National High School
Mock Trial Championship
Case Materials 1
INTRODUCTION
Fifty years ago, on Halloween night, Indiana experienced its worst tragedy in its history. It was the opening night for the Holiday on Ice show at the Indiana State Fairgrounds Coliseum. A crowd of over 4000 people were watching the finale when a massive explosion occurred, hurling a 50-foot section of box seats, chairs, concrete and people into the air. Flames rose to the ceiling, bodies scattered across the ice. Over seventy people lay dead, and more than 400 were wounded. The victims were either severely burned or crushed by concrete. A memorial plaque honoring the explosion victims currently hangs inside the Coliseum's entrance.
The cause of the explosion was traced to a propane tank with a faulty valve in the concession area beneath the stands. The propane tank had been used to warm pre-popped popcorn. The vapors leaked to an unventilated room beneath the stands, and when the fumes reached an electric heater in the room, the massive explosion occurred.
Indiana’s tragic loss fifty years ago is the genesis, the kernel so to speak, for this year’s case for the National High School Mock Trial Championship. However, out of the respect for the families and friends affected by this tragedy, and to create a balanced case, this fictional case significantly departs from the actual event.
When ideas were generated for this year’s case, the case writers also wanted to include something related to the Indianapolis 500 as the race is what many from across the country and the globe associate with Indiana and Indianapolis. Thus, it seems only appropriate to reference that in May, 2011, the Indianapolis Motor Speedway celebrated the 100 th Anniversary of the running of the “Greatest Spectacle in Racing.”
Indiana has a rich history in the automobile industry. Elwood Haynes of Kokomo, Indiana, who designed the Pioneer , claimed it to be the first American automobile. By 1908, Indianapolis had risen to fourth in the country of automobiles produced. By 1913, it would rank second. Local automobile manufacturers included Marmon, Cole, Marion, and National, and later, Duisenberg and Stutz. The Indianapolis Motor Speedway opened in 1909. The racetrack is located 5 miles from downtown Indianapolis. The track’s original purpose was to provide a testing facility for the local automobile industry. The 2.5-mile oval track received the nickname “The Brickyard” because 3.2 million paving bricks were used to create the surface of the track. In 1936, some portions of the track were resurfaced with asphalt. By 1961, the remaining bricks were covered with asphalt except for a 3-foot strip at the start-finish line. In, 1945, Terre Haute, Indiana businessman Tony Hulman purchased the famous racetrack. It is currently owned by the Hulman-George family of Indianapolis and Hulman & Company, headquartered in Terre Haute, Indiana.
The inaugural race of the Indianapolis 500 was won by Ray Harroun. Not only does Harroun hold the record for the first champion of the Indy 500, but he also holds another record. No driver has ever come from the 28 th starting position (or worse) to win the race. Harroun was only twenty-nine years old when he achieved this historic victory.
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The race began the tradition of what was later coined the “Greatest Spectacle in Racing” as three drivers were bunched together for the last twenty miles of the race. The three drivers were within a lap of each other going into the last ten miles. Spectators at the track expected Ralph Mulford to surpass Harroun. In a nail-biting finish, Harroun crossed the finish line with a one minute and forty-eight second lead.
Harroun worked for Marmon Motor Company. He was not a trained racer; he was an engineer by trade. His real interest was engineering design, and the race was the perfect vehicle to test his designs. He had several innovative ideas that he incorporated into the “Marmon Wasp ,” aptly named for its yellow and black paint scheme and its sharp pointed wasp-like tail. The tail, for example, provided better aerodynamics for the racecar. Race car enthusiasts speculate that Harroun won the inaugural race because the Wasp was streamlined and the weight of the car was reduced by one person. He ingeniously designed the first rearview mirror for automobiles, somewhat as an afterthought. His racecar design thus eliminated a passenger seat for a riding mechanic, which the rules required to be aware of cars to the rear. All other cars in the race depended upon the extra passenger, which naturally added more weight to the car. His design caused controversy among the other drivers, who complained that the Wasp was a hazard because he would not be aware of vehicles overtaking his car. To placate the officials, Ray added a rearview mirror, and ultimately it was allowed. With less weight and the streamlined tail of the car, Harroun succeeded in showing the world his engineering brilliance.
He retired after the 1911 race, claiming that the endurance race was too dangerous. In summing up his racing career, he said, “The track was fierce. In the last 200 miles it was like a sheet of glass and I never knew how long I was going to be able to keep her on the course. I'm glad it's over, and I'm glad I'm alive. No more for me.”
250,000 Marmon cars were produced. Fewer than 350 still exist today. The Marmon Wasp is currently located at the Indianapolis Motor Speedway Hall of Fame Museum and has made appearances at both the 50 th Anniversary and the 100 th Anniversary of the race. 1963 Indy 500 champion Parnelli Jones was behind the Marmon Wasp’s wheel for the Centennial celebration in 2011.
The Speedway Hall of Fame Museum is located in the infield of the raceway park, between Turns 1 and 2 of the oval. The Museum is recognized as one of the top museums in the world devoted to automobiles and auto racing and is designated a National Historic Landmark. In addition to a variety of antique and current race cars, the Museum houses a trophy collection, including the Borg-Warner Trophy presented annually to the Indianapolis 500 winner. The Speedway is part of the soul of Indianapolis, which welcomes you to experience the many unique people and places that we have to offer.
We hope you will enjoy this year’s National High School Mock Trial Championship case and your time in Indianapolis!
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CASE SUMMARY
On April 1, 2011, Plaintiff, Vintage Theater Productions, LLC was preparing for its opening night debut of its first stage production, “ The Wasp .” At 6:40 p.m., before theater-goers arrived, an explosion occurred ripping the building apart and shooting a fireball high into the air.
Joe/Jo Kerr, an employee of Vintage Theater Productions, was pre-popping popcorn to be placed in popcorn warmer in anticipation of the crowd. The popcorn maker and warmer were fueled by propane gas, supplied by Defendant Pro Propane Products, Inc. Four propane tanks had been delivered earlier in the week to the theater. All four tanks were placed in a small, unventilated storage room of the theater along with the popcorn machine, warmer, popcorn oil, and a portable heater. Joe/Jo Kerr had connected the propane tank’s hose to the popcorn appliances. He/she claims that the valve on the propane cylinder for the popcorn warmer was rusty and difficult to turn to an “on” or “open” position, so he/she used a wrench, striking the propane container and the valve. But was the integrity of the propane cylinder and valve already compromised from the corrosive effect of the rust? Or was the gas leak caused by a saboteur or a prankster on April Fool’s setting off fireworks? Should a percentage of the fault be attributable to the State Marshal’s Office for failing to properly inspect the Vintage Theater premises for fire and building code violations? Your trial awaits you.
Plaintiff’s Witnesses: Mel Lowe – Owner of Plaintiff Vintage Theater Productions LLC Joe/Jo Kerr – Employee of Vintage Theater Productions, LLC Ray/Rae D. Ent – Indianapolis Fire Department Investigator
Defense’s Witnesses: Cash Proffitt – Owner of Defendant Pro Propane Products, Inc. Dee Part – Former Partner and Adjacent Property Owner of Vintage Theater Lou M. Nuss – Expert Witness
Exhibits: 1. Diagram of Vintage Theater Productions 2. Wasp Lease 3. Photograph of Replica of Wasp 4. Insert/flyer for popcorn maker 5. User Guide for popcorn maker 6. Invoice for the propane tanks 7. Fire Investigation Consent to Examine Scene 8. Initial Preliminary Fire Investigation Report 9. Supplemental Preliminary Fire Investigation Report 10. Indiana State Police Crime Laboratory Report 11. Final Fire Investigation Report 12. Delivery receipt for the propane tanks 13. Safety Warning Sheet 14. Curriculum Vitae of Lou M. Nuss
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The Introduction and Case Summary are not to be used as evidence in the case, but rather are provided for background purposes only. This case is a work of fiction. The names and events described herein are intended to be fictional. Any similarity or resemblance of any character to an actual person or entity should be regarded as only fictional for purposes of this mock trial exercise.
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STATE OF INDIANA ) IN THE MARION SUPERIOR COURT ) SS: COUNTY OF MARION ) CAUSE NO. 49D12-1111-CT-74602
VINTAGE THEATER PRODUCTIONS, LLC, ) ) Plaintiff, ) ) vs. ) ) PRO PROPANE PRODUCTS, INC., ) ) Defendant. )
COMPLAINT
Plaintiff, Vintage Theater Productions, LLC, by counsel, respectfully submits its
Complaint against the Defendant Pro Propane Products, Inc., and states as follows:
1. The Plaintiff, Vintage Theater Productions, LLC (“Vintage”) is an Indiana limited liability company, with its principal place of business located at 454 E.
Washington Street, Indianapolis, Marion County, Indiana. Vintage is registered to do business in the State of Indiana.
2. Defendant Pro Propane Products, Inc. (“PPP”) is an Indiana corporation, with its principal place of business located at 2820 Bluff Road, Indianapolis, Marion
County, Indiana. PPP is registered to do business in the State of Indiana.
3. Vintage owns and operates a theater for stage productions located at 454
E. Washington Street, Indianapolis, Indiana.
4. On or before April 1, 2011, Vintage contracted with Defendant PPP for the purchase of propane for the intended purpose of using it as fuel for the theater’s popcorn popper and popcorn warmer.
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5. On or before April 1, 2011, Defendant PPP delivered to Vintage four (4) steel cylinder tanks filled with propane per the terms of the parties’ agreement.
6. Said propane tanks were placed by PPP in a storage space at Vintage
Theater, which also contained the popcorn popper, popcorn warmer, popcorn oil, and portable heater.
7. The popcorn popper, popcorn warmer, popcorn oil, portable heater and propane tanks were located near a storage area where props for the stage production were held, including a replica of the 1911 Marmon Wasp automobile, which was on lease to
Vintage for the stage production of “ The Wasp .”
8. PPP did not advise Vintage that the location of the propane tanks in the storage area was improper.
9 PPP did not provide any written or oral instructions to Vintage for the storage or use of the propane tanks.
10. On Friday, April 1, 2011, at approximately 6:30 p.m., Vintage was preparing for a stage production of its play, “ The Wasp ,” which show was scheduled to commence at 8:00 p.m., and the doors to be opened for the theater’s patrons at 7:15 p.m.
11. As part of the preparations for its show, Vintage’s employees popped popcorn and utilized a Sure-Fire popcorn warmer to keep the popped popcorn warm for the theater patrons.
12. One of the propane tanks supplied by PPP to Vintage was utilized to fuel the popcorn popper, and another PPP propane tank was utilized as fuel for the popcorn warmer.
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13. Unbeknownst to Vintage, the valve on the PPP propane tank for the popcorn warmer was faulty, causing gas to leak.
14. At approximately 6:40 p.m., the propane tank used for the popcorn warmer exploded and caused the three other propane tanks stored in the same area to explode.
15. The massive explosion, and the fire that ensued, caused significant damage to the Vintage building, damage to an adjacent property – the Melody Building, and obliterated the Wasp replica, props, costumes, and other property owned by Vintage.
16. Defendant failed to properly inspect the propane tank.
17. Defendant knew, or should have known, that the valve on the propane tank was defective and leaking gas.
18. Defendant knew, or should have known, that the leaking propane tank was a safety hazard.
19. Defendant knew or should have known that it was improper to store the propane tanks in an unventilated storage area.
20. Defendant failed to warn Vintage, or its employees, as to the proper storage and usage of the propane tanks.
21. At all relevant times herein, Defendant owed Vintage a duty of reasonable care.
22. Defendant breached its duty of reasonable care to Vintage in that it:
(a) failed to adequately maintain and inspect the propane tanks delivered to Vintage;
(b) failed to warn of a harmful condition of which it knew or, in the exercise of reasonable care, should have known;
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(c) failed to keep the propane tanks in reasonable repair;
(d) failed to notice, fix or warn about existing unsafe conditions and reasonably foreseeable hazards;
(e) failed to observe and/or implement all reasonable measures and good safety practices regarding the operation of the propane tanks;
(f) failed to instruct Vintage of the proper operation and storage of the propane tanks; and/or
(g) failed to warn Vintage of the safety risks of improper operation and storage of the propane tanks.
23. As a direct and proximate result of Defendant’s negligence, Vintage sustained significant property damages and loss, including damages incurred due to the destruction of leased property.
24. As a direct and proximate result of Defendant’s acts of negligence,
Vintage suffered the loss of income from its business during the time the building was renovated due to the damage caused by the explosion and Defendant’s negligence.
WHEREFORE, Vintage prays for judgment against the Defendant in an amount that is fair to reasonably and adequately compensate it for the losses and damages described above, together with costs, interest and attorneys’ fees.
REQUEST FOR JURY TRIAL
Plaintiff, by counsel, requests trial by jury.
Respectfully submitted,
_/s/ Ida Settle ______Sioux Moore & Settle P.C. Attorneys for Plaintiff
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STATE OF INDIANA ) IN THE MARION SUPERIOR COURT ) SS: COUNTY OF MARION ) CAUSE NO. 49D12-1111-CT-74602
VINTAGE THEATER PRODUCTIONS, LLC, ) ) Plaintiff, ) ) vs. ) ) PRO PROPANE PRODUCTS, INC., ) ) Defendant. )
ANSWER TO COMPLAINT
Defendant Pro Propane Products, Inc. (“PPP”), by counsel, for its Answer to
Plaintiff’s Complaint, states as follows:
First Defense
Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
Second Defense
For Plaintiff’s enumerated paragraphs, Defendant PPP answers as follows:
1. Defendant admits the allegations of paragraph 1 of Plaintiff’s Complaint.
2. Defendant admits the allegations of paragraph 2 of Plaintiff’s Complaint.
3. Defendant admits the allegations of paragraph 3 of Plaintiff’s Complaint.
4. Defendant admits the allegations of paragraph 4 of Plaintiff’s Complaint.
5. Defendant admits the allegations of paragraph 5 of Plaintiff’s Complaint.
6. Defendant denies the allegations of paragraph 6 of Plaintiff’s Complaint.
7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 7 of Plaintiff’s Complaint.
8. Defendant denies the allegations of paragraph 8 of Plaintiff’s Complaint.
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9. Defendant denies the allegations of paragraph 9 of Plaintiff’s Complaint.
10. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 10 of Plaintiff’s Complaint.
11. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 11 of Plaintiff’s Complaint.
12. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 12 of Plaintiff’s Complaint.
13. Defendant denies the allegations of paragraph 13 of Plaintiff’s Complaint.
14. Defendant denies the allegations of paragraph 14 of Plaintiff’s Complaint.
15. Defendant denies the allegations of paragraph 15 of Plaintiff’s Complaint.
16. Defendant denies the allegations of paragraph 16 of Plaintiff’s Complaint.
17. Defendant denies the allegations of paragraph 17 of Plaintiff’s Complaint.
18. Defendant denies the allegations of paragraph 18 of Plaintiff’s Complaint.
19. Defendant denies the allegations of paragraph 19 of Plaintiff’s Complaint.
20. Defendant denies the allegations of paragraph 20 of Plaintiff’s Complaint.
21. Defendant denies the allegations of paragraph 21 of Plaintiff’s Complaint.
22. Defendant denies the allegations of paragraph 22 of Plaintiff’s Complaint, including all sub-paragraphs.
23. Defendant denies the allegations of paragraph 23 of Plaintiff’s Complaint.
24. Defendant denies the allegations of paragraph 24 of Plaintiff’s Complaint.
Affirmative Defenses
1. Defendant did not proximately cause Plaintiff’s alleged damages.
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2. Plaintiff’s own contributory negligence or fault was the sole cause of the
accident and Plaintiff’s damages.
3. Plaintiff’s claims should be barred or proportionately diminished on account
of its own contributory negligence or fault, pursuant to the Indiana
Comparative Fault Act.
4. The Plaintiff’s damages were caused, in whole or in part by non-party, The
State of Indiana, the Office of the State Marshal.
5. Plaintiff failed to mitigate its damages.
WHEREFORE, Defendant Pro Propane Products, Inc. prays for judgment in its favor, that Plaintiff take nothing by way of its complaint, and for relief just and meet in the premises.
/s/ Shirley Wiede-Wynn ______Howe Dewey Wynn, LLP Attorneys for Defendant
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STATE OF INDIANA ) IN THE MARION SUPERIOR COURT ) SS: COUNTY OF MARION ) CAUSE NO. 49D12-1111-CT-74602
VINTAGE THEATER PRODUCTIONS, LLC, ) ) Plaintiff, ) ) vs. ) ) PRO PROPANE PRODUCTS, INC., ) ) Defendant. )
STIPULATIONS
Note: No witness may contradict or deny knowledge of the facts contained in the stipulations.
1. All exhibits included in these Case Materials are authentic and accurate in all respects; no objection to the authenticity of these exhibits will be entertained. Unless stated otherwise herein, the admissibility of the exhibits on other grounds may be challenged. Stipulated facts may be offered as evidence, without objection, except relevancy objections may be permitted.
2. All witness statements were signed under oath by each witness. Each witness has reviewed his/her statement for accuracy, and no changes were made. Each exhibit or statement that bears a signature or initials of a witness is presumed to have been signed by the witness on the date indicated on the exhibit or statement.
3. All standard forensic procedures were followed in this investigation. There are no objections as to the chain of evidence and/or chain of custody.
4. In Indiana, it is not required to tender an expert witness prior to introduction of the opinions and conclusions of such expert witness.
5. On March 31, 2011, temperatures in the Indianapolis area were low of 28 o, high of 49 o, and a mean of 38 o. On April 1, 2011, temperatures in the Indianapolis area were low of 32 o, high of 57 o, and a mean of 42 o.
6. After the explosion and fire, Vintage Theater Productions expended $311,032 for work done on the theater building and the Melody building, and to replace the props, costumes, and equipment consumed or damaged by the explosion, fire, smoke and water.
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7. The words or terms “cylinder” and “tank” are used interchangeably and refer to the same type of container.
8. Exhibit 1 is not to scale but generally represents the layout of Vintage Theater Productions. The directional orientation for Exhibit 1 is as follows: top of the page is south, bottom of page is north, left side of the page is east and right side of the page is west.
9. Exhibit 3 is a true and accurate depiction of the Wasp replica leased by Vintage Theater Productions from Classics Automobile Leasing Limited.
10. Exhibits 4 and 5 were made at or about the time of the events by a person with knowledge of the events, and are kept in the course of regularly conducted business of the Poppity Pop, and it is the regular practice of Poppity Pop to make such records. Exhibits 4 and 5 do not need to be introduced through the custodian of the records.
11. The real party in interest in this case is Vintage Theater Productions, LLC. In Indiana, the suit does not need to name any insurance company that has subrogation rights.
12. Exhibit 10, the failure analysis conducted by the Indiana State Crimes Lab, is admissible without further foundation. However, relevancy objections may be made.
13. The italics on Exhibit 12 denote that such statements, words, and initials were handwritten by Mel Lowe.
14. In the summer of 2010, Joe/Jo Kerr entered a plea of nolo contendere to a charge of conversion for the flag stealing prank.
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APPLICABLE LAW, RULES OR REGULATIONS
Ind. Code 35-44-2-2. False Reporting. (d) A person who : * * * (2) gives a false alarm of fire to the fire department of a governmental entity, knowing the alarm to be false; [or] (3) makes a false request for ambulance service to an ambulance service provider, knowing the request to be false; * * * commits false informing, a Class B misdemeanor. However, the offense is a Class A misdemeanor if it substantially hinders any law enforcement process or if it results in harm to an innocent person.
Ind. Code § 35-41-2-4. Aiding, Inducing or Causing an Offense. A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person: (1) has not been prosecuted for the offense; (2) has not been convicted of the offense; or (3) has been acquitted of the offense.
Ind. Code §35-50-3-3. Class B misdemeanor . A person who commits a Class B misdemeanor shall be imprisoned for a fixed term of not more than one hundred eighty (180) days; in addition, he may be fined not more than one thousand dollars ($1,000).
Ind. Code 22-11-20-6 (b). Illegal storage or transportation of ammonia. A person who knowingly or intentionally stores or transports anhydrous ammonia (NH3) or an ammonia solution: (1) in a container that does not; or (2) with appurtenances that do not; conform to the requirements of a law governing the design, construction, location, installation, or operation of equipment for storage, handling, use, or transportation of anhydrous ammonia (NH3) or an ammonia solution commits a Class A misdemeanor.
