. Amanda Gutierrez stated that she and Porter were tasked with taking money, preparing gorditas by putting the filling inside the shell, preparing snow cones, and making potatoes on a stick and funnel cakes. Porter assisted Gutierrez. Gutierrez did not leave the booth from the time she first entered until the time of the fire about an hour later. Gutierrez testified that nobody in the booth made snow cones on Sunday except for her, nobody ever brought ice into the booth, and nobody ever passed ice in the booth at any time. According to Gutierrez, an ice chest was pushed under a table and was being used like a chair.

Gutierrez testified that before the fire, she was standing at the steam table. Dawone Porter was sitting where the cash register was on the opposite side of the booth. Gutierrez was making gorditas when she heard an explosion right behind her. When she turned around, she saw flames coming up from the floor to her face, so she put her hands in front of her face. Gutierrez testified that she closed her eyes and jumped for the door, which was straight away from the steam table. As she was crawling out the door, she heard a second crash, and she said she believed she had to have hit some things to be able to push herself out of the door. She testified that she may have kicked the big fryer, which was two or three feet away from the door, as she was trying to escape. Her hips were still inside the booth when she heard another explosion that was louder than the first one that sounded like a boom and shook the booth.

In describing her injuries, Gutierrez testified that all of her hair burned off, along with her eyebrows and eyelashes. Her lips and cheeks were burned, and she was burned from her fingertips down to her elbow on one arm and from her palm to her elbow on her other arm. She was also burned on the stomach along her beltline and on her calves and the front and back of her legs. Overall, she sustained burns to about fifteen to twenty percent of her body. Her pain level on a scale of one to ten was ten.

Gutierrez testified that she told an EMT on the scene that she thought something exploded inside the booth. She denied telling the EMT that the explosion had displaced her seventy feet, although that notation appeared in her medical records. She also testified that when she arrived at the hospital, she was not in the same room as Dawone Porter, and that she had not seen her since the accident. She denied ever speaking with Bryan Diller at the hospital or telling him that Dawone and a boy were passing an ice chest in the booth. She also denied knowing a woman named Shannon Pettigrew or ever having a conversation with her at the hospital, and she denied telling Pettigrew or any person that a bag of ice dripped water into grease. Gutierrez denied ever seeing anyone pass ice or drip water into the grease while she was in the booth. And although a medical notation in her hospital records said "[p]er patient, water was thrown into boiling oil and splashed," Gutierrez denied ever telling any nurse that happened. Another notation from the same time in her medical records stated that the injuries were the result of a propane tank explosion, but Gutierrez denied ever telling a nurse that, either. She was transferred from the hospital in El Paso to a burn treatment facility in Lubbock. She identified her treating physician at the burn center as Dr. Griswold, who treated her for eighteen months before releasing her.

On cross-examination, Gutierrez testified that although she was not able to play softball and volleyball the first year after her burns, she was able to play sports her junior and senior year of high school, and she was attending college for nursing at the time of trial. She stated that Dr. Griswold did not place any restrictions on her activities following her release. Gutierrez testified that she was standing at the steam table making gorditas when the fire happened. She saw the fire as she turned to her right coming up toward her face from under the funnel cake fryer. Her arms were not burned all the way around, and neither were her legs; she sustained burns on the back side of her calves. She testified that Dawone Porter was behind her when the fire started and she could not see what Porter was doing. Gutierrez did not smell any propane odor on Friday or Sunday. She testified that she did not remember telling a nurse at the hospital that ice or water was thrown into boiling oil and splashed, and denied making many of the statements contained in her medical records. She was on morphine during her initial hospital stay. She denied telling Bryan Diller or Shannon Pettigrew that she saw Dawone Porter passing a small ice chest to Dylon Gordon.

On redirect examination, Gutierrez testified that at the time of the fire, it had been between twenty and thirty minutes since the last time someone had ordered a snow cone from the booth. She reiterated that the fire came up from the floor around where the funnel cake fryer was located. Gutierrez said that she believed she knocked over some equipment as she tried to escape the booth, and she explained that she believed some of her burns came from oil because they were spots, and some came from propane that covered her arms outright.

