Bennett v. Greeley Gas Co., 96CA1347

• Decision Date: 11 June 1998
• Docket Number: No. 96CA1347,96CA1347
• Citation: 969 P.2d 754
• Parties: 98 CJ C.A.R. 3044 Nancy BENNETT; Deborah Robinson; Harvey Robinson; Joann Baker Paul; Catherine Lykken; Jack Morrison; Rustic Repose, Inc., and Goldfarb/Colorado, Inc., Plaintiffs-Appellees, v. GREELEY GAS COMPANY, a division of Atmos Energy Corporation, Defendant-Appellant, and U.S. West Communications, Inc., Defendant.
• Court: Colorado Court of Appeals

Page 754

969 P.2d 754

98 CJ C.A.R. 3044

Nancy BENNETT; Deborah Robinson; Harvey Robinson; Joann Baker Paul; Catherine Lykken; Jack Morrison Rustic Repose, Inc., and Goldfarb/Colorado, Inc. Plaintiffs-Appellees, v. GREELEY GAS COMPANY, a division of Atmos Energy Corporation Defendant-Appellant and U.S. West Communications, Inc., Defendant.

No. 96CA1347.

Colorado Court of Appeals, Div II.

June 11, 1998.

Rehearing Denied July 30, 1998.

Certiorari Denied Jan. 11, 1999.

Burg & Eldredge, P.C., Michael S. Burg, David P. Hersh, Diane Vaksdal Smith, Rosemary Orsini, Englewood, for Plaintiffs-Appellees.

Holland & Hart LLP, Joseph W. Halpern, Timothy M. Rastello, Stephen G. Masciocchi, Denver; Kerber & Sasz, L.L.P., William L. Sasz, David W. Kerber, Englewood, for Defendant-Appellant.

BRIGGS, Judge.

In these consolidated negligence actions, defendant, Greeley Gas Company (Greeley Gas), appeals the judgments for damages entered on jury verdicts against it and in favor of plaintiffs, Nancy Bennett; Deborah Robinson; Harvey Robinson; Joann Baker Paul; Catherine Lykken; Jack Morrison; Rustic Repose, Inc.; and Goldfarb/Colorado, Inc. We reverse and remand for a new trial.

In 1994 an underground gas pipeline fractured. Natural gas escaped and migrated along the pipeline into a commercial building in the heart of the mountain town of Steamboat Springs. A basement hot-water heater ignited the gas. The explosion and resulting fire demolished the building. Many people were injured, some severely. Gas service was cut off to over half the town's residents.

Evidence introduced at trial indicated the cause of the fracture was damage to the pipeline eighteen years earlier, when it had been gouged during excavation activities conducted by A.A. Cox Construction (contractor). Defendant U.S. West had hired the contractor to lay telephone line.

The damaged pipeline had been repaired by wrapping it in field tape. It was undisputed the pipeline should have been replaced.

Plaintiffs brought suits against Greeley Gas and U.S. West. The principal factual dispute at trial was whether the repair in 1976 had been made by employees of the contractor, for whom U.S. West was held legally responsible, or of Greeley Gas.

The jury awarded a total of $2.5 million in compensatory damages solely against Greeley Gas. It found both Greeley Gas and U.S. West negligent but further found that the negligence of Greeley Gas was the sole legal cause of plaintiffs' damages. The jury awarded punitive damages against Greeley Gas in the same amounts as the awards of compensatory damages.

On appeal, Greeley Gas named both plaintiffs and U.S. West as parties. U.S. West filed a motion seeking to be dismissed, asserting that Greeley Gas was not a party to the claims between plaintiffs and U.S. West and thus had no standing to designate U.S. West as a party on appeal. It further argued that Greeley Gas would not be prejudiced by its dismissal from the appeal because Greeley Gas on retrial could designate U.S. West as a nonparty at fault.

In response, Greeley Gas asserted it had standing because it was a party aggrieved by the judgment imposing liability solely on it. Plaintiffs, in their response, stated they were not themselves appealing because the trial court had committed no errors. However, plaintiffs disagreed with the contention that, in the event of a retrial, Greeley Gas could designate U.S. West as a nonparty at fault.

Another division of this court granted the motion of U.S. West to be dismissed as a party in this appeal. That ruling is not before us. Thus, at this juncture, only Greeley Gas and plaintiffs remain as parties in this appeal.

I.

Greeley Gas first contends the trial court erred in three rulings admitting evidence. We conclude that errors in two of the rulings require a new trial.

The trial court permitted plaintiffs to admit evidence that a federal safety regulation, 49 C.F.R. 192.614, had been enacted in 1982, twelve years before the explosion but six years after the negligent repair, as well as evidence indicating Greeley Gas had been found in violation of the regulation five years after its enactment. The court also permitted plaintiffs to introduce evidence indicating that Greeley Gas had failed to implement recommendations made by the Public Utilities Commission (PUC) after the 1994 explosion.