Ind. Code 35-43-4-3 provides that a person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.
Ind Code 35-50-3-2 provides that a person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year; in addition, he may be fined not more than five thousand dollars ($5,000).
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Fire Safety Codes :
“Cylinder” shall be defined as a compressed gas cylinder having a maximum water capacity of 1000 lbs. This is approximately equivalent to 120 gallons of water.
5.2.6.1 Cylinders of 1000 lb. (454 kg) water capacity [nominal 420 lb. (191 kg) LP-Gas capacity] or less shall incorporate protection against physical damage to cylinder appurtenances and immediate connections to such appurtenances when not in use by either of the following means: (1) A ventilated cap or (2) A ventilated collar.
7.2.2.5 Valve outlets on cylinders of 108 lb. (49 kg) water capacity [nominal 45 lb. (20 kg) LP-Gas capacity] or less shall be equipped with an effective seal such as a plug, cap, listed quick-closing coupling, or a listed quick-connect coupling.
8.2.1.1 Cylinders in storage shall be so located as to minimize exposure to excessive temperature rise, physical damage or tampering.
8.2.1.3 Cylinders stored in buildings in accordance with Section 8.3 shall not be located near exits, stairways, or in areas normally used, or intended to be used, for the safe egress of people.
8.2.2.1 Cylinder valves shall be protected as required by 5.2.6.1 and 7.2.2.5.
8.3.2 Storage within Buildings Frequented by the Public and in Residential Occupancies.
8.3.2.1 The quantity of LP-Gas in cylinders stored or displayed shall not exceed 200 lb. (91 kg) in one location, with additional storage separated by 50 ft. (15 m). The maximum quantity to be stored in one building shall not exceed 1000 lb. (454 kg).
8.5.1 Storage locations, where the aggregate quantity of propane stored is in excess of 720 lb. (327 kg), shall be provided with at least one approved portable fire extinguisher having a minimum capacity of 18 lb. (9.2 kg) dry chemical with a B: C rating.
8.5.2 The required fire extinguisher shall be located no more than 50 ft. (15 m) from the storage location.
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JURY INSTRUCTIONS
Instruction No. 1
Negligence is the failure to use reasonable care. A person may be negligent by acting or by failing to act.
Instruction No. 2
Reasonable or ordinary care is the care a reasonably careful and ordinarily prudent person would use under the same or similar circumstances.
Instruction No. 3
An act or omission is a proximate cause of an injury if the injury is a natural and probable consequence of the act or omission.
Instruction No. 4
Contributory negligence is negligence on the part of the plaintiff.
Instruction No. 5
You must decide this case according to the Indiana law of comparative fault. The term “fault” refers to conduct that makes a person responsible, in some degree, for an injury. The type of fault at issue is negligence. The Plaintiff has the burden of proving by a preponderance of the evidence that fault on the part of the Defendant caused, in whole or in part, the damages of the Plaintiff.
Instruction No. 6.
Plaintiff’s fault, if any, is an issue in this case. If the plaintiff’s fault proximately contributed to its damages, then the plaintiff either will receive no compensation or will receive only partial compensation for the injury. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff was at fault.
Instruction No. 7
The plaintiff must use reasonable care to minimize its damages. This is called mitigation of damages. If you find the plaintiff failed to use reasonable care to minimize any of the damages it alleges it has sustained and that failure was a proximate cause of any of the damages it claims, then such conduct would constitute fault to be assessed against the plaintiff. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff failed to use reasonable care to minimize its damages.
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Instruction No. 8
A corporation or limited liability company must act through its officers, employees, or agents. Any act or omission of an officer, employee, or agent acting within the scope of that person’s authority is considered in law to be the act of the corporation or limited liability company.
Instruction No. 9
(1) The jury shall determine the percentage of fault of the plaintiff, of the defendant, and of any person or entity who is a nonparty. In assessing percentage of fault, the jury shall consider the fault of all persons who caused or contributed to cause the alleged damage to property, tangible or intangible, regardless of whether the person was or could have been named as a party. The percentage of fault of parties to the action may total less than one hundred percent (100%) if the jury finds that fault contributing to cause the plaintiff's loss has also come from a nonparty or nonparties. (2) If the percentage of fault of the plaintiff is greater than fifty percent (50%) of the total fault involved in the incident which caused the plaintiff’s property damage, the jury shall return a verdict for the defendant and no further deliberation of the jury is required. (3) If the percentage of fault of the plaintiff is not greater than fifty percent (50%) of the total fault, the jury then shall determine the total amount of damages the plaintiff would be entitled to recover if contributory fault were disregarded. (4) The jury next shall multiply the percentage of fault of the defendant by the amount of damages determined under subdivision (3) and shall then enter a verdict for the plaintiff in the amount of the product of that multiplication.
Instruction No. 10
Violation of a duty proscribed by a statute or ordinance constitutes negligence per se if the statute or ordinance is intended to protect the class of persons in which the party is included and to protect against the risk of the type of harm which has occurred as a result of its violation.
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1 STATEMENT OF MEL LOWE 2 3 My name is Melvin/Melanie Lowe. I’m not one that stands on formality, so 4 everyone calls me “Mel.” I reside at 5677 Broad Ripple Avenue, Indianapolis, Indiana. I 5 have been a resident of Indianapolis, Indiana for the past five years. I was drawn to the 6 Broad Ripple area because it is socially and ethnically diverse, and the people are 7 passionate about the arts. Kurt Vonnegut and David Letterman were raised in or near 8 Broad Ripple. Plus, its proximity to Clowes (pronounced “clues”) Memorial Hall of 9 Butler University, my alma mater, provided the opportunity for me to enjoy quality 10 musical performances and theater productions. 11 I grew up in a small, rural town about an hour and a half north of Indianapolis. 12 One of the town’s notable residents is Jimmy Hanley, who most is known for his song 13 “Back Home Again in Indiana” which has been performed by Jim Nabors at nearly every 14 Indy 500 race since 1972. Hanley was also a vaudeville accompanist and wrote songs for 15 many Broadway productions. As I was growing up, some family and teachers who knew 16 of him would talk about his accomplishments. I too yearned for the big city life and 17 seeing my name on a Broadway marquee. 18 So, after high school, I attended Butler University and earned my Bachelor of 19 Arts in English - Writing. I then attended Sarah Lawrence College in Bronxville, New 20 York and earned a Masters in Fine Arts in Playwriting. Sarah Lawrence suited me well 21 as they encourage building your own curriculum with a do-it-yourself philosophy. At 22 SLC, I had the opportunity to have jobs and internships in New York theaters. I attended 23 as much theater as possible to study the craft more. 24 I loved living in New York City, and settled there in the SoHo district for the next 25 nine years. Although most playwrights struggle to have their voices heard, my voice rang 26 loud and clear. I gravitate to dynamic, historical subjects that I believe have a compelling 27 story to tell and have not received much attention in literary works. A study of a 28 historical figure often lends itself to exploration of the human spirit for innovation and 29 leadership, and it fosters introspection of our own desire for leaving our mark on the 30 world. I guess you could say my creative writing appeals to a wide audience. While 31 working on my M.F.A., one of the plays I wrote and produced received the Young 32 Playwrights Award. My success continued after completing my M.F.A. Several of my
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1 plays were picked up by Off-Broadway theaters. I received two OBIE (Off Broadway) 2 awards – one for Best New American Play and the other for Playwriting, and I also was a 3 Pulitzer Prize finalist. 4 I returned to Indiana in the fall of 2007 when family health issues necessitated 5 that I move closer to home. Immediately, I connected with several artists in the area. I 6 held workshops for budding writers as a source of steady income. With my star power, 7 the classes filled quickly. It proved to be not only lucrative but also an opportunity to 8 connect with patrons of the arts and generous benefactors. I was encouraged by the art 9 community and these benefactors to start a theater company, bringing my talents to the 10 Indianapolis community. 11 One of the workshop attendees was Dee Part. Dee and I connected because Dee, 12 like me, grew up in a small community in the Midwest, and pursued a college education 13 on the East Coast. We are both interested in historical subjects too. Dee has a Masters in 14 Journalism and had taken my workshop to explore writing a historical piece. 15 In October, 2009, Dee and I formed Vintage Theater Productions, LLC to 16 showcase stage productions on a variety of historical subjects. In January, 2010, I located 17 an abandoned warehouse in the heart of the city at 454 East Washington. The area had 18 recently undergone some changes. Businesses wanting a more eclectic atmosphere were 19 moving into the neighborhood. The City of Indianapolis also provided tax abatements 20 and grants for revitalization projects in the area. The warehouse was perfect for our 21 productions, so the Company purchased it, and immediately began restoring it for a 250- 22 seat theater. Dee and I also invested in a smaller building immediately adjacent to the 23 warehouse to be used as a coffee and dessert shop for theatergoers to enjoy after the 24 show. We named the shop, Melody, incorporating our names, Mel Lowe Dee. 25 I convinced several wealthy patrons of the arts to invest in the future of Vintage 26 Theater Productions and financing the two buildings. Dee invested $40,000 into the 27 projects, which was all he/she could afford. I invested close to $200,000 of my own 28 money. And, of course, I had the connections to the benefactors and our investors in the 29 Theater Company. Dee had no connections to benefactors. 30 To keep some of the costs down for the restoration and transformation of the 31 warehouse to a theater venue, I opted to do some of the work myself with the help of
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1 friends in the arts community. Some of those friends were skilled at construction, having 2 designed sets and understanding carpentry and the like. We didn’t undertake any of the 3 heavy construction jobs, or the skilled mechanical, electrical, or plumbing work. We left 4 those tasks to the experts, as long as it was consistent with my design for the theater. 5 Also, to keep costs at a minimum, I doubled up on employees’ duties requiring each to 6 multi-task, at least until we got our foot off the ground. 7 I wanted the design of the theater to utilize principles of Feng Shui. Feng Shui 8 uses the five elements of wood, fire, earth, metal and water to create balance and 9 harmony in your surroundings for positive energy. I am convinced that some crucial 10 Feng Shui of theater interiors has been violated in other venues. In some theaters, the 11 energy evaporates into the corners of the space. A play succeeds on stage when it 12 embraces stage-filling visual elements or involves deliberately larger-than-life characters. 13 Creative writing that involves a study of characters, particularly historical figures, needs 14 that sort of space to thrive. Exhibit 1 is a true and accurate depiction of the layout of the 15 theater, although it is not to scale. 16 Dee thought most of my ideas for the theater design were not practical, or created 17 other problems. That, obviously, was less important to me. However, I would never 18 sacrifice, merely for the sake of design, the safety of the theatergoers or the employees, 19 who are like family to me. I know I would never have told Dee, or anyone, that I did not 20 care about safety. In any event, the inspector for the Fire Marshal concluded that we 21 were in compliance with all fire codes and that the building was safe for the public. 22 I thought Dee and I would make a great partnership, as Dee is a research person, 23 with an interest in the theater, and could lend support for the play development with 24 detailed, historical accounts of the events. I, on the other hand, prefer to use my talents 25 writing, not researching. Later, I learned we are like oil and water. My free-spirit and 26 creativity clashed with Dee’s penchant for meticulous details . . . ad nauseam. Dee is a 27 stickler for facts with supporting references or documentation. That characteristic is 28 invaluable to lend credibility for the historical accuracy of my plays, but it didn’t stop 29 there. Dee’s incessant need for details carried over to the minutiae - details about the 30 theater’s finances, compliance with ordinances, rules and regulations, and on and on. It 31 was exhausting. I had written, directed, and produced many shows in New York City,
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1 and never needed to answer to anyone as much as Dee. I tried to convince Dee to just 2 chill. My mantra, which I’ve borrowed from George Bernard Shaw, is “You see things, 3 and you say, ‘Why?’ But I dream things that never were and I say why not?” 4 Dee continued to worry about the layout of the building and our finances. It had 5 been almost a year since we had purchased the buildings, and we were behind schedule 6 and out of money. Dee decided to abandon ship around December 20 th . We mutually 7 agreed to part ways. Given our initial investments, Dee kept the smaller building for the 8 coffee house and dessert shop, and I (or rather the Company) kept the theater, as well as 9 the rights to the play that I had written with the use of Dee’s research. On behalf of 10 Vintage Theater Productions, I deeded the coffee shop to Dee, and Dee relinquished 11 his/her membership interest in the Company. 12 Finally, the construction was complete and the play written. Vintage’s first 13 production was “The Wasp.” The Marmon Wasp won the first Indianapolis 500 race in 14 1911. Marmon Motor Car Company was an Indianapolis-based automobile manufacturer 15 that produced cars from 1902-1933. Ray Harroun, an Indiana native and engineer with 16 Marmon, was the driver of the winning car. The “Marmon Wasp” earned the nickname 17 for its yellow and black paint scheme and its sharp pointed wasp-like tail, which reduced 18 air drag. 19 In early February, 2011, I began advertising “ The Wasp, ” for its debut 20 performance on Friday, April 1 st and continuing every weekend thereafter through the 21 end of June. We had a sold-out crowd for all of April and May on every weekend 22 (Friday, Saturday, and Sunday evening shows with matinees on Saturday and Sunday). I 23 think the success of the show is attributable to several factors. First, my name was shown 24 on all of the marketing materials as the author of the show. I am, after all, very well- 25 known. Second, the show capitalized on the 100 th Anniversary of the inaugural race of 26 the Indy 500, and race-enthusiasts were geared up for pre-race activities. Third, we 27 previewed the show a week earlier for the Company’s investors, friends, family, and 28 theater critics, and the show received rave reviews. Regional theaters were already 29 contacting me about picking up the show, and there was speculation that the show would 30 attract interest for Off-Broadway theaters.
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1 Dee was upset that I did not give him/her credit for co-authorship. Late in the 2 evening on February 19 th , Dee threw a brick through the window of the Theater’s Box 3 Office. When I confronted Dee, he/she started ranting and raving about being a co-author 4 and not getting any credit. He/she was really angry and shouted “You’ll pay for this.” I 5 assumed at the time that he/she was referring to the window that had just been broken. 6 But after the explosion, I wondered if Dee was meaning something more nefarious. 7 I have no qualms about the absence of credit to Dee for co-authorship of “ The 8 Wasp.” I was the creative inspiration for the play. Any contention that Dee co-authored 9 the play with me is absurd. Dee merely supplied the historical references and 10 background information. It wasn’t even Dee’s idea to write about the Wasp or even the 11 Indy 500. I directed Dee to research the Indy 500 race, which is known throughout the 12 world as “The Greatest Spectacle in Racing.” I also knew that 2011 was the 100 th 13 Anniversary of the Inaugural race, and even the United States Postal Office had 14 celebrated the anniversary with its depiction of the Wasp on its Commemorative Stamp 15 Series. 16 When developing the show, I wanted something to make the production really 17 “pop.” Realism would transform the audience’s experience to a feeling of stepping back 18 in time. So, I made arrangements to lease a full-size, one-of-a-kind replica of the 19 Marmon Wasp from Classics Automobiles Leasing Limited, located in Detroit, 20 Michigan. Amazingly, it was fully operational. Many of these classic automobiles are 21 leased for parades or similar one-day events. Because Vintage was leasing the Wasp for 22 several months, I was able to negotiate favorable lease terms of $1480 a month, 23 compared to the $495 weekend rate. A true and accurate copy of the lease for the Wasp 24 replica is attached as Exhibit 2. The lease is a record made at the time that the lease was 25 entered of which I have personal knowledge, and making the lease is a regular practice of 26 the theater business, and the lease was kept in the course of the regular business activity 27 of Vintage. 28 Classics Automobiles Leasing Ltd. (CALL) delivered the Wasp on March 11, 29 2011. Exhibit 3 is a true and accurate copy of a photograph of the replica Wasp that the 30 Theater Company leased. When it was delivered, CALL gave stage crew member, Joe/Jo
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1 Kerr some basic instructions of how to operate the automobile. The Wasp was placed in 2 the theater’s prop area. 3 It was my intention to bring to the stage productions based upon historical events 4 or persons. So, I created an atmosphere where the theatergoers felt like they were taking 5 a step back in time. The ticket takers and concession workers dressed in period clothing. 6 We offered boxed popcorn, pre-popped and warmed, just like they did in times past. To 7 highlight the Indy race theme, we advertised that a theatergoer could buy popcorn for 8 twenty-five cents if they presented the commemorative Indiana State quarter, featuring 9 the Indy 500 racecar. I anticipated we would have a “race” to the concession stand for 10 that price! I told my employees to plan on making lots of popcorn. 11 I realized that in my Feng Shui design of the theater and effort to control costs, I 12 had failed to provide adequate electrical outlets for the popcorn popper and warmer in our 13 storage area. So propane fueled equipment was my only option, unless I did a complete 14 overhaul of the electrical aspects of the building. Using propane also fit with my desire 15 to maintain a green environment, in addition to cost cutting. I ordered the popcorn maker 16 and the warmer on March 7, 2011 from an online company, Commercial Appliance 17 Retailers E-shop (CARE), and the equipment was delivered by UPS on March 11 th . The 18 popcorn maker, made by Poppity Pop, had a one-piece stainless steel kettle design with a 19 direct inject oil feed to eliminate messy oil spills. It also included a gas safety pilot. Its 20 dimensions were 20”D x 30”W x 40” H. Exhibit 4 is a true and accurate copy of an 21 insert/flyer that was included with the popcorn maker. Exhibit 5 is a true and accurate 22 copy of excerpts from the User Guide of the Poppity Pop popcorn maker. The popcorn 23 warmer, made by Sure-Fire, was a used unit, in practically brand-new condition. The 24 warmer did not have any safety warnings with it – probably because it was a used unit. 25 The popcorn maker and warmer were easy enough to install, so I had one of the 26 stage hands install it. The popcorn maker and warmer were set up in a small storage 27 room next to the prop room. The storage room had a sink available to wash small 28 utensils. When we made the original plans for the theater, we did not anticipate the need 29 to have the storage room ventilated. We cut costs by eliminating heating and air 30 conditioning in the storage room. Unfortunately, March 31 st was bitter cold, and the 31 sink’s pipes froze overnight. So, the next day, I purchased a small, portable electric room
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1 heater for the storage room. Joe/Jo plugged it in the sole outlet in the room and notched 2 up the heat some, even though April 1 st was a little warmer. I do not recall seeing any 3 safety instructions with the portable heater when it was purchased. I have examined my 4 equipment files for the Theater Company and I do not have any user guide or warning 5 information for that portable heater. I would expect there would be warnings with a 6 portable heater. I don’t have training in mechanics or engineering, but those safety 7 warnings are pretty intuitive or common knowledge – don’t operate this appliance in a 8 tub, don’t use the appliance if the cord is frayed, and so forth. 9 On March 14 th, I arranged to purchase propane from Pro Propane Products to use 10 as fuel for the theater’s popcorn popper and warmer. It took forever for Pro Propane to 11 deliver the propane. I should have known right then that the Company’s operations were 12 mismanaged. Finally, on March 24 th , Pro Propane delivered to Vintage the four filled 13 propane tanks I had ordered. Exhibit 6 is a true and accurate copy of Pro’s invoice for 14 the propane purchased by Vintage. I was at the Theater when Pro delivered the propane 15 tanks. Pro’s service technician -- the name was Rusty or Dusty or something like that -- 16 asked me about the intended use of the propane tanks. When I explained it was for the 17 popcorn maker and warmer, Rusty brought the four tanks to the room where the 18 equipment and the oil for the popcorn were located. One of the propane tanks was to be 19 used to fuel the popcorn popper, and another propane tank was to be used as fuel for the 20 popcorn warmer. The two extra tanks were left in the room to be used when the other 21 tanks were emptied. 22 Pro did not advise me that the location of the propane tanks in the storage area 23 was improper. Pro also did not provide any written or oral instructions to me for the 24 storage or use of the propane tanks. I recall Rusty was more interested in the Feng Shui 25 design of the building than anything to do with installing the propane tanks. I gave Rusty 26 a tour. 27 The week of March 28 th , Jo/Joe Kerr tested the popcorn maker and warmer at one 28 of our dress rehearsals. I asked Joe/Jo if it worked okay because I wanted to make sure 29 that we had popcorn for the show, and Joe/Jo said he/she had no problems with the 30 equipment.