Witness Robert Portillo was a lieutenant with the El Paso Fire Department. He was attending the festival off-duty with his son and was about fifteen or twenty feet away from the 4-H booth, walking in the opposite direction. Portillo testified that as he passed the booth, he heard a flash and then a rapid acceleration of fire that made a "whoosh" sound, and he saw white and black smoke billow out the front of the booth when he turned around. He saw that a young girl and a young boy had burns on their bodies. The boy had second-degree burns. Bystanders were attempting to put mustard on the boy's burns, but he told them not to and instead used a garden hose to wash him off. Portillo also saw another girl being tended to at the scene. Portillo did not enter the booth at any time. Portillo stated in his deposition that he saw flames come out of the top of the booth. On cross-examination, Portillo testified that he would not consider the fire here to be an "explosion," but rather a "rapid accelerated fire." Portillo also said that either a propane fire or a grease fire could have cause the flash fire and the dark smoke.

John Duran, Jr., was also another El Paso Fire Department firefighter that was at the festival off-duty. He and his wife were sitting at a table fifty to sixty yards away from the 4-H booth when he heard an explosion and saw black smoke. As he approached the booth, he saw that netting and a tarp around the booth had been burned, and he heard a secondary explosion. When he got behind the booth, he saw a female and another person inside. A boy was still inside the booth, so Duran entered the booth and got him out. He saw that the young people outside the booth had what looked to be second- or third-degree burns to their lower extremities with a lot of blistering.

Yvonne Gutierrez is the mother of Armando and Amanda Gutierrez. Yvonne Gutierrez testified that after she dropped Armando and Amanda off to work the 4-H booth, she got a call from Armando saying Amanda had been burned. Yvonne testified that when she arrived at the scene, she saw "all the chaos." Yvonne Gutierrez then saw her daughter Amanda with burns. She rode with Amanda in the ambulance to the hospital. When they arrived at the hospital, medical personnel took Amanda to another room and asked Yvonne to stay in the hall. Yvonne testified that she then ran into Rita Porter. Yvonne testified that Amanda's room was several rooms away from Dawone and Dylon's rooms. Yvonne accompanied her daughter to the burn center in Lubbock and described the process of caring for her to the jury. Yvonne also testified that after the fire, her son Armando still had some psychological and emotional problems stemming from the fire.

On cross-examination, Yvonne Gutierrez testified that her daughter Amanda had returned to playing softball and doing other activities later on about five or six months, when she was released from medical care. Yvonne Gutierrez denied ever hearing anyone say that Dawone Porter passed a bag of ice over hot oil, and she denied telling Shannow Pettigrew that ice was passed over hot oil.

Armando Gutierrez, Jr., who shares a first name with his son, is the father of Armando and Amanda Gutierrez and the husband of Yvonne Gutierrez. Armando Gutierrez, Jr., was working at his family's lake when his wife Yvonne called to tell him that their daughter Amanda had been burned at the festival, so he drove to the site of the festival. He drove to the hospital, where he saw his daughter for the first time with her burns. He testified that no one other than his family, the doctors, and nurses went into the room to talk to Amanda. He stated that Amanda's room was at one end of the emergency room, that each patient room was about 8x8 and separated by curtains, and that to his knowledge, the other kids were across the hall. He further testified that he stayed with Amanda in the hospital in El Paso until she was taken by airplane to Lubbock. He later joined his wife at the burn center in Lubbock. On cross-examination, he testified that neither his son or daughter ever told him they smelled propane.

