Ekberg v. Greene, 76-448
| Decision Date | 30 June 1977 |
| Docket Number | No. 76-448,76-448 |
| Parties | Margaret M. EKBERG, Individually and as mother and natural guardian of Michael Dale Ekberg, a minor, and Raul and Wilma Talamantes, Individually and as parents and natural guardians of Donald Wayne Talamantes, a minor, Plaintiffs-Appellees, v. Kenneth C. GREENE, Individually and doing business as Greene's Fina Service, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Kenneth N. Kripke, Denver, for plaintiffs-appellees.
Madden & Strate, P. C., William J. Madden, Denver, for defendant-appellant.
Plaintiffs initiated this action to recover damages for burns received by Michael Ekberg and Donald Talamantes from a flash fire emanating from the restroom at defendant's service station. Judgment was entered upon a jury verdict for plaintiffs and defendant appeals. We reverse.
The record reflects the following sequence of events. Defendant had operated the service station in question for approximately 25 years prior to the flash fire. On November 16, 1974, there was only one operative restroom at the station. Access to the restroom was available through a door located on the side of the station building. For approximately 10 years the restroom had been heated by a natural gas heater during the winter months, and approximately two weeks before the fire, defendant had reinstalled the heater in the restroom. However, the heater had not been turned on because the weather conditions were not adverse.
The heater was 14 tall, 2' wide, and approximately 6 in depth. It was installed parallel with the wall near the entrance to the restroom, and was connected to a gas line in the wall by copper tubing situated approximately 13 above the floor behind the heater. A valve located on the heater was used to turn the heater on and off. There was no vent for the heater other than two windows in the restroom.
On the night of November 16, defendant closed his station at 5 p. m. and left. Although defendant testified that he locked the restroom, he also admitted that the lock could be forced easily. There was other testimony that the restroom was never locked. In any event, no gas was leaking from the heater at the time the station closed on November 16.
At approximately 8:30 p. m., Ekberg (then age 15) and Talamantes (then age 13) entered a nearby restaurant and thereafter were directed to leave by the restaurant manager. They went from the restaurant to the service station in order to use the restroom. Ekberg was the first to arrive at the door of the restroom, and Talamantes and another young man were following him. Ekberg partially opened the door to the restroom, stopped to strike a match in order to light a cigarette, and a flash fire occurred which injured all of the boys.
Subsequent investigation disclosed that the copper tubing which supplied gas to the heater had been broken, causing gas to accumulate inside the restroom. The gas was ignited when Ekberg struck the match. While the copper tubing was broken by force, there was no evidence tending to establish that these young men were the perpetrators of the damage to the heater. Rather, approximately 45 minutes to one hour prior to the flash fire, one of the employees at the restaurant observed other young men at the service station premises and noted that one of these men had exited the restroom.
Construing the evidence and all attendant inferences in a light most favorable to the verdict, see Kiefer Concrete, Inc. v. Hoffman, Colo., 562 P.2d 745 (1977), plaintiffs point to the following evidence as supporting imposition of liability upon defendant for creating an unreasonable risk of harm to persons on the station premises. Defendant maintained the restroom for the use and benefit of the public. People were in the habit of coming from a nearby shopping center across the street to use the restroom, and plaintiffs themselves had used it on various occasions. Defendant was aware that young people lived in the neighborhood, but there was no fence around the property, and there were no signs of any kind restricting the use of the property or warning of danger. The gas heater was fed through a 28 to 30 soft copper pipe, fastened by the defendant...
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Ekberg v. Greene, C-1386
...holding that, as a matter of law, defendant's negligence was not the proximate cause of the plaintiffs' injuries. Ekberg v. Greene, Colo.App., 571 P.2d 727 (1977). We granted certiorari and now reverse. We hold that proximate cause is an issue of fact under the record of this case, and ther......