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1 On Friday, April 1, 2011, at approximately 6:30 p.m., a few of the stage crew 2 members and I were busily making the last preparations for opening night of “The 3 Wasp.” The rest of the Theater Company had not yet arrived. I checked the box office to 4 make sure that the necessary cash and credit card machines were in place. The show was 5 scheduled for 8:00 p.m., and the doors for the theater’s patrons were to open at 7:15 p.m. 6 Around 6:45 pm, I left the building briefly to move my car from the front to the back of 7 the building. 8 As I got in my car and drove to the next cross-street, I heard a loud boom, 9 followed by another loud boom. I then saw this enormous orange flame shooting up to 10 the sky from the theater. I immediately stopped my car and ran back to the theater. 11 Fortunately, neither the theater patrons nor the majority of the theater company had 12 arrived. I rushed in and saw that the flame was concentrated near the back rooms, where 13 the popcorn machine and warmer were located. It was like walking into a nightmare. 14 Joe/Jo Kerr lay on his/her back. Joe/Jo was breathing, but was unconscious. Specks of 15 blood marred his/her skin. Joe/Jo’s shirt sleeve was on fire. I rolled him/her over on the 16 theater carpet to put the fire out. Seconds later, the star of “ The Wasp,” Lucas, arrived 17 and we pulled Joe/Jo to safety outside the building. 18 I stood outside watching the flames lap at the building. This was the worst thing I 19 had ever seen. The rubble reminded me of a combat zone that you see in war movies. 20 The lights from the marquee still cast the bluish light that previously was a source of 21 excitement and energy for the new show. Now it dimly lit the devastation. A bright 22 yellow piece of metal, which I recognized to be part of the Wasp, lay mangled on the 23 cold, concrete sidewalk. Chunks of brick and concrete were scattered everywhere. 24 Crowds jammed the streets to witness the wreckage. I noticed the explosion had also 25 knocked out the wall of Melody. Dee was standing outside watching too, and we 26 consoled each other. I don’t recall any specifics of our conversation. Other than the 27 explosion itself, the whole evening is a blur to me. 28 Fire trucks and an ambulance screamed with their sirens to the scene. The Fire 29 Department arrived at the theater within minutes and the fire was extinguished along with 30 my hopes and excitement for opening night. I signed a consent form for examination of 31 the building. I wanted to know just as much as the Fire Department why we had the
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1 explosion. I spoke with Investigator Ent answering general questions about the building 2 and equipment located in the building. I can’t say I was of much help to Investigator Ent 3 because I didn’t see it happen. I later learned from the Investigator Ent that the propane 4 tank used for the popcorn warmer exploded and caused the three other propane tanks 5 stored in the same area to explode. I had no idea that there was anything wrong with the 6 propane tanks. If I would have known a tank was faulty, I would not have accepted it 7 upon delivery. 8 I am very angry with Pro Propane Products. Pro Propane would have known the 9 valve on the tank was faulty and leaking gas if Pro had properly inspected it before 10 delivering it to my business. Pro also should never have set up the tanks anywhere near 11 an unventilated area. I’ve since looked on Angie’s List, and I know Pro has a reputation 12 for shoddy work. 13 The massive explosion, and the fire, caused significant damage to the Vintage 14 building, damage to Melody (the adjacent property), and obliterated the Wasp replica, 15 props, costumes, and other property owned by Vintage. Not only was there damage due 16 to the explosion and fire, but there was also smoke damage and water damage when the 17 firefighters extinguished the flames. 18 Vintage Theater Productions had to pay Classics Automobiles $250,000 for the 19 Wasp under the damage clause of the lease. Vintage has also paid another $311,032 to 20 repair the theater and the Melody building, and to replace the props, costumes, and 21 equipment consumed or damaged by the explosion, fire, smoke and water. Finally, I also 22 lost $422,500 of income from “The Wasp ” for three months while the construction was 23 ongoing to repair the damages caused by the explosion, fire, smoke, and water. The lost 24 income is calculated based upon 250 seats at $30 per ticket for the three evening shows 25 and $20 a ticket for the two matinees for the thirteen weeks that the theater was shut 26 down. Vintage Theater refunded all of our patrons’ money for the shows. Finally, I truly 27 believe, that had the explosion not occurred, the Wasp would be performing right now on 28 Broadway. An opportunity like that is worth millions. Coinciding the running of the 29 show with the 100 th Anniversary of the Indy 500 was a once in a lifetime opportunity. In 30 theater, timing is everything.
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1 I affirm under penalty of perjury that the foregoing Statement is true and accurate 2 to the best of my belief and knowledge. 3 Dated: October 5, 2012. /s/ Mel Lowe . 4
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1 STATEMENT OF JOE/JO KERR
2 My name is Joe/Jo Kerr. I am 20 years old. I was born on April 1, 1992 and 3 raised in one of the poorest areas of the Appalachia. My pa worked as a coal-miner. I’ve 4 understood from the time I was a child that coal miners are the heart and soul of West 5 Virginia. And just as long, I’ve known families heartbroken by the loss of loved ones in 6 mining accidents. The hard work of coal miners is the work that built our country. Coal 7 mining, even with modern machinery, is backbreaking work. I grew up around rugged 8 and tough people who didn’t shy away from a hard day’s work. Sometimes Appalachian 9 people are portrayed in books or movies as backwards hill folk. Those aren’t the traits 10 that were part of my upbringing. We’re proud people, who are family-oriented and 11 patriotic. Appalachians value independence but are less confrontational than other folks 12 I’ve come across. We are kind, friendly and outgoing and enjoy good humor and 13 storytelling.
14 My pa died in a mining accident when I was 14. So, my ma moved the family to 15 Indianapolis to be closer to her sister. I live at 1911 E. Fall Creek Parkway in 16 Indianapolis. I miss my friends back home, but I’ve found new friends here, ‘specially 17 my buddies at work. I work at Vintage Theater Productions as a member of the stage 18 crew. It’s been a great job. I’m fixin’ to get a promotion and raise after my next 19 evaluation in June. My boss knows they’ve been workin’ me like a rented mule. They 20 know I’m a hard-worker with a great attitude. 21 I was never really good at school. But, I did graduate from high school in 2010. 22 In high school, I enjoyed helpin’ with the school plays behind the scenes, like lighting, 23 stage crew, and stage management. One of my teachers in high school, Mr. Burkett, got 24 me interested in helpin’ out in the theater productions as a way of stayin’ out of trouble. 25 Being involved in theater productions gave me purpose. There’s something satisfying 26 about taking pride in your work, doing it well, and then that work shapes into something 27 awesome, like a play or musical. 28 I admit I’ve been in some trouble in the past. Every dog ought to have some 29 fleas. I reckon some of my actin’ out was because I was hurtin’ over my pa’s death. I 30 also was tryin’ to fit in as the new kid in school. When you’re funny, you can make 31 friends easier. I’ve always had a lick of tomfoolery in me. It’s not like I’m a derelict.
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1 I’m just pullin’ a few pranks for fun. I’m a-learnin’ that I need to rein it in while havin’ 2 fun. I jes’ like to take people off their guard. Seeing the surprise in someone’s face when 3 they’ve been duped is funny - - at least, I think so. It’s all meant to be harmless. 4 Some of my pranks in high school didn’t go over so well. Once I was suspended 5 from school when me and my school buddies stuck 12,000 Post-it notes to the walls and 6 windows of the school. The suspension later was reversed. Like I said, most of my 7 pranks are harmless – putting hot sauce in a friend’s can of soda, letting off a fire cracker 8 to give someone a startle, or 3 am hang-ups. 9 One prank got me in trouble with the law. One April Fool’s Day, when I was 15, 10 I made a call to one of my friends that my house was on fire and I was trapped in the 11 bathroom. I hung up the phone like it had been disconnected due to the fire. And before 12 I got the chance to call back and say “April Fool’s,” my friend had called 9-1-1 and 13 reported the fire. I was charged as an accessory to false reporting. My friend was never 14 charged with false reporting or anything. I pled guilty, but because I was a juvenile, and 15 it was a minor deal, I got off pretty light – good behavior for 6 months and 40 hours of 16 community service. 17 That’s when my teacher, Mr. Burkett, steered me in a more positive direction to 18 occupy my time. Mr. Burkett set me up with a local community theater to help as a stage 19 crew person to fulfill my community service hours. Then Mr. Burkett suggested that I 20 also help out with the school plays. I liked it. The people in the theater are great. We’re 21 all friends pitchin’ in, workin’ for the same goal as a team. I never had a team experience 22 before; I’m not very athletic. 23 I wish I could say that workin’ on the school’s plays and helpin’ out at the local 24 community theater put an end to my trouble with the law, but once a prankster, always a 25 prankster, right? Unfortunately, sometimes I just don’t think things through as much as I 26 should. After my high school graduation, it was summer and I was bored. I thought it 27 would be funny to take the flag of one of our school rivals from their baseball field. At 28 the time, I didn’t think about it as theft. I just thought the shocked faces of the fans from 29 the other school would be a hoot! I actually didn’t go through with it. I was jawin’ with 30 friends about it and someone must’ve decided to go through with it. Everyone assumed I 31 did it ‘cuz I had been jawin’ about it. Ma and I couldn’t pay a lawyer, and the prosecutor
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1 didn’t seemed convinced that I was completely innocent. I also didn’t want anyone else 2 to get in trouble for my idea. I am loyal to my friends, and because the idea was mine 3 originally, I was willin’ to take this one for the team. So, when the prosecutor offered me 4 a plea deal for a conversion charge, I pled nolo contendere. I learnt that was some big 5 fancy Latin word that means you’re not admitting it, but you’ll pay the piper. I paid a 6 fine of $200 and $85 to replace the flag for the other school. I also had to be on good 7 behavior for the next year. 8 My summer boredom soon ended when I was hired at Vintage Theater 9 Productions as a stage crew member. It was exciting to be a part of a new theater. I was 10 like a starvin’ dog in a meat house. Mel Lowe is the owner. Mel is energetic, creative, 11 soulful, and inspiring. We immediately clicked. The pay wasn’t that great, minimum 12 wage, and I didn’t always have a 40-hour week, but I thought it was a starting point and I 13 could work my way up at Vintage. 14 The Theater’s finances were tight; Mel was open about the money problems of 15 the business. At one time, Mel told me that the investors in the Theater were threatenin’ 16 to pull the plug if we didn’t get the theater ready for a production soon. I did everything I 17 could to help Vintage (and Mel) succeed. So, I hustled when I worked. I did anything 18 and everything that was asked of me. 19 I talked to Dee Part, Mel’s former business partner, too, but not much. Dee 20 mostly stayed glued to a computer or books researching for the play. Dee was always 21 complaining about safety. But then out of the other side of Dee’s mouth he’d/she’d 22 complain about spendin’ more money. Dee is so contrary that if you throwed him/her in a 23 river he’d/she’d float upstream. 24 I don’t think Dee liked me so much. Dee was critical of my lack of experience 25 and knowledge. But Dee underestimated me. Where Dee is book smart, I am street 26 smart. I learn through hands’ on experiences and I figure things out through trial and 27 error. Sometimes, that’s the best way for learnin’. 28 ‘Cuz money was tighter than bark on a tree, I had to double up on my duties at the 29 Theater. I was stage crew, security, and I also helped the concession workers by making 30 the popcorn and keeping it warm with our popcorn warmer. I didn’t mind the extra jobs 31 ‘cuz it was good training and I was able to handle it all. But, I knew the money would
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1 start comin’ in. The idea of the Marmon Wasp play at the same time as the 100 th 2 Anniversary of the Indy 500 and the release of the commemorative stamp was a hum- 3 dinger! 4 Stage crew members work behind the scenes for stage productions to make sure 5 scene changes and other things needed for the show are done correctly and at the right 6 times. My job at Vintage Theater included workin’ different positions backstage, 7 includin’ helpin’ with props, like the Marmon Wasp, or the fly rail (items that are raised 8 and lowered on a rope system, known as a "fly"). I also was responsible for general 9 labor such as sweepin’ and moppin’ the stage. Sometimes, I also helped out with lighting 10 and sound equipment. 11 For my security job at Vintage Theater, my responsibilities include making sure 12 no strangers come in the theater that are not supposed to be there. I’m also responsible 13 for makin’ sure all deliveries were approved and delivered to the appropriate place in the 14 theater. I keep an eye on everyone comin’ in or out of the theater. 15 I also on duty on the days when the popcorn make, warmer, portable heater, and 16 Wasp were delivered to the Theater. When the Wasp was delivered by the Leasing 17 Company, I done told ‘em to put it in the prop room, which was next to the storage room. 18 I did not keep a log of deliveries, and I don’t recall the dates of the deliveries. As I recall, 19 those items were delivered by mid-March, so that there was plenty of time to know how 20 to work ‘em and have ‘em ready to go for the show’s opening on April 1 st . 21 I specifically remember the propane tanks for the popcorn maker and warmer 22 were delivered later. It sticks in my mind because Mel was madder than a wet hen that 23 the propane company was so slow to deliver the tanks even though the tanks had been 24 ordered weeks in advance. Mel told me to call Pro Propane Products to light a fire under 25 them to get the delivery to us. I demanded to talk to Pro’s owner. He/She said that their 26 inventory was low, and he/she didn’t know if they had any left. Well, it don’t never do 27 nobody no good to beat about the bush, so I just told them flat out, “My cow died last 28 night so I don’t need your bull.” I told him/her that the show was goin’ to be opening 29 soon. Then I said, “You do whatever it takes to make this right, and git those tanks 30 delivered lickety-split!” The tanks were delivered soon after I done told them off, and we 31 had ‘em the day before we had all them important people come preview the show.
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1 When the popcorn maker and warmer were delivered, I had the delivery person 2 bring the equipment to the storage room. The set-up of the popcorn maker wasn’t 3 difficult. Any third grader could do it. The popcorn maker did have a User Guide. 4 (Exhibit 5) My practice, the way I’ve always done it, is to glance at the instructions to 5 make sure I wasn’t missin’ anything. I glance over the warnings. The warnings are 6 usually all the same, so it’s not like you pay attention to them anyway. I gave the User 7 Guide and other paper work that came with the popcorn maker, like the warranty card 8 and stuff, to Mel. 9 The popcorn warmer was even easier to set up. All I had to do was connect the 10 warmer to the propane tank. The warmer wasn’t new, but it was good as new. There 11 wasn’t any guide with the warmer or any warning signs. I doubt that I would’ve looked 12 at ‘em even if the warmer came with a guide or warnings. It was a simple, basic set-up. 13 If you’ve ever done hooked up a propane tank to a gas grill, this was even easier. 14 The portable heater also was an easy set-up – just plug it in. It had a knob to set 15 the temperature and a separate knob for the fan speed. I notched up the heat on it around 16 1 pm on April 1 st to unfreeze the pipes ‘cuz the storage room had no heat. I don’t 17 remember specifically reviewing the User Guide or any warnings for the portable heater. 18 Like I said though, my routine is to glance at the warnings and the guide to see if there’s 19 an unusual instruction or warning. Then, I would normally turn the papers over to Mel. 20 When the Fire Inspector came to Vintage Theater the propane tanks hadn’t come 21 yet. But, the popcorn maker and warmer were in the room where they was supposed to 22 be. I don’t remember if they was still in the box when the inspector was checking it out. 23 The Wasp also was being delivered and stored in the prop room when the inspector was 24 lookin’ around. We didn’t buy the portable heater until days after he left ‘cuz we didn’t 25 know’d that we’d need it. The look on the Fire Inspector’s face seemed like he had no 26 concerns. He nodded with approval at times, and said that we had complied with the 27 applicable safety codes. When the Fire Inspector was finished, he didn’t advise of any 28 changes that needed to be made, or codes that had been broke. In fact, when the Fire 29 Inspector left, he nodded approvingly and gave me a thumbs’ up. ‘Cuz the inspection 30 was all good, there was no need to make any changes to the building or where things 31 were located.
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1 I was not scheduled for work the day the propane tanks were delivered. I had 2 been fightin’ a nasty head cold with a lot of stuffiness and congestion, so I took a couple 3 of days off. I wanted to be at my best for opening night, and I didn’t want to miss it. I 4 was feeling a little bit better when I went back to work on March 28 th . Mel asked me to 5 test out the popcorn maker and warmer to make sure that everything was workin’ right. I 6 noticed two propane tanks. I hooked up one tank to the popcorn maker and hooked up 7 another tank to the warmer. There was no instruction for the propane tanks, and I did not 8 see any warnings, other than the flammable symbol on the tanks. I turned on both 9 propane tanks by opening the valve on each tank. The propane valve hooked up to the 10 popcorn warmer was much more difficult to operate. I had to use all of my might to get it 11 to move. When I looked closer at the valve, I noticed it was rusty. I didn’t question that 12 the rusty valve would cause a leak. I didn’t smell any gas leak. The popcorn maker and 13 warmer worked fine though, and that’s what I reported to Mel. Everyone in the theater 14 company enjoyed the popcorn snack during the dress rehearsal. 15 On Friday, April 1st , I returned to the theater at 6 pm to check up on whether the 16 portable heater had unfrozen the pipes and to start getting the props ready for the show. I 17 also had security that night. Security was important because Friday night’s show was 18 April Fool’s Day and Mel expected some pranks. I didn’t see anyone going into the 19 room where the popcorn maker and warmer were located. The back door is often left 20 unlocked, and sometimes even open, during the performances and rehearsals for the stage 21 crew and performers to go outside to get a fresh breath of air, or not – for the smokers. 22 But, I didn’t see anyone come through the back door of the building that night. I admit 23 that I wasn’t guardin’ the doors constantly because I had to be at other places at the same 24 time. Between gettin’ props and scenery changes ready and pulling security detail, I also 25 was makin’ the popcorn to help the concession workers. 26 We were expectin’ big sales for popcorn because it had been advertised that the 27 cost was only twenty-five cents if you used the Indiana State Quarter to buy it. So, at 28 6:30 p.m., I began making the popcorn. This time the valve to the propane tank for the 29 popcorn warmer was so tight that I couldn’t operate it by hand. I used a wrench to knock 30 it a bit to get the valve into the “on” position. I then turned the gas safety valves for the 31 popcorn maker and warmer to the “pilot” position. I didn’t smell gas. I lit the pilots for
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1 the popcorn maker and warmer with a match, and then switched the valves to the “on” 2 position. Once the popcorn maker was poppin’ the popcorn, I left the room. Ten minutes 3 later, I returned to check on the popcorn and to begin storing it in the warmer. As I 4 opened the door to the room, it struck me that there were 4 propane tanks in that room, 5 which I had not noticed before. As I walked to the popcorn maker, I heard a hissing 6 sound. I tried to shut off the valve in desperation, but it was stuck and, I knew she was 7 goin’ to blow because the hissing sound got louder, like a siren. I ran out of the room, 8 closed the door behind and yelled for everyone to get out. Fortunately, nobody was 9 around. It was like a rocket went off. It was shooting fire as high as the trees and 10 sounded like a jet. I remember hearing a second large boom and I went flying in the air. 11 The next thing I remember, I was lying in a hospital bed. I had broken a couple of 12 ribs and my right wrist. I also had cuts on my arms from flying shards of metal and glass. 13 I had some third degree burns. 14 I was unconscious for two days and so I wasn’t able to talk to the fire investigator 15 until Sunday. Finally, I was able to tell to the fire investigator what had happened. I’d 16 near worried myself to death about what to say. I told Investigator Ent that I turned the 17 propane tanks’ valves to the “on” position around 6:30 and that when I returned at 6:40 18 pm there was a hissing sound, and it exploded. 19 I didn’t mention to the fire investigator that the valve was rusty because I thought 20 somehow Mel might get in trouble and they would shut down the theater. I sort of 21 mistrusted investigators because of that incident with the flag that I got in trouble for 22 someone else’s actions. But, later, Mel came to visit me in the hospital and encouraged 23 me to tell everything that I knew about what happened. Mel contacted the investigator 24 and told him/her that I had recalled some additional information. When Investigator Ent 25 returned, I mentioned that the valve on the propane tank was rusty. 26 I wasn’t involved in any pranks on the night of the explosion. But, it’s all about 27 the ‘possums now. People have the wrong idea bout ‘possums, just like me. The 28 ‘possum is blamed for mischief and messes. The ‘possum actually helps rid a garden of 29 snails and grubs. Just like me – I’m actually a hero here. If it wasn’t for my quick 30 thinkin’, there would be a whole lot more damage and people hurt.