Dylon Gordon was fifteen at the time of the fire. He testified that his job in the booth was to do food preparation, such as to cut potatoes that would be put into the deep fryer, and that, no part of his responsibilities required him to use the funnel cake fryer. At some point while he was working in the booth, an ice chest was removed so it could be filled with ice. Gordon testified that the ice chest was passed along an "assembly line" of people from Armando Gutierrez to Gordon to Jennifer Eveler and then Danelle at the door, where the chest exited the booth. Gordon testified that there was no water in the ice chest when the chest was passed to him. After the ice chest had been passed out of the booth, Gordon was facing the door when he heard a loud explosion and saw flames coming up from the floor, so he ran out of the booth about two booths down. Gordon did not feel any hot grease splatter on him as he left the both. He testified that as the fire happened, he was in a position to see if water had been dropped in grease, and no water fell into grease. Gordon's mother removed his shoes and another woman rubbed mustard on his legs. A man approached with a fire extingusher, but Gordon was not on fire. Then a man arrived and told the bystanders to get the mustard off his legs, and they began walking away from the scene to sit him on a large ice chest and run water on his legs. As he was walking, he saw Amanda and Dawone on another ice chest, where bystanders were running water on their burns. Gordon sustained severe burns around his legs from his ankles up to his knees between where his shorts ended and his socks ended; he was also burned on his left elbow. He was taken to the hospital in the same ambulance as Amanda Gutierrez. He testified that although the medical report contained the notation "SP propane tank explosion, hot oil spray from deep fryer," he did not know where that information came from and he did not tell the ambulance driver anything. He was given morphine and then flown to a burn center in Lubbock. Gordon identified his treating physician in Lubbock as Dr. Griswold. Upon discharge from the burn center in Lubbock, he still could not walk and had to use a wheelchair until he learned to walk again with physical therapy.

On cross-examination, Gordon admitted he had never worked in the 4-H booth before that day. He also admitted that although it was not his responsibility to make funnel cakes, he did have some involvement in helping his mother make funnel cakes. He testified that the ice chest was handed over the funnel cake fryer, but it was not open. When asked how he knew there was no water inside the ice chest if the ice chest was closed, he stated he could tell there was no water because the ice chest was not heavy, although he admitted he could not say for sure what was inside. Gordon did not smell propane on Sunday. He testified that adults Danelle Ivey, Francis Paneral, Jennifer Eveler, and his mother Patty Gordon and his father were all walking in and out at various parts of shift. He stated that shortly before the fire, Dawone Porter said she needed ice, and Dawone picked up the cooler and handed it over the funnel cake fryer to Armando. However, he maintained that the fire did not start until about twenty seconds after the ice chest had already left the booth. Gordon testified that none of the adults in the adult leader group ever explained the risks of working in the booth to him or gave him any training. Gordon denied ever calling Rita and Dawone Porter after they got back into town and telling them that he was sorry for what had happened.

Patty Gordon testified that before the fire there were two trips of ice chests coming in and out. One big ice chest was near Dawone Porter's position, and when she needed more ice, she would pass a smaller ice chest to Armando, who handed it to Dylon. The smaller ice chest was filled and passed back along the same line of people to Dawone, who would put the ice from the smaller chest into the bigger chest. On the second pass of the ice chest, Gordon testified that she saw the smaller ice chest was completely emptied into the bigger ice chest. After exiting the booth to take out trash, Gordon heard an explosion inside the booth and was worried that her son had fallen into the grease. She saw a flash of fire come out of the back door. Gordon only heard a single explosion. She then saw her son Dylon run from the booth with smoke coming off his legs. She testified that her son spent ten days at the burn hospital in Lubbock. On cross-examination, Gordon said she did not smell propane on Sunday. Gordon testified that she was mainly at the steam table making gorditas, and that Amanda was mostly cashiering, although she did help with funnel cakes. She testified she took the trash out after the ice chest had been passed out of the booth. She was unsure if there was a procedure for getting ice into the booth.

Mark Miller is Patty Gordon's common-law husband and Dylon Gordon's stepfather. He was present at the festival and hear two explosions from a picnic table about eight to ten feet behind the booth. He described the first explosion as being "a very deep sound" that was "like a big whooshing sound. Like how a home heater turns on right after you turn on the heater[.]"

It was loud enough to feel a shock wave. He described the second explosion as a "pop" that probably resulted from a fluorescent light falling. After helping the children get out of the booth, Miller shut off a propane tank located outside the booth, the propane tank under the middle fryer, and the steaming unit. Miller testified that he saw a flame coming from the bottom of the tank that was "jetting across the propane tank" and continued to burn even after he turned off the propane tank. A small plastic trash can with a few papers inside was also starting to catch fire. Miller saw oil on the floor, an ice chest near the snow cone machine, and a small ice chest between the refrigerator and the funnel cake fryer. He did not see any fire from the funnel cake fryer. On cross-examination, he testified he did not smell propane. He also stated that when the explosion happened, he was sitting at a table with his back to the booth and that Rita Porter was sitting opposite of him.

