Goodwin v. Enserch Corp., 88-2204

• Citation: 949 F.2d 1098
• Decision Date: 26 November 1991
• Docket Number: No. 88-2204,88-2204
• Parties: Karen GOODWIN, as Special Administrator of the Estate of Dianne Dudley Waugh, Deceased, Plaintiff-Appellant, v. ENSERCH CORPORATION, d/b/a Lone Star Gas Company, an operating division of Enserch Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1098

949 F.2d 1098

Karen GOODWIN, as Special Administrator of the Estate of Dianne Dudley Waugh, Deceased, Plaintiff-Appellant, v. ENSERCH CORPORATION, d/b/a Lone Star Gas Company, an

operating division of Enserch Corporation,

Defendant-Appellee.

No. 88-2204.

United States Court of Appeals,

Tenth Circuit.

Nov. 26, 1991.

Order on Denial of Rehearing and

Rehearing En Banc March 2, 1992.

Don Manners, Oklahoma City, Okl., for plaintiff-appellant.

David W. Edmonds, John R. Hargrave and Randy D. Witzke of Edmonds, Cole, Hargrave & Givens, Oklahoma City, Okl., for defendant-appellee.

Before SETH, HOLLOWAY and BARRETT, Circuit Judges. ^*

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Karen Goodwin (Goodwin) appeals a judgment entered for defendant-appellee Enserch Corporation (Enserch). This judgment followed the district court's order granting judgment for Enserch notwithstanding the verdict rendered for Goodwin. After the jury verdict in the wrongful death action in favor of Goodwin, the trial judge concluded that she had presented insufficient evidence to support a finding of negligence and granted the judgment n.o.v. The controlling issue in Goodwin's appeal is whether she presented sufficient direct and circumstantial proof to establish a prima facie negligence case, although she did not offer specific testimony on the appropriate conduct for a natural gas pipeline under the circumstances.

We are convinced that the trial court erred in granting judgment n.o.v. because Goodwin presented sufficient evidence from which the jury could draw a reasonable inference of negligence, and additional proof on particular conduct required of the defendant Enserch was not mandated. Accordingly, we reverse and remand for entry of judgment on the verdict.

I. BACKGROUND

In February 1987, Dianne Dudley Waugh was living and working at a family tack manufacturing business in southeastern Oklahoma. Waugh recently had moved into a small building that served as the office for the business but that also was equipped and furnished as a living quarters. On February 28, 1987, an early morning fire occurred and there was substantial evidence that it followed a gas explosion the defendant offered contrary evidence. Although she escaped, Waugh was severely burned. Waugh, age 29, died five days after the fire.

As special administrator of her deceased sister's estate, Goodwin filed a wrongful death action in the United States District Court for the Eastern District of Oklahoma. The diversity action named as the defendant the operator of the natural gas pipeline, Enserch, doing business as Lone Star Gas Company (Lone Star). Goodwin's complaint essentially alleged that natural gas leaking from a transmission pipeline that traversed the shop site had caused the explosion and that this resulted from negligence by the defendant in constructing, testing, and inspecting its pipeline. I R.Doc. 2 (First Amended Complaint).

During the jury trial, Enserch challenged the sufficiency of Goodwin's evidence. Enserch moved for a directed verdict pursuant to Rule 50(a) of the Federal Rules of Civil Procedure on the ground that Goodwin had not proved negligence. With the Enserch motion for a directed verdict pending, the district judge submitted the case to the jury on Goodwin's negligence theories. He instructed that Goodwin claimed that the gas company was negligent under four theories:

One. In failing to construct the pipeline in such manner as to prevent leaks from occurring. Two. In failing to properly test and inspect the line for leaks. Three. In failing to properly test and inspect the [ethyl mercaptan], the odorant in the natural gas. And [f]our. In failing to prevent ethyl mercaptan from dissolving and failing to emit an odor to warn persons of leaks....

VI R. 738.