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1 I blame Pro Propane Products completely for the explosion and fire that caused 2 my injuries and damaged Vintage Theater. I filed my own lawsuit against Pro Propane 3 Products for causing my injuries due to its faulty tanks. That lawsuit is ongoing. That 4 don’t make a lick of difference to what I’ve been a-tellin’ in this statement. As my pa 5 always said, “the truth will stand when the world’s on fire.” 6 I affirm under penalty of perjury that the foregoing Statement is true and accurate 7 to the best of my belief and knowledge. 8 Dated: October 5, 2012. /s/ Joe/Jo Kerr . 9
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1 STATEMENT OF RAY/RAE D. ENT 2 3 My name is Ray/Rae D. Ent, and I reside at 5855 Waterman Avenue, 4 Indianapolis, Indiana. I am a Fire Investigator with the Indianapolis Fire Investigation 5 Section of the Indianapolis Fire Department (IFD). I have held the position of fire 6 investigator for the past six years. Prior to my position as fire investigator, I was a 7 firefighter with the IFD for five years. I was motivated to become a firefighter after 8 September 11, 2001. I was moved by the dedication and heroism of the firefighters. 9 The Indianapolis Fire Department is the principal fire suppression, prevention, 10 and rescue agency of Indianapolis, Indiana. There are currently 45 Fire Stations located 11 throughout the city of Indianapolis, organized into 7 Battalions (2, 4, 6, 11, 12, 13, and 12 14). I am assigned to Battalion 13, Station 7, located at 555 North New Jersey Street, in 13 downtown Indianapolis. The IFD Headquarters are located in this building also. 14 I am a member of the National Association of Fire Investigators, Indiana 15 Firefighters Association, Indianapolis Metropolitan Professional Firefighters Local 416, 16 and the Professional Firefighters Union of Indiana. I am also a Certified Fire and 17 Explosion Investigator through the National Association of Fire Investigators (NAFI). 18 The certification extends for five years. I was first certified in 2006, and I was recertified 19 in October, 2011. I have received training through the Indiana Firefighter Training 20 System, a division of the Indiana Department of Homeland Security in the following 21 classes: fire science, fire chemistry, thermodynamics, thermometry, fire dynamics, 22 explosion dynamics, fire investigation, hazardous materials, and failure analysis. I also 23 hold a Bachelor of Science degree in Forensic and Investigative Sciences from Purdue 24 University. 25 I work on approximately 125 fire investigations per year. Over a six year period, 26 I have investigated over 700 cases. I have investigated 14 propane tank explosions during 27 my career as a fire investigator, but none of the magnitude of explosion as the Vintage 28 Theater incident. However, I have gone through a training exercise with a mock 29 explosion of a propane tank of similar size and impact to the Vintage Theater explosion. 30 The Indianapolis Fire Investigation Section is recognized as one of the premier 31 Fire Investigation Sections in the United States. The Fire Investigation Section has seven
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1 teams consisting of a police detective and fire investigator. Each individual is cross- 2 trained in the other’s discipline. The police detective is fully trained in origin and cause 3 of fire determination and the fire investigator is trained in police detective skills, such as 4 interview techniques. 5 Fire investigation is not limited to only uncover intentionally set fires. Set fires 6 are a relatively low number when compared to cooking fires or careless fires. Only 7 seventeen percent (17%) of all fires in Indianapolis are initially listed as suspicious. 8 Eleven percent (11%) of all fires in Indianapolis are caused by arson. Once a fire has 9 been determined to be of suspicious origin, the fire investigator inspects the scene and 10 attempts to make a determination about the cause of the fire. A determination is then 11 made about whether the fire was intentionally set and whether it should be referred to the 12 prosecutor’s office. 13 My job is to handle the investigation after a fire or an explosion has occurred to 14 determine the cause. A separate division is responsible for enforcement of fire codes and 15 building inspections to avoid or minimize safety risks. The Fire and Life Safety Division, 16 headed by the Fire Marshal, is responsible for inspecting the hundreds of buildings in 17 Indianapolis to ensure that each structure complies with the fire codes that have been 18 established on the federal, state, and local level. The inspectors systematically inspect 19 each of the buildings in Indianapolis to ensure that the buildings meet fire codes and that 20 the public is safe when visiting the building. 21 On April 1, 2011, at 18:42 hours, Indianapolis Fire Department Station 7 22 responded to a report of a fire and explosion at a structure located in the 400 block of 23 Washington Street. At 19:45, I was called to investigate the scene of a fire and apparent 24 explosion at 454 E. Washington Street, Indianapolis, Indiana, which I later learned to be a 25 theater owned by Vintage Theater Productions. I had been called to the scene because 26 the fire and explosion were initially considered suspicious. 27 When I arrived, the fire was extinguished but was smoldering. In a fire or 28 explosion that has been flagged as suspicious, the fire investigator normally would be 29 assisted by a member of the Indianapolis Police Department. The police officer, trained 30 specifically in interview techniques, would be responsible for interviewing witnesses 31 crucial to the investigation of the origin and cause of the fire/explosion. In this instance, I
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1 did not have the aid of an investigator from the police department, so I had to conduct 2 interviews myself and rely upon interviews conducted by the firefighters on the scene, in 3 addition to examining the clues left behind in the debris. 4 Upon my arrival, I initially interviewed the firefighters on the scene for critical 5 information needed for my investigation, including information on the condition of the 6 structure, area of involvement of the fire, position of doors or windows that could 7 indicate forced entry and suspicious person(s) at the scene or leaving the scene. One of 8 the firefighters was approached by an onlooker who questioned if it was odd that the 9 owner of the building was seen driving down the street away from the building shortly 10 before the fire and explosion. Another bystander reportedly stated that he witnessed 11 some younger person throwing firecrackers in the alley and someone sneaking 12 suspiciously into the building through a back entrance within minutes of the explosion. 13 These witness statements were noted and made part of my report. 14 I learned that the owner of Vintage Theater Productions is Mel Lowe, who was 15 present at the scene. My interview with Lowe provided some additional background of 16 the activities in the building prior to the explosion and fire. Lowe reported that a stage 17 production was to open that evening and the theater company was expected to arrive at 18 19:00 and patrons were expected to arrive at 19:15. Lowe also reported that he/she 19 arrived at the building minutes prior to the fire/explosion and he/she was in the process of 20 parking his/her vehicle in the back of the building when the fire/explosion occurred. 21 Lowe stated that when he/she entered the building, he/she observed that the flames were 22 concentrated in the back of the theater in the location where four propane tanks had been 23 stored, and another area where a portable heater was operating. Lowe pulled an 24 unconscious employee, Joe/Jo Kerr, to safety, who had been in close proximity when the 25 explosion occurred. I obtained the written consent of Lowe for a fire and explosion scene 26 examination. Exhibit 7 is a true and accurate copy of the Consent. 27 I then conducted an examination of the scene. People mistakenly believe that a 28 fire destroys all the evidence. But, in fact, that's not the case. In this case, the fire 29 department arrived in time to stop the fire from completely incinerating everything. 30 Obviously, the more items and building structure that are preserved, the easier it is to 31 determine the cause of the fire and its origin.
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1 The first clues to the cause and origin of the fire or explosion usually come from 2 the firefighters on the scene. If the whole building is not yet engulfed in flames, they can 3 see the area where the flames are most intense. This is the location where the fire 4 probably started and has been burning the longest. The firefighters also note the color of 5 the flames, the color and amount of smoke, the rate at which the fire spreads, and even 6 the sounds the fire makes. 7 It had been reported that flames were shooting upward through the roof of the 8 building and there were several loud booming sounds reported. Fire crews entered the 9 structure and extinguished the fire which had extended heavily through the rear and east 10 wall of the structure. 11 After the fire was extinguished, I sifted through the ashes, looking for clues. 12 When I am examining the scene, I ask “What is (or was) this stuff-and does it belong at 13 the scene?" It is important to look for things that appear to be out of place. 14 The first indicator to assist me in determining the cause of the fire is observing the 15 “char pattern.” A hot fire burns quickly and moves very fast along its path, so there are 16 obvious lines of what is burned and not burned. I then trace the char pattern backwards, 17 like following footprints. In this case, I noted that the char pattern around the door frame 18 of the small room where the propane tanks were located was more heavily charred on the 19 inside, thus indicating the fire started in that room. 20 Second, I noted the V-shaped char pattern by the popcorn warmer. A fire burns 21 up and the gases tend to spread out as they rise, forming a “V.” The fire leaves a char V- 22 shaped pattern that literally points to the origin. Third, I observed that the fire had burned 23 a hole in the ceiling directly above the propane tank for the popcorn warmer. Because 24 fire burns upwards, there can be a "chimney effect." At the point at which the fire 25 ignites, the gases form a fireball, which continues straight up to burn a hole in the ceiling. 26 All evidence from the fire pointed to the direction of the propane tank connected to the 27 popcorn warmer as the origin of the fire. 28 The witness interviews also proved helpful in determining the cause of the fire 29 and explosion. Those who experience large burning LP gas fires describe flames that 30 shoot up high in the sky. Kerr’s statement that he/she heard a sound like a jet is typical of
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1 a propane tank explosion. The relief valves of a burning tank will create ear-piercing 2 shrieks of near sonic velocity. 3 The next task is to determine exactly how the fire started. A fire with several 4 distinct, independent origin points would arouse suspicion that the cause was not purely 5 accidental. If there are indications that a fire was assisted, I will clear away all the ash 6 and charred remains to expose the flooring. Fire rarely burns down to the floor beneath 7 the fire unless an accelerant has been spilled or poured on the floor. In this case, there 8 did not appear to be any evidence of an accelerant poured or spilled. 9 An explosion is the effect from a sudden violent expansion of gases, including 10 loud noise and shock waves, collapsed walls and shattered windows, or balls of flame. 11 There are several phases of an explosion: the original shock wave blast of the explosion; 12 the flying shrapnel of the exploding container; and, depending on the pressures of the 13 blast, there is the structural damage from the blast, such as parts of walls, roof, floors, 14 doors, windows and ceilings. An explosion’s generated heat may cause secondary fires 15 and secondary structural collapse. In this instance, I noted that structural damages from 16 the blast, and secondary fires and shrapnel from objects near the site of the explosion. 17 Explosions are classified into three broad categories: physical explosion, chemical 18 explosion, and physical/chemical explosion. A water heater boiler rupture is an example 19 of a physical explosion, because when the container ruptures, there is no explosion of the 20 water. A smoke explosion (backdraft) is an example of a chemical explosion. The smoke 21 and gas react with oxygen, but there is no physical rupture of a container. A propane 22 cylinder explosion or BLEVE (boiling liquid expanding vapor explosion) is a 23 physical/chemical explosion. There is a physical explosion - a rupture of the cylinder, 24 then an instant chemical explosion of the flammable propane. 25 Propane is an extremely flammable gas that must be handled with absolute care. 26 The possibility of a propane tank explosion (BLEVE) is extremely remote. However, 27 even when contained in cylinders, propane gas can build up pressure and explode. A 28 BLEVE is a type of pressure-release explosion that occurs when liquefied gases are 29 exposed to the atmosphere, causing rapid vaporization. A BLEVE can occur when a tank 30 shell is corroded or gouged or when the container is weakened and cracks due to extreme 31 heat, such as a fire. The explosion occurs when the pressure in the tank exceeds the
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1 amount that the safety relief valve can safely vent excess pressure into the outside 2 atmosphere. Relief valves are designed to vent tank pressure once the pressure inside the 3 propane tank reaches a certain level. The typical screaming noise that is described is the 4 pressure relief valve venting the excess pressure. The vapor mixes with air and the flame 5 from the ignition will result in the characteristic fireball that occurs when the fire ignites 6 the vapor. 7 I determined that in this explosion, the popcorn warmer pilot light was the likely 8 ignition source for the explosion of the propane. I inspected the area more closely. There 9 were four propane cylinders located in the area. All four had exploded, and were mangled 10 and charred. However, the telltale signs were still there. The char and V patterns showed 11 that three of the propane tanks exploded from the heat from the fire of the first explosion 12 of the propane tank connected to the popcorn warmer. 13 I then looked to the cause of the explosion to the propane tank for the popcorn 14 warmer. The possibilities included gas valve failure or the combustible tank being placed 15 too close to a heat source. Given the evidence I had already examined, it did not appear 16 that the first propane tank (i.e. the one connected to the popcorn warmer) exploded from 17 being overheated; otherwise the other three tanks would have shown similar char and V 18 patterns. Thus my investigation steered toward a gas leak, whether accidental, negligent, 19 or intentional. 20 Propane cylinders incorporate components such as valves, connectors, and other 21 parts to keep them safe to use with appliances. As part of my fire investigation, I 22 checked all lines, valves, and connections. Damage to any one of these components can 23 cause a leak. These components can fail for a variety of reasons, including 24 contamination, product deficiency, and misuse. Although propane is rarely used in arson, 25 I also never rule out arson as a cause of a propane appliance fire. 26 The examination of the propane tank for the popcorn warmer was made more 27 difficult due to the severe heat from the fire and it was significantly mutilated from the 28 multiple explosions of all four tanks. Still, there was sufficient evidence for me to 29 examine. The firefighters had done their job well by extinguishing the fire quickly and 30 preserving more of the evidence of the cause of the explosion and fire. Upon close
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1 examination of the valve on that propane tank, I noted stress marks, indicative of 2 tampering, around the gas valve. 3 My initial investigation report stated that there was evidence to support a 4 conclusion of a suspicious fire, and that there was possibly evidence of tampering. 5 Exhibit 8 is a true and accurate copy of my initial preliminary fire investigation report. I 6 must emphasize that my initial report is only a preliminary report. It is made to preserve 7 initial impressions of the fire and explosion, witness interviews, scene observations, and 8 so on and so forth. I based this initial, preliminary report on witness testimony and some 9 physical evidence. 10 As I mentioned, some eye witnesses observed Mel Lowe, the owner of the 11 building, leaving the scene immediately before the explosion. As an investigator, when 12 an owner of a property leaves shortly before the fire or explosion, it is a factor that one 13 puts in the suspicious activity column. Second, there were eyewitnesses who reported 14 firecracker pranks in the alley and witness accounts of someone sneaking into the back of 15 the theater, where doors had been left unlocked, shortly before the explosion. Such 16 activity also warrants a notation in the suspicious activity column. The physical evidence 17 also provided some substantiation for the possibility of tampering. There were obvious 18 stress marks around the neck of the propane tank that were consistent with tampering. 19 The stress marks were particularly heavy near the valve, where small dents were located. 20 At the time that I made my initial report and preliminary conclusions, I had not 21 had the opportunity to interview one of the most crucial witnesses – Joe/Jo Kerr. I also 22 did not have the results of a failure analysis of the propane tank and the gas valve to 23 determine whether the stress marks that I observed had weakened the gas valve 24 connection to a degree which could cause the explosion. 25 When I was able to speak with Joe/Jo Kerr, he/she confirmed that while he/she 26 was on security detail, no one was observed coming into the building, other than Mel 27 Lowe. Joe/Jo described encountering the hissing sound from the propane tank connected 28 to the popcorn warmer within minutes of turning the gas valve to “on.” Joe/Jo also 29 explained that he/she had used a wrench to maneuver the gas valve to an “on” position. 30 Despite the safety risks, sometimes consumers try to be do-it-yourselfers. Gas leaks can 31 occur if an untrained person tries to repair or modify a valve.
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1 Based upon this additional information, I reversed my initial conclusions that the 2 cause of the fire and explosion was suspicious. Based upon the physical evidence, and 3 consistent with Joe/Jo Kerr’s account of the events, I deduced that the likely cause of the 4 gas leak and explosion was not due to arson or an intentional act, but the negligence of 5 Joe/Jo Kerr in the misuse of operating the gas valve. This was another preliminary 6 theory, based upon the information that I had at the time. Exhibit 9 is a true and accurate 7 copy of my Supplemental Preliminary Fire Investigation Report. 8 Later, I interviewed Joe/Jo Kerr one more time relating to his/her observations 9 around the time of the explosion. Joe/Jo Kerr told me that he/she had forgotten to tell me 10 that he/she had noted rust near the valve of the propane tank used for the popcorn 11 warmer. 12 Regrettably, I never received a failure analysis study of the subject propane tank. 13 The subject propane tank never made it to the lab for a failure analysis work-up to be 14 done. On April 1, 2011, perhaps because it was April Fool’s Day, there were pranksters 15 that had set fires within my jurisdiction. While I was on the scene at the Theater, I was 16 dispatched to investigate a suspicious fire believed to be arson at a local school. As soon 17 as my on-site investigation at Vintage Theater Productions Company was fully complete, 18 I left the site to go to the school where arson was suspected. Before I left the theater fire 19 scene, I directed rookie firefighter Darryl Lickt to retrieve the subject propane tank and 20 deliver it to the Indiana State Police Crime Lab for failure analysis testing. I also directed 21 that the other propane tanks were to be placed in the evidence storage area. 22 Unbeknownst to me, Darryl, who later was fired from IFD, delivered the wrong propane 23 tank to the Crime Lab. Darryl actually delivered to the lab one of the back-up propane 24 tanks that had been stored in the same location. Darryl also failed to deliver the other 25 tanks to the evidence room. 26 The error was not caught until the failure analysis report had been returned. This 27 is a terrible embarrassment for me and the Department. I assure you nothing like this has 28 ever happened before – to me, or to anyone. The night was chaotic, but we deal with 29 chaos all of the time. There are no excuses, and because I was the fire investigator in 30 charge of the scene, I take full responsibility.
