Apodaca v. AAA Gas Co.

• Decision Date: 11 March 2003
• Docket Number: No. 946., No. 21, No. 22, No. 087
• Citation: 73 P.3d 215,134 N.M. 77,2003 NMCA 85
• Parties: Gilbert and Barbara APODACA; and Jeffrey and Larissa Velasquez, Plaintiffs-Appellants/Cross-Appellees, v. AAA GAS COMPANY, a New Mexico corporation, LP Gas Equipment Inc., a New Mexico corporation, Defendants-Appellees/Cross-Appellants.
• Court: Court of Appeals of New Mexico

73 P.3d 215

134 N.M. 77

2003 NMCA 85

Gilbert and Barbara APODACA; and Jeffrey and Larissa Velasquez, Plaintiffs-Appellants/Cross-Appellees, v.AAA GAS COMPANY, a New Mexico corporation, LP Gas Equipment Inc., a New Mexico corporation, Defendants-Appellees/Cross-Appellants.

Nos. 22,087, 21,946.

Court of Appeals of New Mexico.

March 11, 2003.

Certiorari Granted May 28, 2003.

Ron Morgan, Rowena Averion-Mahloch, Mark Goodman, Morgan Law Office, Ltd., Michael B. Browde, Albuquerque, for Appellants/Cross-Appellees.

H. Brook Laskey, Gary L. Gordon, Alice Tomlinson Lorenz, Miller, Stratvert & Torgerson, P.A., Charles A. Pharris, Thomas C. Bird, Robert J. Perovich, Keleher & McLeod, P.A., Albuquerque, for Appellees/Cross-Appellants.

Certiorari Granted, No. 28,046, May 28, 2003.

OPINION

BUSTAMANTE, J.

{1} This is an appeal from a civil jury verdict in favor of Defendants denying Plaintiffs damages for personal injury and property loss.Plaintiffs raise seven points of error: (1) refusing a jury instruction for ultrahazardous activity; (2) instructing the jury that the Liquefied Petroleum Gases Handbook of the National Fire Protection AssociationNo. 58 (NFPA 58) applied to Plaintiffs and their employer, Cañada, Inc.(Cañada); (3) allowing the admission of a hospital statement; (4) denying their motions to amend complaint against LP Gas Equipment, Inc.(LPGE); (5) denying separate peremptory challenges for Plaintiff-spouses; (6) excluding expert testimony pertaining to loss of enjoyment of life; and (7) dismissing punitive damages claim against LPGE.

{2} On cross-appeal, DefendantAAA Gas Company(AAA Gas) objects to the trial court's rulings: (1) allowing the jury to consider punitive damages, (2) allowing the jury to consider strict liability for nondelegable duty, and (3) denying them costs.¹

{3}We affirm the judgment of the trial court as to Plaintiffs' points one through five, as well as its denial of costs.Because we affirm, we do not reach Plaintiffs' expert testimony and punitive damages issues or the jury instruction issues raised by AAA Gas.

FACTS

{4} On July 29, 1997, PlaintiffsGilbert Apodaca and Jeffrey Velasquez suffered serious personal injuries when a propane tank they were repairing leaked liquid propane and exploded.A third mechanic, Joe Salazar, suffered severe injuries which led to his death on August 14, 1997.Apodaca, Velasquez, and Salazar were employed as mechanics by Cañada, a repair shop that advertised itself as specializing in the repair of utility equipment, including liquid propane delivery trucks.AAA Gas, a seller of propane, owned the liquid propane gas and delivery truck involved in the explosion.LPGE, a distributor of liquid propane gas equipment, sold the internal cargo tank valve at issue, as a distributor of Fisher Controls, Inc.(Fisher Controls).

{5} On July 14, 1997, AAA Gas delivered one of its delivery trucks to Cañada for repair of a belly valve that would not close.Cañada requested AAA Gas to pick up the truck to empty the propane from the tank so the valve and pump could be replaced.After retrieving and emptying the truck, it was returned to Cañada, and Cañada performed certain repairs.AAA Gas retrieved the truck on July 25 and after testing the system, discovered that the tank still would not pump propane.After several attempts to troubleshoot the problem, AAA Gas called Cañada, which instructed AAA Gas to bring the truck back to the shop a third time.

{6} At trial the parties disputed whether AAA Gas informed Cañada that there was propane in the truck when it arrived at Cañada's garage the third time.However, it was undisputed that the truck was about eighty percent full of propane.Salazar moved the loaded truck into the garage for repair.When Salazar loosened the bolts under the pump, there was a sudden release of liquid propane.The propane reached an ignition source after Salazar and Apodaca made their way to the back of the truck.Salazar died of his injuries, Apodaca suffered severe third degree burns to twenty percent of his body, and Velasquez suffered second degree "flash" burns to over thirteen percent of his body.