Rita Porter was the mother of Dawone Porter. Rita Porter testified that when she arrived at the festival, she met Danelle Ivey, who asked if Dawone was ready to work. Rita said that she was, although she testified that she told Ivey that she did not want Dawone around money or cooking because Dawone had "light cognition," which she testified was similar to a learning disability that gave Dawone a hard time in classroom settings and caused her to lose focus. Porter testified that she heard an explosion that sounded like a loud "whoosh." She compared it to a cooker being turned on or "old-fashioned heaters ... when you light them and they go 'whoom[.]' " Porter testified that Jennifer Eveler was on her way into the door when the second explosion happened. She further testified that she stepped over people into the booth to grab Dawone, who she saw was throwing a cord over her face and had suffered blisters on her legs. Porter testified that at the hospital, Dawone was intubated, given drugs to make her unconscious, and flown to the Lubbock burn center. Porter said she spoke only briefly with Shannon Pettigrew as they were going out the doors to the ambulance. Pettigrew asked about Dawone. Porter told Pettigrew that she had to go, but did not have a conversation with her.

On cross-examination, Porter stated that Dawone had a cognition disability. Porter testified that except for a few brief periods when she was in public school and private school, Dawone was mostly home-schooled because Porter did not approve of the way the schools handled Dawone. At trial, Dawone was sixteen years' old and was at the grade equivalent of a freshman in high school, although Porter said that if she had done the traditional public school program, Dawone would be a junior. Porter testified that she had signed up to volunteer at the 4-H booth at the festival through a friend, and she asked about whether there was going to be propane or oil in the booth because she had seen children cooking in the booths in previous years and she did not want Dawone around either propane or oil. She testified that she informed Danelle Ivey and others in a loud voice that she did not want Dawone around cooking or money and that she had learning disabilities. Danelle Ivey told her not to be concerned. Porter did not smell propane. Porter said that she saw Ted Ivey and another boy bring ice into the booth, and that they exited about two or three minutes before the fire. Porter admitted that at her deposition, she stated that she remembered Dylon Gordon telling her that he was sorry at the hospital and also two weeks after the Porters returned to their homes in a telephone call.

On redirect examination, Porter stated that at her deposition, she also mentioned the fact that Dylon Gordon had told her that Dawone was not part of anything, that there was something wrong with the propane tank, that the fire had started at the propane tank, that they had all tried to light the propane tank before, and that the explosion threw everything around in the booth, including oil.

Dawone Porter testified that Danelle Ivey assigned her to hand out napkins, utensils, and straws on the right-hand side of the front of the booth. She further testified that Ivey did not stay long in the booth before walking out, and that she did not give her any instructions when she was inside the booth. Dawone Porter did not know any of the other children in the booth. She left the booth for a short time to talk to her mother before re-entering the booth and staying about five minutes. She was facing the window at the front counter when she heard a very loud explosion. She turned around and heard a second loud explosion. She turned and tried to run but a girl from her left pushed her back and jumped over the flame, which described as being like "[w]hen a dragon shoots fire." Porter also tried to jump over the flame but ended up in the middle of it. She tried to exit, but there was a cord that hit her abdomen that would not let her go. As she tried to remove the cord, it also hit her arm, lip, nose, and ear before her mother put her hand toward her and got her out. Porter denied ever passing an ice chest over any equipment, touching ice, or making any snow cones.

On cross-examination, Porter stated that her mother did not come into the booth to check on anyone after Porter re-entered the booth. She disputed testimony from Eveler, Dylon Gordon, and Patty Gordon about an ice chest being passed over the fryer or ice being brought in the booth. Porter said that she did not know where the flame came from or how high it went.