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1 The back-up propane tank that was tested by the Crime Lab did not have the 2 stress marks near the valve. However, the stress marks, I believe were a red herring to 3 what caused the gas leak. The Crime Lab’s failure analysis report of the back-up tank 4 provided a clear picture of what occurred at Vintage Theater Productions. Exhibit 10 is a 5 true and accurate copy of the Failure Analysis Report from the Indiana State Police 6 Crime Laboratory. The failure analysis report revealed that the back-up tank contained 7 rust around the valve, consistent with Joe/Jo Kerr’s description of the rust noted near the 8 valve on the propane tank for the popcorn warmer. More revealing was that the corrosion 9 to the brass fitting for the valve had caused it to crack. The structural deterioration was 10 so extensive that gas leaked even prior to the valve being turned to the “on” position. I 11 had not noticed the rust on any of the tanks at the time I was on-site for my investigation. 12 However, that is not unexpected. The tanks were charred and mutilated from the fire and 13 explosion. Also, the lighting was poor due to the evening hour and the conditions we 14 faced. 15 The failure analysis report identified that the corrosion of the brass fitting had 16 occurred due to contact with anhydrous ammonia. Corrosive valves, unfortunately, are 17 becoming more prevalent because crystal meth cooks use propane tanks to steal 18 anhydrous ammonia needed to make the meth. The anhydrous ammonia is not 19 compatible with brass and will corrode the valve and fittings on a propane cylinder. The 20 valve may become weakened and fail, causing a leak. The crystal meth cooks hide the 21 evidence by dropping off the cylinder to a propane dealer or retailer. 22 Based upon my experience and education in fire investigations, I believe the 23 physical evidence and the eyewitness account establish that the two tanks had been 24 exposed to similar corrosive material, and had similar failings to the integrity of the tank, 25 and thus parallel conclusions can be drawn. 26 Upon receiving the failure analysis, I subsequently interviewed Cash Proffitt, the 27 owner of Pro Propane Products, the propane dealer who had supplied the propane tanks 28 to Vintage Theater according to Mel Lowe. I questioned Proffitt on the procedures 29 utilized by his/her employees. Proffitt stated it is the policy of the company and the 30 company’s routine practice to perform a visual inspection of every propane tank at the 31 time of filling to look for physical damage. The attendant routinely checks to confirm
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1 that the cylinders are in good condition, and that stem threads are not worn or damaged. 2 Proffitt also stated that prior to delivery of a tank, a leakage test is conducted while the 3 shut-off valve is in the open position during filling. Proffitt acknowledged that Pro’s 4 employees handled the installation of the propane tanks when making a delivery and it is 5 standard procedure for the connections to be checked when a propane tank is connected. 6 Proffitt denied any knowledge of company employees involved in meth lab 7 activities. However, when I obtained a list of current and former company employees, 8 and ran a cross check on meth related arrests, I discovered that a former employee of Pro 9 Propane Products had been convicted for dealing methamphetamine in 2010. Proffitt 10 claimed that he/she had forgotten about the former employee’s meth conviction because 11 the employee was not working at Pro Products when the arrest was made. After the 12 explosion at Vintage, Proffitt stated that he/she conducted a subsequent inspection of all 13 propane tanks on the premises at Pro Propane Products and no propane tanks were 14 observed with evidence of corrosion from anhydrous ammonia. 15 I cooperated with Pro Propane Products’ hired investigator in every way possible. 16 I provided Lou Nuss with my reports and released the propane tank into his/her custody 17 to conduct failure analysis, corrosion and metallurgy tests on the tank. I even informed 18 Nuss when Joe/Jo Kerr provided “new” information to me regarding the condition of the 19 tanks. I don’t have a problem with the propane companies sending in their experts to 20 look over our shoulders. However, I always keep in mind that they have an agenda to 21 make sure the propane company is not blamed for the explosion. I’m an independent 22 investigator, so I have no agenda. I examine and analyze the facts objectively. 23 Based upon my education, background, and experience in fire investigations, and 24 based upon my examination of the scene, interviews with witnesses, and the failure 25 analysis report, I conclude that the fire and explosion on April 1, 2011 at Vintage Theater 26 Productions was caused by corrosion of the brass fitting of the gas valve to the propane 27 tank ignited by the pilot light for the popcorn warmer. It is my opinion that Pro Propane 28 Products negligently (1) failed to maintain the company’s propane tanks, (2) failed to 29 keep propane tanks in reasonable repair, (3) failed to properly perform a visual inspection 30 for physical damage of the propane tanks prior to delivery to Vintage, and (4) failed to 31 perform a proper leakage test of the propane tanks supplied to Vintage. Pro Propane
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1 Products also failed to instruct Vintage Theater of proper storage of propane tanks and 2 warn of safety risks of improper storage. Exhibit 11 is a true and accurate copy of my 3 Final Fire Investigation Report. 4 The improper placement of the propane tanks contributed to the severity of the 5 damage to the buildings, properties, and injuries sustained by Joe/Jo Kerr. The propane 6 was stored in an area with no ventilation, and thus the gasses continued to accumulate 7 with no outlet. The improper placement of the propane tanks, however, is attributable to 8 Pro Propane Products. Pro Propane has the responsibility to determine whether the 9 location of the propane tanks complies with Indiana Fire Codes. 10 I believe the Fire Inspector from the Office of the Fire Marshal properly 11 determined that the Vintage Theater complied with all fire and building codes, at the time 12 of the inspection. At the time of his inspection, the propane tanks had not been delivered. 13 I make all of the foregoing conclusions based upon a reasonable degree of 14 scientific certainty. 15 I affirm under penalty of perjury that the foregoing Statement is true and accurate 16 to the best of my belief and knowledge. 17 Dated: October 5, 2012. /s/ Ray/Rae D. Ent . 18 19 20 21 22
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1 STATEMENT OF CASH PROFFITT 2 3 My name is Cash Proffitt. I live at 1822 S. Meridian Street in Indianapolis, 4 Indiana. I am the owner of Pro Propane Products, located at 2820 Bluff Road, 5 Indianapolis, Indiana. The Company is a member of the National Propane Gas 6 Association (NPGA), a U.S. trade organization representing, among others, small 7 businesses and large corporations engaged in the retail marketing of propane gas and 8 appliances. Pro Propane Products has been in my family for four generations for a total 9 of ninety-five years - - in the same location. I took over the business after my mother, 10 who was running the business, passed away five years ago. 11 I wasn’t involved in the business growing up. The succession plan had been that 12 my older sister, Nada, would take over the family business. My mother didn’t explain 13 much of the business to me, finances or operations. My mother’s death was unexpected 14 and Nada took it hard. After a few months of trying to run the business, Nada said there 15 were too many reminders of our mother and she wanted out. She moved to Lancashire, 16 England to trace our family roots. She said the business was mine if I wanted it – for 17 nothing. She gave me the keys to the store, handed me the $300 from the petty cash box, 18 and with a pat on the back, said “Good luck, Cash.” 19 I had been working at Big Box Store in sales in their appliance section. It was 20 commissioned based, and I was pretty good at it. I could sell a glass of water to a 21 drowning man. Sales people sometimes get a bad rap. The perception is that sales 22 people are coin-operated. You put a coin in and we do our little dance. The way I see 23 sales is that you have to know your product, understand it really well, and believe in it. 24 In the information age of today, consumers are already informed of products before they 25 walk in the door. If they know more than you, they’ll walk away. So, I always read 26 literature, reviews, and ratings on the appliances to help the consumer make a decision. 27 Then you put on the charm, and like magic, you’ve got the sale. 28 Now that I am in the propane business, I read lots of articles and informational 29 literature from National Propane Gas Association to keep up on the changes in the 30 industry, safety issues, new products, cost efficiencies, and similar sorts of things. You 31 would think that with all of the product information I have rolling around in my head that
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1 I’d have a college degree. I always tell people that I went to H.K.U. They usually get a 2 puzzled look on their face until I explain it means Hard Knocks University. It’s not that I 3 couldn’t get a degree. It’s just that when I graduated from high school, I was more 4 interested in making fast money. I learn best through hands-on experiences anyway. In 5 business, that serves me well. 6 When the family business fell into my lap, it seemed like opportunity was 7 knocking at the door. I thought that the family business had always been profitable. So, I 8 thought running the business would provide a comfortable income for me. And, while I 9 was good in my sales job at Big Box, I knew it was a matter of time before the online 10 stores would force the closing of Big Box and other big store retailers selling big ticket 11 items that required lots of floor space, like appliances. I wanted to secure my future 12 while carrying on the Proffitt tradition. 13 As an owner of the business, I thought I could make my own hours and spend 14 more time on pursuing other dreams. I was interested in politics. Owning my own 15 business also bolstered my political image. The voters have more confidence when you, 16 as their elected official, care about the community. In 2007, I was elected to the City- 17 County Council of Indianapolis-Marion County, representing the 19th District for a four- 18 year term. I was re-elected in 2011. The City-Council is the legislative body for Unigov, 19 the combined city-county governments. I serve on the Parks and Recreation and Public 20 Safety Committees. I would like to see more parks and recreational opportunities for the 21 citizens on the near south side of the city. Taking these initiatives, I believe will also 22 improve the neighborhoods. I am increasingly concerned with the devaluation of my 23 home and business properties, as well as all properties on the south side. I received the 24 2011 Community Service Award in recognition of my efforts to improve the 25 neighborhoods in my district and the quality of life of its citizens. 26 My work on the Public Safety Committee, however, has not been without 27 controversy. My constituency raised issues regarding funding for Indianapolis’ public 28 service agencies. I felt it was my obligation to carry their concerns forward. I respect 29 our public servants, but we also have to be fiscally responsible in a down economic time. 30 Government needs to operate more like a business. There is not an endless supply of 31 money for every program and agency. Thus, I supported a proposal to reduce funding
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1 for police and firefighter recruit classes. I also publicly advocated for the reduction in 2 police and firefighters’ overtime, and instituting a new monthly fuel surcharge for 3 officers with take-home cars. Needless to say, I haven’t made friends with the fire and 4 police department personnel. I’m sure that’s why Pro Propane became the target of the 5 investigation of the fire and explosion of Vintage Theater. 6 When I first began serving in public office and running a business simultaneously, 7 my schedule careened out of control. My schedule was even more hectic in 2011. I was 8 up for re-election on the Council. It was a heavily contested campaign because my 9 opponent, a retired firefighter, took issue with my cost-saving measures. It is a balancing 10 act – dedicating myself to public service representing my constituents and at the same 11 time learning the business and making it profitable. For the first few years in the 12 business, I also was playing catch-up because I did not know the propane business well. 13 There was a huge learning curve for me in this industry. 14 The Company nearly had to close its doors back in 2010 as I was unable to meet 15 payroll or pay my vendors. The business had slowed. Sales were sporadic. The business 16 would have collapsed if I had not taken over with cost-savings measures. I went without 17 a salary so that I could retain good employees who knew the business. The economy was 18 partly to blame. But also, a former employee left and started a competing business, 19 taking some of the Company’s customers with her. Some long-standing customers 20 lacked confidence in my ability to take over the business, and sales plummeted more. I 21 put my sales cap back on, and was determined to sell them on me. 22 A few customers were dissatisfied with our services. Complaints were made 23 about our poor service, slow deliveries, and problems with some of our tanks. The tank 24 problems were minor issues. We have never had a tank explosion. We have never had 25 an accident in the past 27 years. I know there were several negative comments on 26 Angie’s List. I read each and every one of them. I took it as an opportunity to hear what 27 our customers wanted and ways to improve. I used those complaints to take corrective 28 action to improve the business. 29 I didn’t make changes right away because I was still trying to wrap my head 30 around the business while balancing my public duties. The initial phase of changes to the 31 Company began in late February, 2011. My first goal was to make sure that the
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1 employees were properly trained. When it comes to safe handling of propane, training 2 makes all the difference. I was the first to go through the training. If the boss doesn’t see 3 the value of training, why should the employees care? Also, through my own training, I 4 could ensure that the employees were continuing to follow proper procedures. 5 I chose to utilize the training program through GAS Check (Gas Appliance 6 System Check), an award-winning preventive maintenance program developed by the 7 National Propane Gas Association (NPGA) and funded by the Propane Education & 8 Research Council (PERC) that trains technicians on the safe handling of propane and the 9 maintenance of propane appliances. Throughout the training, I was reassured that Pro 10 Propane had good practices in place. However, there is always room for improvement. I 11 completed the training by mid-March, and instituted some new procedures to better our 12 service and safety practices. I shared some of the lessons I learned with the employees, 13 but opted to enroll them in the training later. I knew the Company was going to see 14 changes in personnel. 15 By mid-2011, I started the next phase of the Company’s transformation. I rid the 16 Company of employees who were taking the company down with poor attitudes or poor 17 work ethic. I raised salaries, and recruited new, dedicated employees. I encouraged all 18 employees through bonus incentives to enroll in the GAS Check training. I painted the 19 building, replaced windows, and put up new signage. Employees felt pride in the 20 Company, and customers respected the Company once again. The success is based upon 21 the same principles that I advocate on the Indianapolis Council. When you invest in your 22 community, whether it is the workplace or the neighborhood, people in that community 23 take pride and give back. I’ve increased the company’s profits by 18% over the profits 24 in 2010, and I have a cache of cash. Several of my commercial customers, including 25 vendors at the Indianapolis Motor Speedway, have provided excellent references for the 26 Company under my leadership. 27 I started with little knowledge of the industry, but I dove in head first and 28 immersed myself in understanding the propane industry and financial matters. Over the 29 past several years, I’ve been able to learn the business on my own and turn things around. 30 I think I have a good sense of the propane business now.
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1 Propane is a hydrocarbon that is typically stored under pressure as a liquid and 2 used as a gas. Propane sold on the market is not pure 100% propane. It is more 3 accurately referred to as liquefied petroleum gas (LP gas). It is colorless, odorless and 4 tasteless. Thus, all propane fuels include an additive to create an odor, so that people can 5 easily smell the gas in case of a leak. 6 Propane exists in liquid form below its boiling point of -44°F; above that 7 temperature it becomes a vapor or gas. In comparison, water boils at 212°F; below that 8 temperature water is still a liquid. Similar to water when it boils and gives off steam, 9 propane gives off vapor or a gas when it boils. Propane is generally stored and 10 transported as a liquid in steel cylinders allowing for vapor space above the liquid. When 11 a propane cylinder is filled, it is only filled to 80% to allow room for the liquid to "grow" 12 as the temperature increases. Propane is considered an ideal fuel because it is easy to 13 transport and it is easy to convert to a gas form because it vaporizes as soon as it is 14 released from its pressurized container. Therefore, a carburetor is not required. Instead, a 15 simple metering nozzle suffices. 16 Because of its favorable qualities, the small steel cylinders can be easily filled and 17 either delivered to the consumer, or the consumer can bring the tank to the dealer’s site 18 for refill. Most people are familiar with a propane tank for their gas grill. The typical 19 size propane tank in that application is a 20-pound tank. Commercial applications 20 generally require a larger tank size. To determine the consumer’s size needs for their 21 propane tank application, a little mathematics is required. Each tank has a certain BTU 22 (British Thermal Unit) capacity. To determine the running time of any given propane 23 tank, simply divide the BTU capacity of the tank by the appliance’s BTU rating. So, for 24 example, using the popcorn maker that Vintage Theater had purchased, the BTU rating is 25 33,500. A 20-pound cylinder BTU capacity is 403,270, which means that it would only 26 last approximately 12 hours. A 40-pound tank has 860,542 BTU capacity, or in the case 27 of Vintage’s popcorn maker approximately 25 hours running time. 28 When Mel Lowe contacted Pro Propane, I recommended the 40 lb. tanks for the 29 popcorn maker and warmer. Based upon 5 shows per week, at two hours running time 30 for the popcorn maker per show, the tanks would require re-filling only every two weeks 31 or so. Mel requested to have two additional tanks delivered for back-up purposes.
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1 Propane dealers must follow certain governmental rules and regulations regarding 2 filling cylinders and determining if cylinders are safe to fill. Propane cylinders have 3 certain safety mechanisms in place, including, relief valves, protective collars, and foot 4 rings. 5 The safety relief valve is a required device on a propane tank. It is designed to 6 relieve excess pressure. The relief valve, or pop off valve, is critical to the safety of the 7 propane cylinder. In the unlikely event of excess pressure, the relief valve keeps the tank 8 from exploding. If tank pressure rises, the valve will open and a hissing sound will be 9 heard. If the pressure in the tank increases more, the valve may open completely. When 10 the valve is completely open, it will make a loud pop sound followed by a blast. 11 The propane cylinder also has a service valve which is used to turn the gas on or 12 off when operating the appliance connected to the propane tank. The service valve works 13 similar to a water faucet. A hand wheel is cranked to open or close the gas from the tank. 14 But, there is a very distinct difference between the service valve of a propane tank and a 15 water faucet. A water faucet allows a person to control the amount of the water flow. A 16 propane tank’s service valve, on the other hand, is only used for turning the gas on or off. 17 A regulator on the propane tank regulates the gas flow at a safe level. 18 The service valve of a propane cylinder is protected by a collar, also known as a 19 neck ring. If a cylinder doesn’t have a collar, the valve is unprotected and can be 20 damaged. Any damage to the valve could cause a dangerous gas leak. Without the 21 collar, a propane cylinder is unsafe and should be discarded. 22 A foot ring is required on the bottom of a propane cylinder. Propane tanks need 23 to be stored upright. A foot ring provides stability and helps the cylinder stand upright. It 24 also keeps the tank from contacting the ground. 25 The container is the body of the propane tank. It is the part where the propane is 26 stored. The container is usually made of steel. It is important to make sure that the tank 27 does not have dents. If a propane tank has a dent it should be removed from circulation 28 because it is potentially unsafe as the integrity of the tank may be compromised. 29 However, propane tanks are designed to withstand significant force so that the propane is 30 not compromised. Propane cylinders are not easy to rupture. Propane cylinders are made 31 of material that is very sturdy and not easy to crack or break.
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1 The integrity of the tank can also be compromised due to rust. The exterior of the 2 tank is steel, so rust can cause pitting. Pitting can possibly weaken the tank causing a 3 leak. Rust that has not pitted the tank can be cleaned using a wire brush and repainting 4 the tank. 5 Propane is flammable when mixed with air (oxygen). However, there also has to 6 be an ignition source, such as an open flame, electrical spark, or static electricity. 7 Propane is often depicted in Hollywood as the catalyst for building fires and explosions. 8 The myth is perpetuated by videos posted on the internet with propane tanks being 9 exposed to extreme heat or damage to forcibly cause them to explode. The National Fire 10 Protection Association (NFPA), however, does not even list propane as a leading cause of 11 fires. And here’s my point – NFPA does not list propane as a leading cause or 12 contributor of fires because propane is not as unsafe as one might think. 13 Many people mistakenly believe that propane tanks are inherently dangerous. 14 That is also false. Propane tanks simply do not explode, except under the most extreme 15 circumstances. Under normal circumstances, a propane tank will not rupture and it will 16 not explode or implode. For a propane tank to explode, several things have to occur. 17 First, the gas has come in contact with the air in order to be combustible. Second, there 18 has to be an ignition source – something to set fire to the gas. A cylinder also does not 19 implode through excess pressure build-up. The tank’s pressure relief valve is a safety 20 device designed to prevent the excess pressure. Thus, a propane tank simply cannot 21 explode on its own. The only way a propane tank can explode is if it is damaged, or if 22 the pressure relief valve is inoperable. 23 When a propane tank does explode, there is an automatic assumption that the 24 propane company is at fault – it’s their tank. Nothing could be farther from the truth. 25 Pro Propane Products takes all necessary steps in its power to prevent an explosion of one 26 of its propane tanks. One of the first steps is the inspection of each and every propane 27 tank that goes out of our door. Prior to filling a tank, Pro’s employees will undertake a 28 visual inspection of each and every tank or cylinder, whether it is our tank or one that a 29 customer brings in to be refilled. The inspection involves looking for anything that could 30 compromise the integrity of the tank, with specific attention to: (1) damages to the 31 surface of the tank, such as dents, cracks, or bulges, which could indicate compromise to
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1 the integrity of the tank; (2) rust or pitting on the surface of the cylinder; and (3) 2 problems with the cylinder foot ring, collar, service valve, or relief valve. We also note 3 the date the tank was manufactured or recertified. 4 After the visible inspection is performed, the tank is filled and then a leak test is 5 performed using a manometer and fuel pressure gauge. We also test to make sure that the 6 propane tank(s) delivered have the odor added. Each of these checks is documented, and 7 indicated on the delivery receipt. The checks were something that Pro Propane Products 8 always did, but I instituted the practice of documenting these checks after my training 9 through GAS Check. 10 It is part of PPP’s routine practice to explain to the customer the scope of the 11 inspection and/or testing. We also explain what we will not be doing, such as checking 12 the customer’s appliance or venting systems. Additionally, we always advise our 13 customers as to safety issues, even if they are a regular customer and have heard it 14 several times in the past. We inform the customer what to do if they smell gas or 15 otherwise suspect a gas leak. The customer is informed to immediately extinguish any 16 flames, shut off the gas, and to leave the area immediately. The customer acknowledges 17 the technician’s explanations on the delivery receipt form. Finally, the customer is 18 provided with our Safety Warning Sheet. The technician advises the customer to read the 19 information and to contact the Company with any questions. Our technicians, as part of 20 their routine practice, also advise the customer to save the Safety Warning Sheet and 21 place it in a convenient location for easy reference. The delivery receipt/ inspection form 22 documents that the Safety Warning Sheet was given to the customer. Providing the 23 customer with the Safety Warning Sheet became part of the Company’s everyday 24 practice after my training thru GAS Check. 25 Vintage ordered four 40-pound propane cylinders on March 14, 2011 to be 26 delivered to the theater on East Washington Street. I had not given Vintage an expected 27 delivery date, nor did anyone demand a certain delivery date. I knew the tanks would be 28 needed by April 1 st and had fully planned to deliver the tanks prior to April 1 st . We were 29 particularly busy that month and our inventory was low so I postponed delivery to 30 Vintage. When someone from Vintage contacted me and demanded the delivery, I 31 processed the order. The tanks were delivered on March 24 th . Merely because our
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1 inventory was low does not mean that the tanks did not meet our strict quality 2 requirements. There were no problems with the tanks that were delivered to Vintage. 3 As our routine practice, Pro Propane does not connect the tanks to the customer’s 4 appliance. It is the responsibility of the customer to inspect the appliance and to connect 5 the tank in a safe manner. When Pro Propane delivers the propane cylinders, often we 6 will leave all tanks outside. However, as a courtesy to the customer, we will deliver the 7 tanks that will be immediately connected to the location directed by the customer. Any 8 extra storage tanks ordered by the customer would be stored outside as a matter of safety. 9 Our records do not indicate where the tanks were delivered in this instance. However, I 10 would expect our technicians to follow the normal protocol. 11 In the case of the four propane cylinders that were delivered to Vintage Theater 12 Productions, the delivery receipt shows all of the propane tanks were properly checked. 13 No dents or other physical anomalies were noted on the tank or the components of the 14 tanks. Vintage had the opportunity to add remarks on the delivery receipt form as to the 15 condition of the tank. No remarks were added by Vintage indicating concerns with any 16 rust, pitting, or dents on the tanks. If the failure analysis report detected rust on a tank, it 17 would not have been visible to the technician; otherwise it would have been documented. 18 In any event, the delivery receipt also shows that no leaks were detected. So, any rust 19 accumulation had not breached the integrity of the tank. There was nothing wrong with 20 the tanks at the time we delivered them. 21 It’s my opinion that someone intentionally tampered with the tank as a prank or 22 sabotage against Vintage. Investigator Ent reported that witnesses saw someone enter the 23 back of the theater after throwing some fireworks in the alley. Dee Part confirmed that 24 eyewitness report. There is also clear evidence that the tank was mishandled. There 25 were no dents or stress marks on the tank when it was delivered to Vintage and the test 26 for leaks was negative. Joe/Jo Kerr admits to using a wrench on the tank, and even 27 banging the wrench on the valve. I can’t imagine why anyone would bang on a tank that 28 contains a combustible liquid. Investigator Ent observed the dents and stress marks on 29 the tank that exploded first. Kerr’s pounding on the propane tank’s valve likely caused a 30 breach to the integrity of the tank.
