Baughman v. Cosler

• Decision Date: 15 September 1969
• Docket Number: No. 22800,22800
• Citation: 459 P.2d 294,169 Colo. 534
• Parties: Lois Blossom BAUGHMAN, Robert Irvin Baughman, Theodore Kenneth Baughman, Mildred Beryl Baughman Wilkenson, Frederick Wayne Baughman, Dorothy Lee Baughman, Shirley Ann Baughman Jones, Ruth Marie Baughman and Mary Elizabeth Baughman Darnell, Individually and as Partners, Plaintiffs in Error, v. Albert L. COSLER, Defendant in Error.
• Court: Colorado Supreme Court

Page 294

459 P.2d 294

169 Colo. 534

Lois Blossom BAUGHMAN, Robert Irvin Baughman, Theodore

Kenneth Baughman, Mildred Beryl Baughman Wilkenson,

Frederick Wayne Baughman, Dorothy Lee Baughman, Shirley Ann

Baughman Jones, Ruth Marie Baughman and Mary Elizabeth

Baughman Darnell, Individually and as Partners, Plaintiffs in Error, v. Albert L. COSLER, Defendant in Error.

No. 22800.

Supreme Court of Colorado, In Department.

Sept. 15, 1969.

Rehearing Denied Oct. 20, 1969.

Wormwood, Wolvington, Renner & Dosh, Pual D. Renner, Denver, for plaintiffs in error.

Haynie, Golden & Mumby, James Golden, Grand Junction, for defendant in error.

LEE, Justice.

Plaintiffs in error, Lois Blossom Baughman, Robert Irvin Baughman, Theodore Kenneth Baughman, Mildred Beryl Baughman Wilkenson, Frederick Wayne Baughman, Dorothy Lee Baughman, Shirley Ann Baughman Jones, Ruth Marie Baughman, and Mary Elizabeth Baughman Darnell, were defendants in the trial court and by this writ of error seek to reverse and adverse judgment in the amount of $52,000 entered upon a jury verdict against them in the district court of Mesa County. They will be collectively referred to as 'defendants' or 'Baughmans.'

Defendant in error, Albert L. Cosler, was plaintiff in the trial court and will be referred to as 'plaintiff' or as 'Cosler.'

A somewhat detailed recitation of the factual background is necessary for a full understanding of the contentions of the parties. The controversy arose out of an explosion in which Cosler was severely injured and for which he claimed damages from the Baughmans.

Defendants were the owners of a one-story brick veneer building situated on the south side of West Main Street in Grand Junction. The components of this building consisted of five apartments, numbered from the east to the west, in the westerly half of the building, and a grocery and market in the easterly half of the building. Plaintiff was the tenant of apartment No. 4 at the time of the explosion hereinafter described.

Defendants also owned the property known as 106 South Spruce Street, which was situated around the corner south from the apartment building. This property consisted of a frame residence and side yard which abutted the apartment building site.

Defendants inherited these properties, among others, from their grandfather who had created a trust, naming the defendants as beneficiaries, and their father, Irvin Baughman, as trustee of the various trust properties. Irvin Baughman, as such trustee, was in control of the properties from July 22, 1942, until July 9, 1959, when title was conveyed to the defendants. At the time of the explosion, June 24, 1964, defendants were the record owners and Robert Irvin Baughman and Theodore Kenneth Baughman were the apartment managers under a power of attorney.

The apartment and store building had been constructed by defendants' grandfather in 1939. A butane gas system had been installed for servicing of the various units with butane fuel. This system consisted of an underground tank buried approximately three to four feet below the surface of the ground in the yard at 106 South Spruce Street, located to the south and rear of the apartment building. Mounted on top of the tank was a well or control box which was approximately twelve to fourteen inches in diameter and which extended vertically down from the surface of the ground to the top of the tank. In it were pressure and capacity gauges and control valves which regulated the flow of gas from the tank into the service lines. To manipulate the control valve required one to reach down approximately twenty-eight to thirty inches. The top of the well, or control box, was covered with an unlocked metal cap, easily removable. The butane gas service line extended underground from the tank, northerly through the foundation wall into the crawl space beneath the floor of the apartment building, where it then attached to a 1 3/4-inch distribution pipe which ran easterly underneath the five apartment units. Off the pipe were 1/2-inch T's, from which 1/2-inch copper service lines extended upward through the floor into each apartment for connection to the applicances.

The only access to the crawl space was through a small trapdoor located in the floor of a utility room on the west end of the building. One could not see the full length of the distribution pipe, or the condition of the various T's, from the trapdoor area, as the pipe passed through foundation partitions supporting the apartments units.

Defendants became the owners of the apartment building in 1959. Six years prior thereto, when natural gas had become available to the Grand Junction area, defendants' father, who was then trustee and in control of the apartments, converted the gas service from butane to natural gas. The butane pipe system was disconnected from the appliances and a new natural gas service was brought in from the attic area above the apartments. Each of the butane service line T's was disconnected and plugged, with the exception of two T's, one under apartment No. 1 and one under apartment No. 4 (Cosler's apartment). There was no explanation as to who did the actual disconnection work or why the two T's were left unplugged. The effect was that, if there were gas in the butane tank and if the control valve were open, the gas would escape through the two unplugged T's into the crawl space underneath the apartments. We note here that in the foundation wall under each of the apartments there were two vents, one on the front side and the other on the rear side, through which air might normally circulate and leaking gas be diffused.

A fireman employed by the city of Grand Junction was assigned the duty of advising property owners how to dispose of the liquid petroleum gas remaining in abandoned systems. Among those contacted was defendants' father. One of the recommended methods of disposal was to burn off the gas and fill the tanks with water. This fireman later observed defendants' father burning off the gas from the tank in question. Defendant Robert Baughman testified it was his belief that the butane gas had been disposed of in this manner.

None of the defendants participated in any way in the work of changing the gas service from a butane to a natural gas system, nor was there any evidence whatsoever that they were aware of any of the details involved in the changeover work.

On June 24, 1964, at approximately 7:30 p.m., a violent explosion occurred which virtually demolished the building. Plaintiff was in his apartment at the time and suffered severe injuries, eventually necessitating the amputation of his left leg at the knee.

An examination of the tank capacity and pressure gauges immediately after the explosion indicated to the investigating fire chief that the tank was approximately half full of butane gas to forty pounds pressure. He found the control valve to be open approximately one-fourth of an inch and he heard intermittent hissings sounds from leaking gas. The well or control box contained sticks and debris and the gauges themselves were covered with cobwebs and dust. An odor of gas was present, both in the area of plaintiff's apartment and in the area of apartmet No. 1.

An expert witness, a civil engineer specializing in gas investigations and gas systems design work, conducted a test two days after the explosion and found that when the control valve was opened gas escaped through the unplugged T's under apartments No. 1 and No. 4 (Cosler's apartment). He further testified that from the accumulated rust and corrosion the open T's had been in that condition for at least five years, or longer.

The tenant who occupied apartment No. 5 observed that on the day of the explosion the vents on the south wall were closed, covered with pasteboard. It was his belief that the children who lived at 106 South Spruce Street had closed the vents to prevent a litter of kittens from going under the apartment building. This was not known to the Baughmans. The only evidence bearing upon this matter was from the tenant, who had observed the open vents on many occasions, but saw them to be closed on the day of the explosion.

Cosler's amended complaint alleged in essence the following: that defendants knew or should have known, by the exercise of reasonable care, of the condition of the butane tank, and its connections which were under the premises occupied by Cosler, and that, under these circumstances, the possibility existed that injury could have been inflicted upon...