Expert Testimony

Michael Huerta, Ph.D., was a plaintiff-designated expert in mechanical engineering. He examined the gold ASME tank at issue in this case. The tank was manufactured in 1990 and was nineteen years' old at the time of the fire. He tested the tank by pressurizing it with air to 100 pounds per square inch and applying a soapy solution to places where there might be leaks. He testified that he found a large leak in the overfill protection device (OPD) located toward the bottom of the tank. His testing was nondestructive and did not alter the condition of the materials. He made a DVD of his test. He testified that when he first received the tank, it had a new valve placed in it, but he did the test with the original valve. He also found a "very minute" leak in the pressure regulator that was not "significant." He opined that the OPD valve was defective at the time of the incident. He explained that the tank was very old and the valves had soft seating materials which could degrade with time. He also explained that his opinion was based on his review of deposition testimony in which witnesses testified they smelled propane on Friday and Saturday. Dr. Huerta believed the leak was of liquid propane and not propane gas because the tank still had liquid in the tank after the incident and because the particular valve at issue was located toward the bottom of the tank.

Dr. Huerta testified that in response to reading the deposition of Genevieve Bures, an expert for the Diocese, and Gary Lane Smith, an expert for Heritage, he determined that further testing was needed. Dr. Huerta used a grill with canola oil heated to 350 degrees and poured different amounts of water and videotaped the reactions. He testified that one ounce of water did not result in a fire. When he used eight ounces of water, the resulting flame lasted twelve seconds. He testified that a test done by another expert using sixteen ounces of water resulted in a flame that lasted more than fifteen seconds. None of the tests involving water and hot oil resulted in a boom or explosion sound. Dr. Huerta further testified that he witnessed a test of the valve that was performed by defense expert Dr. Eberhardt, and an "erratic" leak was found during that test as well, but the leak went away after pressure inside the tank rose to 220 PSI.

On cross-examination, Dr. Huerta said that he had never worked in the propane field or ever personally filled a propane tank. He also stated that pressure inside the tank would vary with temperature. Dr. Huerta did not quantify the leak rate in his test. Dr. Huerta admitted that although the valve leaked when it was tested in a chamber, when the valve was attached to the tank and the pressure inside the tank was raised to 220 PSI, the valve did not leak. The valve only began leaking at lower pressures.

The plaintiffs also called Timothy Dunn, a chemical engineer who worked with propane and natural gas, as an expert. He reviewed fire reports, discovery materials, videos, photographs, some of the appliances, and the propane containers. He also reviewed depositions and reports from defense experts Genevieve Bures, Gary Lane Smith, and Scott Davis. Based on his review of the physical evidence, he opined that the cause of the fire was a propane fire, not a grease fire. He stated that he believed the sounds that witnesses described as explosions or bangs indicated the ignition of propane; explosions or bangs were not sounds that were associated with a grease fire, as grease fires sounded more like a boiling noise or splattering. He also read the testimony of defense experts Bures and Smith that the fire was on and off in two to three seconds and said he believed that a short fire of that duration suggested a propane ignition, since propane burns quickly but a grease fire would last longer, "maybe 10 to 15 seconds." Dunn testified that overpressure that created movement in adjacent booths and rocked the booth enough to cause a light fixture to go down also suggested the fire resulted from a propane fire and not a cooking oil fire, as a grease fire would not create overpressure. He also believed that Mark Miller's testimony that there was a jet of fire from the propane tank was consistent with this being a propane fire. He also opined that testimony suggesting the fire came up from the floor suggested it was a propane fire, since propane is heavier than air, especially if it were to leak in liquid form. Any circumferential burns on the legs of the victims would also be consistent with a propane fire resulting from propane collecting near the floor, whereas burns from a grease fire would be splattered and directional, coming only from the side where the grease fire started. The lack of testimony regarding water being dropped into grease also suggested the existence of a propane fire. Dunn testified that heat and burn damage to plastics could have caused the black smoke. Dunn also opined that the reason people may not have smelled propane even if there was a propane leak was because the propane could have pooled low to the ground and there would have been cross-ventilation between the front counter and the back door that could have prevented people from smelling the propane from counter-level upwards. He further testified that the odor in propane is not always effective, and that studies showed some people mistake the smell of propane for general cooking odors.

Dunn explained that liquid propane leaking from the bottom of the tank would vaporize very quickly. Dunn criticized defense expert Dr. Scott Davis' calculations using a vapor leak scenario, stating that a four cubic-foot-per-hour leak in vapor form and a four cubic-foot-per-hour leak in liquid form would be very different, as the liquid leak would result in 1,080 cubic feet of vapor being allowed to build up per hour. Dunn believed that Dr. Davis' calculations as to the size of a hypothetical propane leak were off by a factor of 270 by virtue of using a vapor leak model.