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1 Mel claims that “Rusty” of Pro Products failed to instruct Vintage on the proper 2 placement and storage of the tanks. First, Pro Propane has never even had an employee 3 named “Rusty” or “Dusty.” In addition, Mel Lowe, on behalf of Vintage Theater 4 Productions, signed the delivery receipt acknowledging the inspections, the warnings, 5 and satisfaction with our services. 6 The warnings clearly provide that the propane tanks should not be stored indoors. 7 Propane tanks should be stored outside away from any source of ignition. Cylinders not 8 in use should be stored in a well-ventilated area. It is not advisable to store any propane 9 container indoors. If propane is vented to the outside air, it will quickly dissipate. When 10 a leak occurs from a propane tank used in a non-ventilated area, the propane vapor, which 11 is heavier than air, will collect on the floor and continue to build as more propane leaks. 12 With no dissipation of the flammable gas, once the gas hits the flame from the pilot light 13 of the appliance in an enclosed, unvented room, a fireball and massive explosion will 14 occur. 15 Vintage received repeated warnings from Pro Propane Products regarding safety 16 issues for the propane tanks, which Vintage ignored. Warnings were provided on PPP’s 17 Invoice to Vintage, on the Delivery Receipt, and the Safety Warning Sheet, provided at 18 the time of the delivery of the propane tanks to Vintage (Exhibits 6, 12, and 13 19 respectively). Mel Lowe acknowledged the warnings and safety information on the 20 Delivery Receipt, as shown by Mel Lowe’s initials. Exhibits 6, 12 and 13 are true and 21 accurate copies of the respective documents, which were made at the time that the 22 propane tanks were delivered, made by a person with knowledge of the contents therein, 23 the making of the documents was a regular practice of Pro Propane, and the records are 24 kept in the course of the regular business of Pro Propane. 25 As soon as I heard on the news of the explosion of a propane tank at Vintage 26 Theater, I immediately contacted an investigator known in the propane industry. 27 Investigator Nuss has investigated more propane explosions than any other expert in the 28 country. I knew that retaining Nuss to investigate the Vintage Theater explosion would 29 get to the truth of what happened. Nuss specializes in this type of investigation and 30 would know more what to look for than an investigator with the fire department. I was 31 glad I called Nuss to investigate because Ent has issued three separate reports on this
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1 explosion, all with a different conclusion as to what happened. Ent also failed to preserve 2 the crucial piece of evidence in this case. It makes me question the reliability of any of 3 his/her conclusions. 4 Ent didn’t even interview me until three or four weeks after the explosion. And 5 then, it seemed it was only to talk about some meth head. At the time Ent questioned me, 6 I did not remember that we had a former employee that was later convicted of 7 distributing meth. I don’t know how that even relates to the Vintage explosion because 8 that employee hasn’t been around since August, 2010. Thankfully, Nuss is not chasing 9 red herrings, and focused on the real cause of the explosion – misuse and mishandling of 10 the propane tanks by Vintage and the failure of the Fire Marshal’s Office to recognize 11 improper storage of the propane tanks. 12 I affirm under penalty of perjury that the foregoing Statement is true and accurate 13 to the best of my belief and knowledge. 14 Dated: October 5, 2012. /s/ Cash Proffitt . 15 16
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1 STATEMENT OF DEE PART 2 3 My name is Dee Part. I moved to Indianapolis in September, 2008 and currently 4 live at 340 E. Ohio Street in Indianapolis, Indiana. I was born and raised just outside of 5 Cambridge, Isanti County, Minnesota, where life was pretty idyllic. Cambridge is a 6 small community with just under 9000 population. My parents still live in Isanti County 7 on our family farm. 8 I graduated from the University of Minnesota with a Bachelor of Arts degree in 9 Economics and Political Science in 2005. I then moved to New York City to attend 10 Columbia University’s Graduate School of Arts and Sciences, School of Journalism. 11 The Graduate School of Journalism was founded by Joseph Pulitzer in 1912. The 12 program stresses academic rigor, ethics, journalistic inquiry and professional practice. 13 Moving to the big city of New York from the small community of Cambridge was an 14 eye-opener. I was like a kid in a candy shop. I took it all in. I went to as many 15 Broadway shows and off-Broadway shows that I could afford and had the time with my 16 rigorous studies. My Masters of Science in Journalism degree, with a concentration in 17 political journalism, was conferred in May, 2008. 18 Journalism suits me well. I love research and reporting facts. My insistence on 19 precision supports the important fundamentals of reliability and credibility for any 20 reporter. My ability to organize the collection of research in a logical fashion makes the 21 story easier to follow. Equally important is my ability to show empathy. The best 22 journalists are the advocates for the person who has none, they seek to include rather than 23 exclude, and they are the first to remember the forgotten heroes, great or small. 24 After graduation, I began my journalism career as a reporter for the Indianapolis 25 Star covering politics. I was happy to return to my Midwest roots. The newsroom was 26 buzzing all the time, the excitement palpable because it was a presidential election year. 27 The seasoned reporters were covering the high profile elections, and I was picking up the 28 work they would have ordinarily done. I was put on assignments right and left, having to 29 churn out pieces that the readers, and editor, would like. After the election, my work 30 schedule was more manageable, so I decided to explore some creative writing skills. I 31 figured it could only help my writing as a journalist.
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1 I chose to sign up for a workshop offered by Mel Lowe, a renowned and 2 credentialed playwright. The workshop was exhilarating. I drew upon skills that were 3 my staples - research, organization, logic, and empathy while developing new tools to 4 write more creatively. Mel encouraged me to explore subjects to write a historical piece 5 that I could use to write a play. 6 Mel and I would head to a local coffee shop after the class. At first, we really 7 clicked. We shared similar experiences. We grew up in small towns in the Midwest, 8 moved to New York City to pursue graduate work, and had a passion for Broadway and 9 off-Broadway productions. 10 Our coffee shop discussions continued to evolve. I would discuss historical 11 subjects for a play. Mel mentioned that he/she wanted to start a theater company in 12 Indianapolis for stage productions spotlighting historical figures and subjects. Mel asked 13 if I was interested in a partnership for this start-up theater company. It seemed like a 14 logical fit – Mel’s experience in stage productions, my experience in research, filling a 15 void in a community that embraced the arts, and working together with someone who 16 shared the same vision. 17 In October, 2009, we formed a limited liability company as the two sole members 18 and named it Vintage Theater Productions, LLC. Mel had money from his/her successful 19 stage career in NYC, plus he/she was well connected with affluent benefactors in the arts 20 community in and around Indianapolis. The concept of stage productions with historical 21 references had generated interest and investors were ready to loan money to back an 22 award-winning playwright. 23 Mel was enthusiastic, energetic, and anxious to get the project up and running. I 24 tend to be more methodical and cautious, deliberating on decisions after I’ve done my 25 homework. Mel moved full steam ahead. There wasn’t any holding back Mel. Mel 26 located an old warehouse for sale on East Washington and convinced me that it would be 27 ideal for the theater. The property also included a small, adjacent building that shared the 28 east wall of the warehouse. Mel and I immediately seized on the idea to use the small, 29 adjacent property for an after-dinner theater crowd coffee and dessert shop. Converting 30 an old warehouse was appealing because the ambience played into our historical concept. 31 The price was right too - $67,000. Mel thought it was a steal. The economic downturn
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1 between 2007 and 2009 lowered property values to make it affordable for us. I wanted to 2 explore renting space that was move-in ready for a theater, but Mel told me to trust 3 him/her, and I relented. 4 I emptied my savings and put everything I had into the business - $40,000. It was 5 money that I had scraped and saved from my current job and money earned during my 6 college days freelance writing or researching for other writers. The money was a lot to a 7 person who grew up with modest means. I looked at it as an investment in my future 8 because journalists don’t exactly ride the gravy train. My annual salary at the 9 Indianapolis Star was $34,000. Mel contributed five times more cash into the project. 10 He/She was more established financially and could bankroll much of our start-up costs. 11 Still, Mel insisted that we were equal partners in this venture. We each were 12 contributing equally to writing the play – I drew upon my talents in research and Mel 13 took my research and used his/her writing talents to create the script for the play. 14 The play - - just talking about it conjures up bittersweet memories. I think fondly 15 of the play because I know I was an equal partner in its creation and development. When 16 you contribute to the creation of something you have a sense of ownership. Mel robbed 17 me of that feeling when he/she didn’t give me any credit, or money, as the co-playwright 18 for “ The Wasp ” script. I should have taken Mel to court over my rights to the play. I’m 19 not surprised by the explosion of the theater. For all of Mel’s Feng Shui stuff, he/she 20 forgot one key element - - karma. What goes around comes around. 21 I really can’t recall who had the inspiration first to write a play based upon the 22 inaugural Indy 500 race. Mel suggested that the topic of our first show be something that 23 reached a broad audience. I had been researching early automobile stories, and so it was 24 a natural leap to jump to the most famous of automobile races – the Indy 500. 25 Coincidentally, the inaugural race would be celebrating its 100 th anniversary in 2011, so 26 there would be time to develop the script and ride on the tail of the 500’s anniversary. 27 Even the United States Post Office would help with marketing our play when it issued the 28 Commemorative Stamp featuring the 1911 Marmon Wasp. 29 When I began researching the inaugural race, I was fascinated with the history 30 and background of the race. The characters were colorful, and the legends storied. I fed 31 all of my research to Mel, who shared my fascination and enthusiasm. Ray Harroun’s
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1 engineering marvel, the Wasp, named for its sharp pointed wasp-like tail and black and 2 yellow paint scheme, incorporated innovative ideas like the rearview mirror and 3 aerodynamics. He claimed he only raced to observe his creations. As a researcher, I 4 identified with Harroun, who was nicknamed the “Little Professor.” 5 But there’s some sadness to Harroun’s story too. Harroun earned $14,250 as the 6 winning purse of the inaugural race, but died living modestly and unpretentiously in a 7 mobile home in Anderson, Indiana. Even though it is well-documented that he was the 8 first person to invent the rearview mirror, Elmer Berger is credited with inventing the 9 rearview mirror because he installed it on regular automobiles, not just race cars. Ironic, 10 isn’t it? The person who I researched for the play wasn’t credited for his contributions. 11 Even at the time of the race, he didn’t get much credit. Back in those days, the car 12 manufacturer got the credit for the win. As Harroun stated, “It wasn’t a victory for me, it 13 was a victory for Marmon. I just happened to be the driver.” 14 I suppose, likewise, the victory for the play was for the Company and not for me 15 or Mel. So, when I ended my business relationship with Mel, I willingly gave up rights 16 to any income the play might generate. Still, I never contemplated that Mel wouldn’t 17 even acknowledge my contributions as a co-author or even a research assistant in the 18 media or the program notes. Mel didn’t even make a footnote to give me credit for the 19 months and months of research that contributed immensely to Mel’s ability to write the 20 script. It really irked me. 21 A little bit of recognition would’ve gone a long way in bolstering my job 22 opportunities. So, yeah, I let off a little steam. I threw a brick through the box office 23 window of the theater in February after learning that Mel failed to give me any credit 24 publicly for “ The Wasp .” The brick was a memento of the original foundation of the 25 theater company. Mel and I had the brick engraved when the restoration of the building 26 began. I thought throwing it through the box office was symbolic. I paid for the 27 damages within a week of my actions. 28 I don’t remember that I said anything when I threw it, but, even if I did, I certainly 29 wasn’t threatening that I would do further damage to the building. After all, the theater 30 and my coffee shop share a common wall. Not only would I not want to damage the 31 shared wall, but my business depends upon the success of the theater. Sure I have an ax
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1 to grind, and I was bitter, but I need the theater for the coffee shop to succeed. Anyway, 2 it’s just not in my nature to be vindictive. I threw the brick, I made my point. I moved 3 on. End of story. 4 The trouble in our business partnership began really with the restoration of the 5 theater building. I became concerned about finances and structural issues. Mel, typical 6 of his/her personality, was more laid back, and said not to worry. But I couldn’t stop 7 worrying. As the restoration was taking place, I saw dollars everywhere I turned. I was 8 concerned the theater would bleed us dry before the show ever got up and running. I 9 suggested that we obtain quotes for repairs before committing to a vendor. I asked for 10 budgets, and monthly cash flow and financial statements. Mel seemed to find my 11 frequent inquiries regarding the finances as tedious, but I just wanted to know what the 12 financial condition of the company was on a regular basis. Isn’t that being a responsible 13 business owner? 14 It was obvious that our financial footing was shaky. Even our investors were 15 pressing for payments on our loans. I thought we might lose it all if they carried through 16 with their threats of foreclosure. Mel ignored the financial woes of the Company. Even 17 now, it seems he/she has conveniently forgotten that the Company was financially in dire 18 straits before the show opened. Of course, the insurance money on the building paid Mel 19 a nice dividend. Mel insured the building for $400,000, even though we bought the 20 building for $67,000, plus the expenses incurred for the renovation. At least that was one 21 smart decision Mel made with our start-up money. 22 Generally, however, Mel’s appropriation of the money we had for the restoration 23 project was irresponsible. Mel shifted money away from expenses for practical needs 24 and used those funds to add to the Feng Shui design of the building. I admit I did not 25 embrace the Feng Shui philosophy. It was impractical and money not well spent in my 26 view. A more practical use of our limited resources would have been to have a properly 27 designed building with electrical outlets and heating, ventilation and air conditioning 28 system. Mel said the ventilation would interrupt the Earth and Water balance. 29 Even if I had been swayed by Feng Shui, I would not have given it more 30 importance than safety. We went head-to-head over Mel cutting costs at the risk of 31 compromising safety. When Mel had to remove a wall to allow positive energy to the
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1 space, I was livid. I confronted Mel, and Mel’s typical laid back response was “We need 2 positive energy. Safety is of no concern to me.” I was dumbfounded with Mel’s 3 unwillingness to listen to my concerns and his/her disregard of critical safety issues. 4 I was as diligent about the safety issues as I was about keeping informed of our 5 finances. I insisted on confirmation and paperwork to support that the restoration was in 6 compliance with ordinances, codes, and regulations. I suppose I was a fly in the ointment 7 as far as Mel was concerned. I had a right to know. The devil is in the details, and after 8 Mel had told me that he/she didn’t care about safety, I felt it was my duty. 9 Of course, I was not in favor of taking over the old warehouse and converting it to 10 a theater anyway. I feared that there would be asbestos issues in the building that we 11 would have to pay big dollars to remediate. Those concerns didn’t materialize, but other 12 safety issues I raised were legitimate. One concern I raised involved fire hazards. The 13 building, due to its age, was not equipped with a sprinkler system. It was not required by 14 Code to add a sprinkler system because the building had been grandfathered. 15 Nevertheless, I insisted to Mel that the sprinkler system was necessary. Yes, it would 16 have cost a lot of money to add a sprinkler system to the building. Money, admittedly, 17 we did not have. But, if we had cut back on some of the Feng Shui design stuff, it would 18 have been at least a decent down payment toward the cost, and would have reduced our 19 insurance premium, saving us money. 20 The more we continued forward with the project, the more Mel and I clashed, and 21 the more our differences became clear. I also became increasingly uncomfortable that the 22 business would fold and I’d be left with nothing but debt. So, on December 20, 2010, the 23 business relationship ended and I was no longer an owner of Vintage Theater 24 Productions. I was not asked to leave the business. It was my decision to voluntarily 25 terminate the business relationship. Mel and I settled matters amicably. Mel, who had 26 the larger financial investment, kept the ownership of the Company, as its sole owner. 27 The Company kept the theater building, and deeded the coffee shop property to me. It 28 was an upscale eclectic coffee and dessert bar for after show theatergoers. I was happy to 29 be the owner of the building adjacent to the theater. It had not needed much in the way of 30 restoration. The safety concerns I had with the theater were not concerns for the coffee 31 shop. Mel and I had named the coffee shop Melody as a clever usage of our names. I
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1 opted not to change the name after the business split up. Mel’s name was widely known 2 in affluent circles. It was my only opportunity to get something back from Mel. 3 The Company also kept all rights to the play, “ The Wasp.” I had reluctantly 4 agreed as my price for peace of mind to extricate myself from the financial drain of the 5 business and building, and the unsettling feeling I had about the safety of that place. 6 My ownership and association with Vintage Theater ended well before the show 7 would open. In fact, at the time I left, I had serious doubts the show would ever be on 8 stage. So, I was long gone before orders were placed and items were delivered to prepare 9 for the theatergoers. I still kept in touch with some of the friends I made at the theater. 10 Occasionally, they would tell me the latest gossip. One such time, one of the stage crew 11 told me that Joe/Jo Kerr had played a prank on the stage manager by setting off a 12 firecracker in the prop area. They said Joe/Jo did that a lot just to “shake things up.” I 13 was also told that Mel’s financial troubles were growing and that he/she joked with the 14 stage crew that” the best Feng Shui balance might be Fire – literally.” 15 Once I left the theater company, I felt an immediate sense of relief. All my 16 worries and concerns were behind me . . . or so I thought. In the evenings after putting 17 in my day of work at the Star, I would return to the coffee shop to relax and enjoy the 18 camaraderie of some of the regulars. The building didn’t have room for sidewalk seating 19 out front, but I was able to add a nice patio to the back and add outdoor seating. In the 20 winter, we had few takers! But, as a true-blue Minnesotan, I tolerated the cold more than 21 others and would enjoy the cold, fresh air on occasion. I was out on the patio the day that 22 the propane tanks were delivered. I saw Pro Propane deliver four tanks to Vintage, 23 leaving two of the tanks in back and bringing the other two tanks into the building. I also 24 saw the delivery guy talking to Mel and pointing at a single sheet of paper like he was 25 explaining something. I could not hear what was said. I went into the coffee shop a few 26 minutes later. I later noticed that the two extra propane tanks were no longer sitting 27 outside the back of the building, but I couldn’t tell you when they were moved or who 28 moved them. I wondered at one point whether someone had walked off with them 29 because we have some pranksters in the area. 30 Sometimes the neighborhood around the theater and the coffee shop can be 31 rowdy. The City is working on revitalizing that area of town, but it’s still a work in