Initially, we note that plaintiffs in a footnote to their answer brief have asserted, without citation of authority, that Greeley Gas "may have" waived its evidentiary arguments on appeal by failing to object contemporaneously when the evidence was introduced. However, Greeley Gas had filed motions in limine on each point, and the supreme court has concluded that such a filing is sufficient to preserve an objection to evidence. Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo.1986); see also People v. Pratt, 759 P.2d 676 (Colo.1988); but cf. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244 (Colo.1996) (review of a denial of a motion for summary judgment, even when based on a point of law, is not preserved for appeal unless renewed at trial).

The trial court did at one point appear to be reserving its ruling because of doubt about what the evidence might show. However, it later concluded, based on offers of proof, that the evidence would be admitted. The court stated that its ruling did not prevent Greeley Gas from again raising the issues if the evidence did not come in as anticipated, but it did not require Greeley Gas to do so. In these circumstances, we conclude the issues are properly preserved for appeal.

A.

The Department of Transportation in 1982 promulgated a regulation, 49 C.F.R. 192.614, that provided in pertinent part:

(a) [E]ach operator of a buried pipeline shall carry out in accordance with this section a written program to prevent damage to ... pipeline by excavation activities....

(b) The damage prevention program required by paragraph (a) of this section must, at a minimum:

....

(6) Provide as follows for inspection of pipeline that an operator has reason to believe could be damaged by excavation activities:

(i) The inspection must be done as frequently as necessary during and after the activities to verify the integrity of the pipeline....

In its motion in limine before trial, Greeley Gas sought to exclude any evidence relating to the regulation, including evidence indicating Greeley Gas was not in compliance with the regulation in 1987. Greeley Gas argued the evidence was irrelevant and unfairly prejudicial because the regulation was enacted in 1982, some six years after the negligent repair, and its alleged noncompliance was cited in 1987, another five years later.

In response, plaintiffs asserted the regulation enacted in 1982 evidenced minimum standards of conduct that Greeley Gas, in exercising the highest degree of care, should have been following in 1976. They further asserted the jury could find that, if Greeley Gas had established and followed the 1982 safety standards of conduct after their promulgation, the damage to the pipe could have been discovered before the 1994 explosion. In addition, the jury could reasonably infer from the fact that Greeley Gas had not promulgated and enforced a written program in 1987, including inspection requirements, it probably was not enforcing safety standards, including inspection requirements, in effect in 1976.

Finally, plaintiffs argued the evidence was admissible in support of their claims for punitive damages. This included not only the jury's initial awards of punitive damages, but also the court's subsequent determination, pursuant to its statutory authority under 13-21-102, C.R.S.1997, whether to increase any punitive damages awarded by the jury.

None of the parties cited any authority in support of their positions. The trial court ultimately accepted the argument that the evidence was admissible because the jury could infer from noncompliance in 1987 that Greeley Gas had probably failed to follow inspection standards in effect in 1976. The court also held the evidence was admissible because the conduct of Greeley Gas during the pendency of the action was relevant to the court's statutory duty to determine whether to increase any punitive damage award.

On appeal, Greeley Gas again challenges the court's admission of evidence relating to the regulation. Unlike its argument at trial, Greeley Gas on appeal makes separate arguments regarding admission of evidence pertaining to the regulation itself and to its alleged violation. We address each argument in turn.

1.

The first contention of Greeley Gas is that evidence of the regulation itself was not admissible. We agree.

Safety codes and regulations are admissible when offered in support of expert testimony and when introduced as objective safety standards generally recognized and accepted as such in the type of industry involved. See Miller v. Solaglas California, Inc., 870 P.2d 559 (Colo.App.1993). However, at least absent evidence that a safety code or regulation was intended to apply retroactively, it has generally been held that evidence concerning them is not admissible to establish the standard of care at a time before their enactment. See Kedar v. Public Service Co., 709 P.2d 15 (Colo.App.1985); see also Dunkle v. West Penn Power Co., 400 Pa.Super. 334, 583 A.2d 814, 816 (1990) ( "As a general rule, subsequently enacted regulations are irrelevant to establish an earlier duty of care."); White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977); Ball v. New Jersey Bell Telephone Co., 207 N.J.Super. 100, 504 A.2d 29 (1986); Trimarco v. Klein, 441 N.Y.S.2d 62, 82 A.D.2d 20 (1981), aff'd in relevant part, rev'd on other grounds, 56 N.Y.2d 98, 451 N.Y.S.2d 52, 436 N.E.2d 502 (1982); see generally D. Feld, Annotation, Admissibility of Safety Codes or Standards, 58 A.L.R.3d 148, 155 (1974) ("In a few cases where safety codes or standards have been held inadmissible, courts, without...