Dunn testified that a propane valve should not leak at any pressure. Dunn described an OPD valve as having a float on a post, and when a tank is filled to 80 percent, the float and the post lever themselves against a valve so that the tank cannot be filled anymore. Dunn said that although propane tanks are not designed to fill up all the way, if the OPD valve is defective, it can allow a propane tank to be overfilled. Dunn testified that once a propane tank is filled, the pump shuts down, liquid is bypassed, and the process makes a distinct whining noise. Dunn testified that the National Fire Protection Association's Pamphlet 921, titled Guide for Fire and Explosion Investigations, is relied on by experts.

Dunn did not believe that grease splotches on the cash register machine were indicative as a grease fire; in his view, the grease splotches were on the back and side of the cash register facing customers, whereas if there had been a grease fire, the grease would have been on the keyboard of the cash register facing the funnel cake fryer. He also opined that if the fire had been a result of water being dropped in grease, Jennifer Eveler and Dylon Gordon would have borne the brunt of the burns and there would not have been a resulting overpressure or blast damage, but that ran counter to the testimony he had reviewed.

On cross-examination, Dunn admitted that he had not viewed the booth itself in person, and that prior to the date of his testimony, he had not viewed any of the cooking testimony or propane equipment. He also testified that it was possible for some propane to go through the floor and settle into the pallets below the booth. He did not view the valve itself but stated that he was familiar with the general principles of how the valves worked. He also stated that propane would not burn in liquid form. He stated that his understanding of Mark Miller's testimony was that Miller observed a flame coming out of the side of the tank where the regulator and pressure relief valve were, not at the location of the filler valve. Dunn did not review the depositions or statements of Shannon Pettigrew, Lt. Robert Portillo, Bryan Diller, Jennifer Eveler, or Lupe Gonzalez. He testified that hearing a "whoosh" sound would be consistent with a flash fire. He testified that black smoke results from incomplete combustion and could be the result of a canola oil fire, but typically not with propane unless there is incomplete combustion as well. Dunn stated that he believed the tank pressure at the time of the fire was at least 175 PSI, and if the temperature were over 100 degrees, the tank pressure would be about 200 PSI. Dunn disagreed with Dr. Huerta's conclusion that there had been a "explosion" because an explosion in his view would have damaged the booth. Dunn testified that a grease fire ignition could make a "whoosh" sound. Dunn believed that the injuries resulted from a propane flash fire which caused a fluorescent light fixture to fall, which in turn caused cooking oil to burn people as they tried to exit.

Edward Ziegler, a petroleum engineer, served as the plaintiffs' safety practices expert. He testified that he has spent most of his career involved with petroleum and gas products and that he used propane in his business and had filled bottles of propane.

Ziegler reviewed Dr. Huerta's videos and other litigation materials. Ziegler opined that the tank at issue should have never been filled and used at the carnival. He stated his belief that Heritage was negligent in filling the tanks based on the condition of the tanks, dates, and other factors. Zieglar told the jury that the gray forty-pound vertical tank was a Department of Transportation cylinder, and the other gold tank was an ASME tank. Ziegler testified that a DOT regulation prohibited a DOT tank that was over twelve years' old to be refilled unless the tank was requalified, meaning that it was inspected by a manufacturer or other qualified entity that recertified the cylinder. Ziegler further testified that the gray DOT tank in this case had been manufactured in 1985, meaning that after the twelve-year-mark in 2007, it would have been illegal to refill the tank and transport it on a highway absent requalification. Although the gray DOT tank was not the tank that allegedly leaked, Ziegler opined that Heritage was not following government regulations or accepted industry standards. With respect to the gold ASME tank, Ziegler explained that the tank was designed for permanent installation on a piece of equipment, such as being bolted on the side of a motor home. Ziegler testified that under a Texas Railroad Commission regulation, Heritage was prohibited from introducing gas into any container if any employees had knowledge or reason to believe that the container or system to which it is attached was unsafe or not installed in accordance with statutes or LP gas safety rules. Because Diller arrived at Heritage with an unmounted tank that was designed for permanent mounting, Ziegler opined that Heritage should have known that it was not allowed to fill the tank and should have never filled the tank. Ziegler also said that part of the standard procedure for refilling a tank would be checking for leaks; therefore, if someone testified they have not checked for leaks, that would be improper. He believed Heritage's actions rose to the level of gross negligence.