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1 progress. The pranksters’ antics are pretty harmless. A few times I would find the chairs 2 on the patio stacked like a pyramid, or tinsel hanging from the light fixtures in back of the 3 theater and my coffee shop. Sometimes they lit firecrackers in the back alley. I think 4 Joe/Jo Kerr was one of them at times, but I never saw him/her in the act. 5 The pranksters could easily have entered the theater on the night of the explosion. 6 I knew, and I’m sure others also knew, that the doors to the back of the theater were left 7 unlocked because frequently one of the actors, actresses, or stage crew would go out back 8 for a smoke. I’ve often seen some of the pranksters sneaking around the back door of the 9 theater, but on the night of the explosion I did not see anyone lurking around. Of course, 10 I wasn’t standing guard. That should have been someone’s job at the theater. 11 When the explosion occurred, I heard one loud boom, followed by an even louder 12 boom. The wall that the coffee shop shares with the theater was obliterated. Chunks of 13 brick and concrete flew up in the air and came crashing down. I saw this huge fireball 14 light up the sky in an eerie way. Fortunately, I was the only one in the shop at the time, as 15 the theater crowds had not yet arrived. So, no one was hurt. The coffee shop suffered 16 extensive damage, but Vintage Theater’s insurer paid for the repairs to the building. The 17 reconstruction to the shop after the explosion actually improved the place and we now 18 have a better seating area. I also insisted that the insurance company pay for a sprinkler 19 system. They didn’t argue with me on that one! We still have unresolved issues 20 regarding my claim for loss of business income during the two month period that 21 reconstruction was undertaken. 22 I affirm under penalty of perjury that the foregoing Statement is true and accurate 23 to the best of my belief and knowledge. 24 Dated: October 5, 2012. /s/ Dee Part . 25 26
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1 STATEMENT OF LOU M. NUSS 2 3 My name is Lou M. Nuss. I have lived in Dallas, Texas all of my life, and 4 currently reside at 106 Rojo Avenue in Dallas. I grew up around oil rigs and an 5 occasional explosion, so it was a natural path for me to enter a career as a consulting 6 engineer for fire and explosions. I am a partner in the consulting firm of Sparks, Burns & 7 Hayes Engineering. I am a Certified Fire and Explosion Investigator (C.F.E.I.) and I 8 have a certification from the National Propane Gas Association (NPGA) for its Certified 9 Employee Training Program (CETP). I am also accredited through the American Society 10 of Metals International (ASM) in Failure Analysis and Metallurgy, and accredited 11 through the National Association of Corrosion Engineers. 12 I received my Bachelor of Science in Civil Engineering from the University of 13 California – Berkley in 1981, and my Masters of Science in Chemistry from the 14 University of Texas - Austin in 1984. My Doctorate in Physical Chemistry from the 15 Massachusetts Institute of Technology was conferred in May, 1988. I have authored 16 numerous scientific articles and reports on propane fires and explosions, fire cause and 17 origin, corrosion, metallurgy, and failure analysis. 18 In the course of twenty-three years, I have investigated over 1200 incidents, 19 including 380 gas or propane explosions, 220 arsons, 350 electrical fires, and 175 carbon 20 monoxide (CO) poisoning incidents. I am also a civil engineer and have experience in 21 the construction industry. I have been retained as an expert in over two hundred cases 22 and have given expert testimony in over one hundred cases dealing with propane fires 23 and explosions. Exhibit 14 is a true and accurate copy of my curriculum vitae. I believe 24 my credentials show that I am the one expert who can properly evaluate all of the 25 evidence. 26 Most propane companies are members of the National Propane Gas Association 27 (NPGA). NPGA has a strong network with support and resources for propane companies 28 from employee training and safety precautions to litigation support. I am on the list of 29 recommended expert witnesses for NPGA. Propane companies frequently contact me as 30 soon as an explosion has occurred when the explosion potentially may involve a propane 31 container. I am generally on the scene of the explosion in as little as 4 hours to no more
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1 than 48 hours after the incident in order to provide the most thorough investigation and 2 analysis and to preserve crucial evidence. 3 I am on the scene of the explosion quickly because, frequently, the primary focus 4 after a loss is clean-up. The property owner does not have an understanding that crucial 5 evidence lies beneath the rubble. Even where another fire investigator has been to the 6 scene, that investigator may have missed key evidence that would then be lost in a clean- 7 up. Placing the blame on the gas company is the easiest solution for some fire 8 investigators. Thus, it is critical to have someone with a strong background in propane 9 fires and explosions, who can get through all of that rubble and determine the actual 10 cause. 11 One hundred percent (100%) of the time I have been retained as an expert in a 12 propane tank fire or explosion, I have been retained by the propane company. However, I 13 do not always conclude that the propane company was not at fault. In 85% of all the 14 propane gas fires or explosions that I have been retained to investigate, I have concluded 15 that either the propane company was not at fault or that fault was due to or contributed by 16 improper usage by an operator and failure to follow guidelines. The combination of my 17 experience and expertise has resulted in many favorable judgments when my findings 18 have been presented to juries. My fees for my expertise are $900 per hour for 19 investigation, testing, and analysis. If I am needed to testify, the fees for my expertise are 20 $8000 per day, plus travel expenses. I make no apologies for my fees. My credentials 21 and expertise speak for themselves. Even though I am retained solely by the propane 22 industry, all of my investigations are approached with complete objectivity. I base my 23 findings only on scientifically provable information. I do not speculate on any cause that 24 cannot be substantiated. 25 The fact of the matter is propane cylinders do not explode easily, and certainly 26 they do not explode on their own. Propane cylinders will not explode when they are used 27 and stored in accordance with NFPA requirements. To understand why a cylinder 28 explosion is unlikely, it is important to understand that the cylinder tank is made of steel. 29 All propane gas containers are manufactured to withstand extensive external damage. 30 Even when the integrity of a cylinder is compromised due to a forceful impact, the 31 containment of the liquid propane is secure. However, if a technician or a consumer
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1 observes damage to a propane tank, if should be taken out of service. In summary, 2 propane cylinders are designed to withstand impact without rupturing or exploding. The 3 other lesson in propane explosions is that for an explosion to occur there needs to be 4 more than the vapor escaping. Although the propane gas is flammable once it is mixed 5 with air, in order to explode or cause a fire, there has to be an ignition source. Storing a 6 tank outdoors, preferably, or in a ventilated area is safer because it allows the vapors to 7 dissipate in the air. 8 I enjoy the challenge of the more difficult cases that require my specialized 9 experience, knowledge and expertise. A fire and explosion investigator uses NFPA 921, 10 "Guide for Fire and Explosion Investigations", published by the National Fire Protection 11 Association (NFPA), for guidelines and recommendations for the safe and systematic 12 investigation and analysis of fire and explosion incidents. The National Association of 13 Fire Investigators and the International Association of Arson Investigators (IAAI) 14 strongly recommend familiarity with NFPA 921. If a particular fire investigator does not 15 follow certain guidelines in the investigation, the investigator must be prepared to justify 16 the exclusion. 17 Determining the origin and cause of a fire or explosion is a complex task. A fire 18 and explosion destroys the physical evidence at its origin. In approximately 20% of all 19 fire investigations, the damage is too severe to determine a cause. When the scene of the 20 explosion and fire is a charred pile of twisted ruins, proper investigation is essential to 21 determine the cause of the fire and explosion. As part of the investigation, it is important 22 to accumulate sufficient evidence to account for such things as the source of the 23 combustion, the probable ignition source, the resultant propagation and the observed 24 damage. Obtaining the evidence requires a thorough and methodical investigation. Slow 25 and steady wins the race. The investigation cannot be rushed. In gathering the evidence, 26 as well as analyzing it, the investigator must have an understanding of the chemical and 27 metallurgic attributes of components involved in the fire and explosion, and an 28 understanding of flammability, ignitability and combustion. The evidence gathered is 29 analyzed by developing and testing a hypothesis to explain what occurred. 30 I was on the scene of the Vintage Theater Production fire and explosion on 31 Sunday, April 3 rd at 4:40 pm. Unfortunately, the clean-up of the scene was already
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1 underway. Thus, I was not able to examine any evidence on site to pinpoint the origin of 2 the fire. With methodical precision, I examined the scene, digging through debris and 3 searching for any clues that might have been overlooked. 4 I did locate evidence of charred firecrackers near the scene, consistent with 5 testimony of pranksters setting off firecrackers around the time of the explosion. 6 Location of the firecrackers at the time of the explosion was inconclusive, however, due 7 to alterations to the site from bulldozers clearing the debris. A subsequent laboratory test 8 of the chemical compounds detected on the subject firecrackers did not reveal evidence 9 of contact with propane. No other relevant physical evidence at the scene was observed. 10 I was informed by the Indianapolis Fire Department that the propane tanks had 11 been delivered to the State Crime Lab to undergo metallurgic and failure analysis testing. 12 I also obtained the report of Investigator Ent dated April 1 st in which he/she noted that 13 physical evidence showed stress marks and dents on the propane tank’s surface and 14 around the valve. The report made no mention of rust, either through visible inspection 15 or any witness accounts. 16 My next objective was to interview all available known witnesses with pertinent 17 information of the circumstances surrounding the propane explosion. I was surprised the 18 investigation report did not provide witness contact information, other than Mel Lowe 19 and Dee Part, even though the report states that witnesses informed the firefighters on the 20 scene about suspicious activity. Thus, I was unable to confirm the witness’ account that 21 Mel Lowe had been seen driving away from the scene shortly before the explosion. I was 22 also unable to confirm the eyewitness accounts that persons were observed sneaking into 23 the back of the theater shortly before the explosion. 24 In my interview with Mel Lowe on April 4th , I was able to confirm that four 25 propane tanks were delivered to the theater and were stored in a small unventilated room; 26 that a portable heater was operated in the same location; that a young, inexperienced 27 employee connected the propane tanks to a popcorn maker and popcorn warmer; that in 28 addition to the employee’s duty to make the popcorn, the employee also had stage crew 29 duties and security detail; that the back door to the theater was unlocked/open around the 30 time of the explosion; that a former employee/business partner might have a grudge
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1 toward the theater owner; and that no fire suppression devices were located near the 2 storage room. 3 On that same day, I also interviewed Cash Proffitt and examined the delivery 4 receipt for Vintage Theater Productions and the attached Safety Sheet. I was able to 5 confirm the following: the delivery receipt for the propane tanks delivered to Vintage 6 Theater Productions showed that all four tanks had been properly inspected and tested for 7 leaks; that the inspection did not reveal any physical problems with the tanks; that the 8 leak test did not reveal the presence of any leaks on the tanks; that Mel Lowe 9 acknowledged by his/her signature that he/she had been informed of the visible 10 inspection and leak test; that the Company’s employees routinely provide customers with 11 information verbally and in writing for the safe operation of the propane tanks; that Mel 12 Lowe acknowledged by his/her signature that the safety warnings had been provided; 13 and that Pro Propane Products did not connect the propane tanks to the appliances at 14 Vintage. 15 On April 5 th , I interviewed Mel Lowe’s former business partner, Dee Part. Dee 16 had been identified in Investigator Ent’s report as a witness. Dee provided the following 17 information: pranksters have set off firecrackers in the alley behind the theater in the 18 past; Dee harbors some bitterness toward Mel Lowe prompting Dee to retaliate by 19 throwing a brick thrown through Vintage’s Box Office; Dee observed that Pro Propane 20 Products stored the two extra tanks outside behind the theater; Dee observed the propane 21 technician going over a paper with Mel Lowe after delivery of the tanks; Dee raised 22 safety concerns with Mel Lowe regarding the theater, which were largely ignored; Mel 23 Lowe told Dee that he/she did not care about safety. 24 On April 5 th , I also interviewed Joe/Jo Kerr. Kerr confirmed the following: 25 Joe/Jo is 20 years old and inexperienced in the use and operation of propane tanks; Joe/Jo 26 connected the propane tanks to the popcorn warmer and popcorn maker; Joe/Jo reported 27 seeing four liquid petroleum tanks in the room where pre-popped corn was kept warm; 28 Joe/Jo used a wrench and knocked on the propane tank connected to the popcorn warmer 29 to turn the valve to the “on” or “open” position; Joe/Jo had operated the propane tanks 30 and popcorn warmer without incident on a prior day when no wrench was used to bang 31 on the tank or valve; that Joe/Jo had not noticed any odor emitting from the tanks; Joe/Jo
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1 kept the door to the storage room closed on April 1 st when the popcorn was being made; 2 Joe/Jo operated a portable heater, and the propane-fueled popcorn maker and warmers in 3 the same unventilated storage room; Joe/Jo reported hearing a hissing sound with it 4 getting louder like a siren, followed by a small boom and then a larger boom and fireball; 5 that Joe/Jo closed the door to the storage room after hearing the hiss/siren; that Joe/Jo 6 was responsible for making the popcorn and keeping it warm, while also assisting with 7 stage crew duties and handling security detail; and that Joe/Jo did not guard any doors to 8 the theater. 9 Several days later, I learned from Inspector Ent that Joe/Jo Ker had provided 10 additional information regarding his/her observations of rust on the propane tank that 11 exploded. I interviewed Joe/Jo Kerr again and confirmed his/her observations. Kerr 12 stated that he/she did not observe rust on any of the other propane tanks. Kerr stated that 13 he/she did not observe cracks or pitting around the rust. Kerr also stated that despite 14 observing the rust, that he/she did not report the rust to anyone at the time; that he/she 15 used the propane tank, despite the observation of rust, and even hit the tank with a 16 wrench near the rust area. 17 I also reviewed the Fire Inspector Reports, Indiana and Indianapolis Fire and 18 Building Codes, and the State Crimes Lab metallurgy report. I made a physical 19 inspection of the one propane tank that had been preserved after the explosion. The tank 20 was significantly damaged and charred, therefore physical inspection was limited. I also 21 conducted metallurgy, corrosion, and failure analysis tests on the tank. My laboratory 22 tests revealed that the tank’s surface near the valve showed signs of rust, however there 23 was no breach to the tank. My testing also revealed that a brass fitting showed the 24 presence of anhydrous ammonia. The brass fitting was cracked, but due to the mutilated 25 condition of the physical evidence, no definitive conclusion could be reached whether the 26 crack occurred at the time of the explosion or prior to the explosion. 27 Based upon my review of reviewed the three Investigation Reports of Fire 28 Investigator Ray/Rae D. Ent, my interview of witnesses with pertinent knowledge, the 29 examination of the scene and testing of one of the propane tanks involved in the 30 explosion, I have concluded that several factors hindered an effective fire investigation 31 conducted by Investigator Ent and consequently an incorrect cause was assigned to this
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1 fire and explosion. Investigator Ent violated Rule #1 in fire investigation procedure. Ent 2 jumped to a cause, and then tried to massage the evidence to fit this cause. As we say in 3 Texas, he/she’s all hat and no cattle! 4 Investigator Ent rushed the investigation, attempting to establish a cause for the 5 fire in a short time frame before all evidence could be obtained and analyzed. This is 6 evidenced by his/her inconsistent cause determinations in three separate reports. Second, 7 Investigator Ent was restricted in the time available to actually work the fire scene 8 because he/she not only investigated the physical evidence, but he/she also had to 9 interview witnesses as the police officer investigator had not reported to the scene. In 10 addition, Ent was called away from the scene to investigate a potential arson 11 investigation. Third, Investigator Ent did not adequately interview all necessary witnesses 12 and did not demonstrate satisfactory interview techniques. After inspection of the site, 13 Investigator Ent should have reviewed the witness statements of what was observed and 14 heard to determine consistencies and inconsistencies with the physical evidence, keeping 15 in mind that often witness observations may be distorted. A witness’ estimation of time 16 and distance may be skewed. 17 Fourth, Investigator Ent intentionally ignored or excluded key evidence in his/her 18 investigation. Specifically, Ent ignored witness accounts of potential sabotage or pranks. 19 Ent also ignored the stress marks on the propane tank and the testimony of improper 20 operation of the tank by Joe/Jo Kerr. Ent also ignored the improper location of the tanks 21 in an unventilated room containing a portable heater. The fire investigator should never 22 intentionally ignore or exclude any information. Where I come from we just say there’ a 23 big hold in your screen door. It is the investigator’s responsibility to carefully consider 24 all available data and then analyze that information in a meaningful and appropriate way, 25 including its credibility. 26 Finally, we need to deal with the elephant in the room. Ent’s entire investigation 27 was compromised with poor control of the physical evidence and the loss of the propane 28 tank that allegedly was the origin of the initial fire and explosion. Ent deduced that the 29 propane tank with the alleged gas leak that his/her Fire Department lost must have had 30 the same problems that were noted on the tank that was tested. However, in any 31 investigation, if any assumptions are made, they must be consistent with the evidence.
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1 Any parallel drawn between the tank that was analyzed and the tank that allegedly had a 2 gas leak is purely speculative, especially in light of contrary evidence such as the stress 3 marks on the subject tank and the witness account of banging the tank’s valve with a 4 wrench. I cringed when I heard that account. 5 Based upon my education and expertise and upon examination of the physical 6 evidence and the witness statements, as well as the metallurgy tests, it is my conclusion 7 that Vintage Theater Production was negligent, which negligence was the proximate 8 cause of the explosion and resulting damages. Vintage negligently allowed a young, 9 inexperienced employee to connect the propane tanks to the popcorn maker and warmer; 10 Vintage’s employee negligently misused and operated the propane tanks when turning 11 the valve to an “on” or “open” position by using a wrench on the tank and further striking 12 the valve with the wrench. Vintage negligently operated the popcorn warmer and 13 popcorn maker in a small, unventilated room with the door closed. Vintage negligently 14 operated a portable heater in the storage room where the propane tanks were utilized. 15 Vintage improperly stored additional propane tanks indoors in the same area as the 16 propane tanks connected to the appliances. Vintage’s employee negligently closed the 17 door to the unventilated storage area after hearing a hiss and siren sounds and therefore 18 trapped any propane gas from escaping and dissipating into the air. If in fact rust was 19 observed on the propane tank that was connected to the popcorn warmer, Vintage’s 20 employee negligently failed to adhere to safety instructions and discontinue use of the 21 tank. Vintage negligently failed to maintain a suppression device near the storage room 22 to extinguish any flames or fires. Finally, Vintage negligently failed to safeguard its 23 property from vandalism or sabotage by having better security of the premises. 24 It is also my conclusion based upon my expertise and review of all applicable 25 evidence in this case, that the Fire Marshal’s Office contributed to the explosion. The 26 Vintage Theater qualified as having assembly occupancies because the building would be 27 used for 50 or more persons to gather for entertainment. Thus, the Fire Marshal’s 28 Office’s inspection should have inspected the building for concerns regarding exterior 29 violations, such as accumulations of trash or obstructed fire lanes, misuse of electrical or 30 gas equipment, sloppy maintenance practices, or other areas of concern so that these 31 could have been corrected before the facility is re-inspected .
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1 In this case, the Fire Marshal’s Office failed to note a safety violation of gas 2 appliances set up to be operated in a non-ventilated area. The Fire Marshal’s Office 3 failed to note a safety violation of the portable heater to be used in an area where gas 4 appliances would be used. The Fire Marshal’s Office failed to instruct Vintage that a fire 5 suppression device was recommended. 6 I make all of the foregoing conclusions based upon a reasonable degree of 7 scientific certainty. 8 I affirm under penalty of perjury that the foregoing Statement is true and accurate 9 to the best of my belief and knowledge. 10 Dated: October 5, 2012. /s/ Lou M. Nuss . 11
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EXHIBIT 1
Dressing Rooms Rooms Dressing
Prop Room & Storage Storage & Room Prop
Storage
Concessions Concessions Restroom Restroom Restroom Box Office
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EXHIBIT 2
VEHICLE LEASE
THIS LEASE, executed as of March 1, 2011, is by and between Classics Automobile Leasing Limited (“CALL” or “Owner”), and (“Lessee”).