PROCEEDINGS

{7} Salazar's estate filed a complaint for wrongful death in Valencia County.Jarner ex rel. Salazar v. AAA GasCo., No. VA-97-1403-CV.Plaintiffs intervened in the Valencia County suit on May 25, 1999.However, Plaintiffs' claims were dismissed without prejudice for improper venue on February 21, 2000, after Salazar's claims were settled and his suit against Defendants was dismissed.

{8}Plaintiffs filed the present action in Bernalillo County.The complaint alleged negligence and products liability against AAA Gas, LPGE, and Fisher Controls.Specifically, Plaintiffs alleged AAA Gas was directly and vicariously liable under theories of common law negligence, negligence per se, and products liability for failing to remove propane from the truck before delivering it for repair.Plaintiffs alleged LPGE and Fisher Controls were negligent or strictly liable for providing a defective valve.In addition to compensatory and punitive damages sought by Apodaca and Velasquez, their wives sought damages for loss of consortium and spousal services.

{9} Some three months later, on May 15, 2000, Plaintiffs moved to amend their complaint against LPGE after discovering that Fisher Controls had not supplied the valve involved in the explosion.The amended complaint alleged LPGE had violated the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -22 (1967, as amended through 1999), by misrepresenting the valve actually involved as new and unused.The amended complaint also alleged AAA Gas had created an ultrahazardous condition by delivering the truck for repair loaded with propane in violation of the Albuquerque Fire Code, which prohibits the repair of a cargo tank system inside a building unless all liquid propane gas is removed and the system purged.A supplemental motion to amend complaint was filed on May 22, 2000, to detail claims against LPGE and withdraw allegations against Fisher Controls.

{10}The trial court dismissed Fisher Controls with prejudice on May 26, 2000, as a result of a settlement agreement with Plaintiffs and, on June 6, 2000, the trial court then denied Plaintiffs' motions to amend.Plaintiffs in turn filed a second complaint against LPGE in the Bernalillo County District Court on June 28, 2000, essentially restating the allegations contained in their motions to amend—that LPGE misrepresented the valve involved as new and unused, and charging LPGE with one count for the UPA violation and one count of misrepresentation.On February 6, 2001, the trial court dismissed this second complaint on summary judgment in favor of LPGE on res judicata and/or collateral estoppel grounds.Plaintiffs timely appealed that decision.

{11} The first complaint was tried before a jury of twelve.At the conclusion, the jury answered special interrogatories in favor of Defendants on all theories of liability.The jury answered "no" to whether AAA Gas was negligent and "no" to whether AAA Gas failed to take reasonable precautions necessary to avoid harm.The jury also answered "no" to whether LPGE was negligent and "no" to whether LPGE was liable under products liability.The trial court entered a judgment on the verdict and denied Plaintiffs' motion for a new trial.Plaintiffs timely filed this appeal, which is a consolidation of the two cases filed in Bernalillo County District Court.

{12}We review each of the above issues in the order presented on appeal.

I.Ultrahazardous Activity

{13}Plaintiffs contend that the trial court erred in refusing to instruct the jury on strict liability for ultrahazardous activity.SeeUJI 13-1627 NMRA 2003.Instead of submitting Plaintiffs' requested instruction 13-1627, the court instructed the jury under UJI 13-1601 NMRA 2003(negligence) and UJI 13-1634 NMRA 2003(strict liability for nondelegable duties).These instructions, Plaintiffs argue, were inadequate and confusing because they are theories based in negligence rather than strict liability.

{14}Plaintiffs argue that AAA Gas alone had special responsibilities for any hazard arising from the extremely volatile and explosive nature of the propane.Whereas AAA Gas was licensed, trained in the safe handling and storage of propane gas, and specifically knowledgeable in the safety requirements for having their trucks repaired in a mechanics garage, Plaintiffs correctly note that they were not required to be licensed and assert they had no special training in the safe handling of propane gas.Plaintiffs characterize the ultrahazardous activity as the "delivery of a loaded truck for [mechanical] repairs to those not expert and trained in handling l.p. gas . . . [at a repair shop located in the heart of Albuquerque]."

Standard of Review

{15} The question whether an activity is ultrahazardous or "abnormally dangerous" is determined by the court.Restatement (Second) of Torts§ 520 cmt.1 (1977)(hereinafter Restatement).Abnormally dangerous activity as referred to in Restatement (Second) of Torts§§ 519-20(1977) is recognized to be the same as what was previously referred to as "ultrahazardous activity" in the first edition of Restatement of Torts§§ 519-20(1938).Saiz v. Belen Sch. Dist.,113 N.M. 387, 397 n. 8, 827 P.2d 102, 112 n. 8(1992).This inquiry is different from questions of negligence, or the failure to use reasonable care, which is a question for the jury.Restatement cmt.1."[S]trict liability . . . involves a characterization of the defendant's activity or enterprise itself, and a decision as to whether he is free to conduct it at all without becoming subject to liability for the harm that ensues even though he has used all reasonable care."Id.Thus, the determination of whether an activity is abnormally dangerous is a question of law for a court to decide.SeeFernandez v. Walgreen Hastings Co.,1998-NMSC-039...