Ziegler also testified that he believed the Diocese's negligence proximately caused the explosion. Ziegler opined that the Diocese was aware of the potential for danger and fire hazards based on the contract, which showed him that the Diocese understood that compliance with state and federal regulations was necessary. The Diocese also retained the right to conduct inspections of booths. Ziegle referenced NFPA No. 101, a pamphlet known as the Life Safety Code, which dealt with people using or being present in a building and standards for things such as exits doors, egress and ingress, and the like. Per NFPA No. 101, a facility must have at least thirty feet of floor space per person inside. According to Ziegler, the booth had an area of 120 square feet, meaning that even if the space the equipment occupied was excluded, only four people should have been allowed inside the booth at a time. Ziegler faulted the Diocese for failing to have a safety program, not training people, or hiring an outside party to take care of safety.

On cross-examination, Ziegler testified that he believed it was improper for Danelle Ivey, who was in charge of the volunteers, to send Dawone Porter into the booth because she was both not trained and too young to be in the booth, and he faulted Ivey in part for the accident because she did not adequately train or instruct the children on fire safety. Ziegler also believed that Armando Gutierrez was too young to be working in the booth. Ziegler also faulted Bryan Diller for not knowing the regulations that applied to his equipment and putting in equipment in a public environment around teenagers, which was potentially dangerous. Ziegler also faulted Francis Paneral, who assisted and helped set up the equipment, and Jennifer Eveler, who was supervising the children. He opined that the filler valve on the ASME tank was defective.

The plaintiffs also called Dr. Joe Gonzalez, a physician board certified in physical medicine and rehabilitation, pain medicine, and occupational and environmental medicine by deposition. Dr. Gonzalez explained that physical medicine and rehabilitation involves treatment management for individuals with neurological and other conditions. He also explained that a life care plan is a document that identifies an individual's residual medication conditions related to an incident or injury and determines medical need and the cost of future care. He prepared a life care plan for Dawone Porter and testified that she had twenty-eight to thrity-three percent total body surface area burns in the lower extremities, along with inhalation injury with residual symptoms, painful burn scar, weight gain, deconditioning to physical activity, and depression. He explained his assessments of her future medical needs in detail.

The plaintiffs called Dr. John Griswold by video deposition. Dr. Griswold was the medical director of the Texas Tech Burn Center and treated Dylon Gordon, Dawone Porter, and Amanda Gutierrez. With respect to Dylon Gordon, Dr. Griswold testified that the burns on Gordon's legs could have been caused by a propane fire or grease fire, but that it was more likely to have been caused by a propane fire, given that flammable fuels are heavy and filter to the ground and that most of his patients who had those types of burns had them on the lower portions of their bodies. Dr. Griswold testified that the injuries caused to all children were more consistent with an accelerant or propane burn than a grease fire; the patients had very uniform burns with the same depth throughout located mostly in the lower extremities where accelerants tended to settle. The burns were also circumferential around a whole-body area, unlike with grease fires. Dr. Griswold explained that accelerant burns involve quick and deep skin injuries without much smoke inhalation, whereas grease burns will involve scald or splatter injuries where hot grease lands in one area, drops down the body part, and involves multiple levels of burn debt and irregular lines. Smoke inhalation and lung injuries are also more significant in grease fires. Dr. Griswold did note that Dawone Porter presented with smoke inhalation. Dr. Griswold agreed that he was not an expert in fire reconstruction or origin and causes of fires.

Defendants' Case

As did the Families, the defendants in this case called three categories of witness: (1) those dealing with the filling of the tank at issue; (2) eyewitnesses to the fire; and (3) expert witnesses.

Testimony Regarding the Filling of the Tank

George Veytia was a stockholder in the Border Restaurant Supply company before it closed ten years before trial. Border Restaurant Supply sold restaurant equipment, including hot food tables, although Veytia testifie