1. Lease. Owner agrees to lease to Lessee its replica of the 1911 Marmon Wasp vehicle (“Vehicle”). 2. Term. This Lease shall be for the term March 11, 2011 – July 11, 2011. 3. Delivery. Owner shall deliver Vehicle to Lessee’s principal place of business on or about March 11, 2011. At the end of the Lease Term, Lessee shall deliver Vehicle to Owner at its place of business. 4. Rent. Lessee agrees to pay to Owner rent for the Vehicle in the amount of $1480 per month, which shall be due and payable in advance on the eleventh day of each calendar month during the Lease Term. If Lessee fails to pay any installment of Rent or any other payment due hereunder when the same becomes due and the failure continues for 10 days, Lessee shall pay to Owner interest on the delinquent payment at the rate of twelve percent (12%) per annum until such payment is made. 5. Title and Ownership. The Vehicle shall at all times remain the property of Owner, and Lessee shall have no right or property interest in Vehicle, but only the right to use same under this Lease. Owner shall at all times retain title to the Vehicle. 6. Use. Lessee shall use the Vehicle in a careful and proper manner. Lessee, at its own cost and expense, shall keep the Vehicle in good repair, condition, and working order. The vehicle shall be stored indoors at all times. 7. Insurance. Lessee shall keep the Vehicle insured against all risks of loss or damage. Lessee agrees that in the event of significant damage to Vehicle, Lessee is responsible for all necessary repairs to restore it to the condition in which it was delivered, or at the option of the Owner, liquidated damages of $250,000. 8. Default. If Lessee fails to pay any rent when the same shall become due and payable, or if Lessee fails to observe, keep or perform any other provisions of this Lease, Owner shall have the right to terminate this lease, to demand and recover all rents due herein, to retake possession of the Vehicle, and/or the right to sue Lessee for all amounts due and owing, plus attorney’s fees.
IN WITNESS HEREOF the parties hereto have executed this agreement as of the day and year first above written.
OWNER: LESSEE: Classics Automobile Leasing Ltd. Vintage Theater Productions, LLC
By: /s/ Otto “Moe” Beal By: /s/ Mel Lowe .
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EXHIBIT 3
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EXHIBIT 4
OUR PROPANE POPCORN POPPER IS DESIGNED AND SOLD FOR COMMERCIAL USE . TO BE OPERATED BY PROPERLY TRAINED AND EXPERIENCED PERSONNEL ONLY . WE SUGGEST THAT INSTALLATION BE MADE ONLY BY A QUALIFIED SERVICE PERSON .
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EXHIBIT 5
POPPITY POP PROPANE POPPER USER MANUAL AND GAS SAFETY PRECAUTIONS
READ this BEFORE operating this appliance:
The Poppity Pop Propane Popper is designed and sold for commercial use.
This appliance is to be operated by properly trained and experienced personnel only. We suggest that installation be made only by a qualified service person.
Instructions on what to do when a user smells gas can be obtained from the local gas supplier. These instructions must be posted in a prominent location where the unit is to be operated.
Do NOT store or use gasoline or other flammable vapors and liquids in the vicinity of this or any other appliance.
Keep this appliance free and clear of combustibles.
Do NOT obstruct the flow of combustion and ventilation airways.
SAFETY PRECAUTIONS Any alterations to this equipment may cause a dangerous situation. NEVER make alterations to the equipment.
Make sure all machine switches are in the OFF position before plugging the equipment into a receptacle.
Always unplug the equipment before cleaning or servicing. Do NOT immerse this appliance in water.
To avoid serious burns, do NOT touch the popper while it is hot.
Gas is safe when used properly, but can be very dangerous when used improperly. We suggest that installation be carefully made by qualified personnel only. Gas companies have competent service personnel to provide safe installation.
Do not use a match or flame to check for leaks - you may cause a fire or explosion!
GAS INSTALLATION
When installing your new Poppity Pop Popper, you must conform with local codes.
When selecting a combustible and noncombustible location for your new Poppity Pop Popper, pay close attention to the installation clearances. The minimum clearance for the rear is 12 inches. The minimum side clearance is 36 inches.
The appliance and its individual shutoff valve must be disconnected from the gas supply piping during pressure testing of the system.
NOTE: Be sure to provide adequate air supply and clearance for air openings into the combustion chamber.
After installation, all gas connections must be checked for leaks with a soap solution.
LIGHTING AND SHUT-DOWN INSTRUCTIONS 1. Turn the gas safety valve handle to the “PILOT” position. 2. Push down safety valve reset button and hold a match to the pilot burner. 3. Turn the gas safety valve handle to the “ON” position. The main burner should now ignite from the pilot burner. 4. Should you want to turn both the pilot and main burner off, pull the gas safety valve and turn the handle to the “OFF” position.
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EXHIBIT 6
PRO PROPANE INVOICE: 031411 March 24, 2011 PRODUCTS, INC.
Pro Propane Products, Inc. 2820 Bluff Road Indianapolis, Indiana P 317-555-5555 F 317-555-5554 www.ppp.com
TO: Vintage Theater Productions, LLC 454 E. Washington Street Indianapolis, IN
Please make all checks payable81 to Pro Propane Products, Inc. Thank you for your business!
EXHIBIT 7
INDIANA STATE FIRE MARSHAL’S OFFICE
CONSENT FORM FOR FIRE/EXPLOSION SCENE EXAMINATION
I, Mel Lowe , have been requested to consent to an examination of my property located at 454 E. Washington St., Indianapolis, Indiana.
This examination is being conducted as part of an investigation of the fire which occurred to this property on April 1, 2011 .
I am the lawful occupant of this property. I have been advised of my constitutional rights to refuse such consent and to require a search warrant be obtained prior to my examination. I have further been advised that if I do consent to an examination, any evidence found as a result of such examination can be seized and used against me in any court of law, and that I may withdraw my consent at any time prior to the conclusion of the examination.
After having been advised of my constitutional rights as state above, I hereby voluntarily waive those rights, and consent to an examination and authorize the Indiana State Fire Marshal’s Office, Indiana State Police, the Indianapolis Fire Department, and Indianapolis Fire Investigation Section of the Indianapolis Fire Department and any other fire official, investigator or law enforcement office participating in the investigation of this fire/explosion incident, to enter and search the property and the surrounding areas of the premises, including any other structures situated on or adjacent to the property to examine and remove evidence relating to fire/explosion.
I specifically give my consent and authorize these persons to inspect and remove any items of evidence which may be related, directly or indirectly, to the investigation of the circumstances and cause of the fire/explosion, and to submit the evidence for examination, analysis, and/or testing. I specifically give my consent and authorize these persons to use an accelerant, cadaver, and/or explosive detection canine to assist and participate in the search of the premise, surrounding areas and other structure and vehicles.
/s/ Mel Lowe (Signed) April 1, 2011 (Date)
Witness: /s/ Ray/Rae D. Ent
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EXHIBIT 8
INDIANAPOLIS FIRE INVESTIGATION SECTION
PRELIMINARY INVESTIGATION FIRE REPORT FORM
FD #: 7 Date of Fire: April 1, 2011 Time of Fire: 18:40
Date Investigation Began: April 1, 2011 Type of Investigation: Cause & Origin
Owner of Property: Vintage Theater Productions, LLC
Address: 454 E. Washington Street, Indianapolis IN
Insurance Company: Underwater Insurance
Coverage: Building: $67,000 Contents: $42,000
Type of Building: Brick & concrete
Who discovered Fire: Owner
Persons killed or injured: one injured
Report made by: R.D. Ent
Examination of Fire Scene: Theater & coffee house by IFD and IFIS
Physical Evidence Obtained and Custody thereof: 4 – 100 lb. propane cylinders
Arrests: None
Summary of Case: Fire was reported to IFD dispatcher at 18:42 as a commercial property explosion and fire located at 454 E. Washington Street. Ladder 7 arrived at 18:48. Squad 14 arrived at 18:50. I was called to investigate the scene and I arrived at 19:45. Upon my arrival, I observed two adjacent commercial buildings; their shared wall had collapsed. I learned that the larger property to the east was a stage theater and the smaller property to the west was a coffee/dessert shop. No persons were trapped by the debris. One person, an employee of the theater, J. Kiernan, was injured and had been taken to IU Health by EMS. At the time of my arrival to the scene, the fire had been extinguished. The explosion and fire extensively damaged the two buildings. In addition to the collapsed shared wall, the roof of the theater was obliterated. Large chunks of concrete had been thrown like projectiles, and parts of the wall had collapsed into a prop room. A car in the prop room had been flattened. There was fire damage throughout the rest of the building.
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I began to investigate the fire for cause and origin. Firefighter Lickt provided information of witness statements that he had obtained. Unfortunately he did not take down contact information, so I was unable to follow-up with these witnesses. Lickt advised that several witnesses had reported seeing a young person setting off fireworks in an adjacent alley and someone sneaking into the back of an open door to the theater within minutes of the time of the explosion. Another witness reported to Lickt that the owner of the Theater Company, Mel Lowe, had suspiciously left the building and had driven off shortly before the explosion. Several witnesses reported hearing two loud booms following in succession, and then witnessed a fireball shoot up high in the sky. At this point, I interrogated Mel Lowe, who seemed visibly distraught. Lowe kept repeating in a murmur “But the show must go on . . .” Lowe explained that he/she had driven off to re-park his/her car in preparation for theatergoers for the Theater Company’s opening night show. I inquired if Lowe had any enemies and he/she said she/she could only think of one –Dee Part who a few months back had been angry enough to throw a brick at Lowe because Part had not been given credit as a co-author for a play. I inquired if there were any flammable or combustible materials located in or near the building. Lowe reported that there was a fully operational car stored in the prop room. Lowe also reported that there were two propane tanks located in a small room near the prop room to make popcorn and keep it warm. Lowe indicated there were two additional filled propane tanks that had been stored outside the theater, and were not in use. I inquired as to whether the propane tanks for the popcorn were in use prior to the explosion. Lowe indicated that he/she assumed so to prepare for the theater patrons, but he/she did not know with certainty. Lowe confirmed that pranksters do set off fireworks in the alley. Lowe had heightened security that evening because it was April Fool’s Day and he/she expected some pranksters to be mischievous. Lowe did not have any further information to assist in the investigation. I then examined the scene. I observed char patterns and V patterns in the small room where the popcorn maker and warmer were located. Directly above the popcorn warmer I noted the chimney effect where the fireball had blown out the ceiling, consistent with witness accounts of a fireball. The physical evidence all pointed to the direction of the propane tank connected to the popcorn warmer as the origin of the fire. I then turned to the cause of the fire. I looked for clues as to how the integrity of the propane tank had been breached and the gas ignited. I searched through the debris but did not locate any firecrackers in the area. It was dark, but I used my flashlight. The examination of the propane tanks was made difficult due to the charring and damage from the explosion. I examined
84 the four tanks in the location of the small storage room. Three of the four tanks had char and V patterns indicative of an explosion from the heat of the fire from the first explosion. Upon closer inspection of the fourth propane tank, the one that was connected to the popcorn warmer, I noticed dents in the surface of the container and stress marks around the valve, indicative of tampering. The physical evidence was consistent with witness accounts of intruders in the theater. Physical evidence: directed D. Lickt to retrieve 4 propane tanks and deliver the tank connected to the popcorn warmer to the Indiana Crimes Lab for failure analysis testing and to deliver the 3 remaining tanks to evidence room.
Initial conclusion: Explosion and fire –origin: propane tank connected to popcorn warmer Cause: Suspicious fire/explosion, possible tampering
/s/ R.D. Ent .
Dated: April 2, 2011
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EXHIBIT 9
INDIANAPOLIS FIRE INVESTIGATION SECTION
INVESTIGATION FIRE REPORT FORM
SUPPLEMENTARY REPORT
Report made by: Insp. R.D. Ent
Case #: 182
Date of Fire: 04/01/11
Location: 454 E. Washington Street, Indianapolis IN
Owner: Vintage Theater Productions, LLC
Date of Report: 04/05/11
Interviewed J. Kier, employee of Vintage Theater Productions, at IU Health Hospital on 04/04/11. Confirmed that he/she started popcorn maker and popcorn warmer at approximately 6:30. He/she had used a wrench to turn the gas valve to “on” and had also hit the tank with the wrench. Kier unaware of safety risks of damaging integrity of LP tank. He/she reported that 10 minutes later when he/she returned to room that he/she heard a hissing sound, he/she attempted to close the gas valve, and so as to soften the blow, he/she shut the door to the storage room. Kier also confirmed that he/she had security detail on April 1 st . He/she observed no intruders in building.
Conclusion: Fire/Explosion – Origin: Propane tank connected to popcorn warmer Cause: misuse of operation of tank and adherence to safety requirements
/s/ R.D. Ent .
Dated: April 5, 2011
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EXHIBIT 10
INDIANA STATE POLICE CRIME LABORATORY 502 State Office Building Indianapolis, IN 46204
Officer: IFIS - Ent County of Occurrence: Marion Type of Investigation: Explosion Victim: One injury/Property Damage Suspects: None Case #: IFIS #630 Date of Test: April 18, 2011
Failure Analysis tests conducted on one 40 pound propane cylinder and its components by the undersigned.
Results: corrosion of brass fitting due to contact with anhydrous ammonia. Corrosion caused cracking and the structural deterioration to propane valve is significant. Significant charring. The undersigned was not able to make a determination if the corrosive rust was visible prior to explosion.
I.M. Shere, PhD State Crime Lab
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EXHIBIT 11
INDIANAPOLIS FIRE INVESTIGATION SECTION
FINAL INVESTIGATION FIRE REPORT FORM
FD #: 7 Date of Fire: April 1, 2011 Time of Fire: 18:40
Date Investigation Began: April 1, 2011 Type of Investigation: Cause & Origin
Owner of Property: Vintage Theater Productions, LLC
Address: 434 E. Washington Street, Indianapolis IN
Insurance Company: Underwater Insurance
Coverage: Building: $69,000 Contents: $292,000
Type of Building: Brick & concrete
Who discovered Fire: Owner, Vintage Theater - Mel Lowe
Persons killed or injured: one injured
Report made by: R.D. Ent
Examination of Fire Scene: Theater & coffee house by IFD and IFIS
Physical Evidence Obtained and Custody thereof: 4 – 100 lb. propane cylinders
Arrests: None
Summary of Case: Refer to prior reports by this investigator dated April 2, 2011 and April 5, 2011. Follow-up interview with Kerr on April 7, 2011. Kerr remembers that rust was present around the valve of the propane tank prior to operation.
April 21, 2011 - Received Lab Report from Crime Lab. Propane tank tested did not have stress marks near valve. Discovered that tank tested was a back-up tank stored in the same location. Lab’s Failure Analysis Report attached. Report shows rust detected near valve of tank. Testing shows corrosion to brass fitting for the valve to the propane tank causing it to crack. Significant structural deterioration. Anhydrous ammonia present on brass fitting causing corrosion. Corrosion of propane tank tested is consistent with testimony of physical observation by Kerr of tank that first exploded.
Conclusion: Fire Explosion Origin: Propane tank connected to popcorn maker Cause: failure of integrity of propane tank due to corrosion causing gas leak. Rust visible; Propane Company failed to properly inspect
Dated: April 25, 2011 /s/ R.D. Ent .
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EXHIBIT 12
PRO PROPANE PRODUCTS, INC. 2820 Bluff Road Indianapolis, Indiana
TO: March 24, 2011 Vintage Theater Productions, LLC REF#031411 454 E. Washington Street Indianapolis, IN
DELIVERY SLIP
Container Verification
Size Serial # Date of Recert. Condition Relief Valve Leak Check Location
40# MSR0922 091010 Good V V Storage room
40# CDH1015 012410 OK repaint V V Storage room
40# KED0820 013111 Good V V Outdoors
40# AMW0506 041810 OK repaint V V Outdoors
Note: The inspection does not cover latent defects or internal defects. This inspection ONLY covers conditions of propane cylinders that are visible to the technician.
Please initial your acknowledgement:
ML .I reviewed the attached Safety Sheet, and will keep it located near the appliance. ML .I observed the technician making the visible checks of the tanks and relief valve, and perform the leak test. ML .I have been informed that generally a gas leak can be detected by a foul odor. I understand there could still be a leak even if that smell is not detected if the odorant has faded or I have physical conditions that prevent my ability to smell the odor. ML .I have been provided with instructions by the technician on how to connect the propane cylinder. . I am satisfied with the service work performed.
Remarks: I am dissatisfied with the delay in delivery of these four propane tanks. It took ten days to deliver the propane tanks. The service technician had a poor attitude. Your Company does not seem customer service oriented. I may consider looking for alternative propane dealers.
Customer Signature:
/s/ Mel Lowe .
Technician Signature: /s/ I. Rush .
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EXHIBIT 13
PROPANE TANKS CAN BE DANGEROUS FOLLOW THESE SAFETY RULES!
WARNING: DO NOT TRY TO REPAIR YOUR GAS SYSTEM, APPLIANCES, OR TAMPER WITH THE CONTROL VALVES ON YOUR GAS APPLIANCES. MANY ACCIDENTS ARE CAUSED BY UNQUALIFIED PEOPLE TAMPERING WITH PROPANE CYLINDERS.
WARNING: Do not smoke or have any ignition source, such as flames or spark-producing electrical tools, in the area while handling or transporting cylinders.
Improper use and handling of portable propane cylinders can be very dangerous. FOLLOW THESE SAFETY PRECAUTIONS ALWAYS!
Storage - Do NOT store cylinders indoors or in an enclosed area. Store propane cylinders outside only. Secure cylinders in an upright position when stored, used, or transported.
• Shut-off Valve - Make sure shut-off valve is firmly closed when the appliance is not in use. • Keep away from heat - Do NOT place cylinder near any heat source. The heat builds up pressure inside the cylinder, and may cause the pressure relief valve to release propane. • Leaks - Always be alert for the smell of propane when you are in an area where cylinders are used or stored. If you smell propane, no matter how strong or weak the smell, treat it as a serious gas leak. A gas leak may be indicated if you hear a hissing sound. • Odor Fade – Sometimes the smell of gas can fade. A leak can exist even if there is no smell. Physical conditions can prevent you from smelling a leak, such as colds, allergies, certain medications, tobacco, alcohol or drugs. • Rusted, Damaged, Cylinders -DO NOT USE cylinders that are visibly rusted, damaged, or out-of-date. Check with your propane dealer for questions about cylinder condition.
CONNECTING YOUR CYLINDER:
CAUTION: Before connecting a cylinder, read all the appliance instructions and the warning label on the cylinder.
• Position the cylinder in an upright position. • Do not kink or damage any hose or tubing between the cylinder valve and the regulator. • Using a wrench to tighten the regulator inlet connection nut counter-clockwise into the cylinder valve. The nut has a left-hand (reverse) thread, which requires you to tighten it in the counter clockwise direction. Do not over-tighten.
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EXHIBIT 14
CURRICULUM VITAE Of LOU M. NUSS Education: B.S. in Civil Engineering - University of California - Berkley (1977-1981) M.S. Chemistry - University of Texas – Austin (1982-1984) Ph.D. Physical Chemistry – Massachusetts Institute of Technology (1984-1988)
Licensure and Certification: Certified Fire & Explosion Investigator (C.F.E.I.) NPGA CETP Certification ASM Accredited - Failure Analysis ASM Accredited - Metallurgy NACE Accredited - Corrosion DOT Certified - Hazardous Materials ASCE – Civil Engineering Certification
Experience: Sparks, Burns & Hayes Engineering - Fire & Explosion Investigator/ Consultant 1989-present Chemical and Civil Engineer specializing in the field of fire, arson and explosion investigation, origin and cause determination and all aspects thereof. Expertise in natural and propane gas explosions, failure analysis, corrosion and metallurgy testing, and carbon monoxide poisoning. Court qualified.
Wonder Chemical Company - Chemical Engineer 1988-1989 Compiled procedures for processes and emergencies. Safety Improvements - Technical Advisor
Professional Affiliations: National Association of Fire Investigators National Fire Protection Association National Propane Gas Association American Society of Metals International National Association of Corrosion Engineers International Association of Arson Investigators American Society of Civil Engineers
Lectures (too many to list, select list only): “Interviewing Techniques in Fire and Explosion Investigations” – May, 2012 “Advanced Fire and Explosion Investigation Seminar” – February, 2012 Defense Research Institute Fire and Casualty Seminar – 2011 “Explosion and Arson Investigations” – 2010
Publications (selected few; too many to list): “Inspecting, Re-qualifying, Filling, and Transporting Small Propane Containers ” Journal of Fire & Explosion Investigations March, 2011 “Location, Location, Location –Propane Tank Storage ” Good Housekeeping, September, 2010 “Can You Smell It ?” Reader’s Digest June, 2010
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