The jury returned a verdict in favor of Goodwin and found damages in the amount of $725,000. Accepting the verdict, the district court denied Enserch's pending motion for a directed verdict. ¹ Two days before the district court entered judgment, Enserch filed a motion for a judgment n.o.v. pursuant to Rule 50(b). After entering judgment in favor of Goodwin, the trial judge granted the Enserch motion for judgment n.o.v. on the ground that Goodwin had not presented sufficient evidence of the standard of care required of the pipeline. In his order the district judge explained that Goodwin "presented either insufficient or no evidence concerning the duty, or standard of care, to which the defendant should be held in the construction, maintenance and inspection of its pipeline and in the odorization of its gas." I R.Doc. 15, at 4. ²

On appeal, Goodwin contends: that the trial court erred in granting judgment n.o.v.; that sufficient evidence was presented to show a breach of the high standard of care required to prevent the escape of gas, a highly dangerous commodity; that there was evidence to show the explosion was caused by such escape of gas from defendant's pipeline; and that there was evidence of negligence in the construction, testing, and inspection of the pipeline.

II. SUFFICIENCY OF THE PLAINTIFF'S CASE

A. Standard of Review

Applying the same standard that the trial court applied, we review de novo district court rulings granting or denying judgment notwithstanding the verdict. E.g., Meyers v. Ideal Basic Indus., Inc., 940 F.2d 1379, 1383 (10th Cir.1991); Rajala v. Allied Corp., 919 F.2d 610, 615 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991). Thus, we test the evidence under the standard " 'whether there is evidence upon which the jury could properly find a verdict for [the party against whom the motion is directed].' " Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 498-99 (10th Cir.1984) (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2524, at 543 (1971)). In determining whether the evidence was sufficient, we apply the substantive Oklahoma law controlling a plaintiff's burden of proving negligence. See, e.g., Meyers, 940 F.2d at 1383. In reviewing the evidence, we must "view the evidence and all inferences in a light most favorable to the nonmoving party," although the nonmovant's position "must be supported by more than a mere scintilla of evidence." Meyers, 940 F.2d at 1383. As instructed by the Supreme Court, in reviewing the application below of Oklahoma substantive law we review the ruling de novo. Salve Regina College v. Russell, --- U.S. ----, ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190, 198 (1991).

B. Oklahoma Law Controlling Sufficiency of Evidence of Negligence

1. Prima Facie Proof of Negligence

Because the standard of review specifies a test for sufficiency of proof, we determine whether Goodwin presented a prima facie case of negligence. Under Oklahoma law, a plaintiff presents prima facie proof of negligence by establishing: (1) that the defendant owed a duty to protect the plaintiff from injury or other harm; (2) that the defendant breached, or failed properly to perform, the required duty; and (3) that the defendant's failure to perform the duty proximately caused injury or other harm to the plaintiff. E.g., McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 470 (Okla.1987); Thompson v. Presbyterian Hosp., Inc., 652 P.2d 260, 263 (Okla.1982). If Goodwin presented sufficient prima facie proof, then the issue of negligence properly was a question for the jury to resolve. See, e.g., Towery v. Guffey, 358 P.2d 812, 814 (Okla.1960) (reversing directed verdict for defendant because plaintiff established prima facie case of negligence); Julian v. Sinclair Oil & Gas Co., 168 Okl. 192, 32 P.2d 31, 37 (1934) (reversing ruling that plaintiff's evidence was insufficient to go to jury where escaping gas from leaky pipeline caused explosion and resulting personal injuries). A showing by circumstantial evidence is a permissible method of proving breach of duty. See, e.g., Fletcher v. Meadow Gold Co., 472 P.2d 885, 887 (Okla.1970) ("essential elements of negligence are provable by circumstantial evidence"); Safeway Stores, Inc. v. Fuller, 118 P.2d 649, 651 (Okla.1941) ("primary negligence may be established by circumstantial evidence"); see also Nye v. Cox, 440 P.2d 683, 685 (Okla.1968) (explaining plaintiff may establish prima facie case of negligence through circumstantial evidence) (syllabus by the court).

2. Legal Duty of Care of Natural Gas Pipelines

As the district court instructed the jury, a business that handles natural gas is under a duty to exercise a high degree of care to prevent accidents. ³ The Oklahoma Supreme Court has explained that

a higher degree of care and vigilance is required in dealing with natural gas than in the ordinary affairs of life and business, and one who handles such a dangerous agency must use a degree of care to prevent damage from the escaping of gas which is commensurate with the danger which it is its duty to avoid.

Margay Oil Corp. v. Jamison, 177 Okl. 433, 59 P.2d 790, 792 (1936) (emphasis added). ⁴

The standard of care for handlers of natural gas does not contain specific requirements. "While no absolute standard of duty can be prescribed, every reasonable precaution suggested by experience and the known danger of the escape of gas ought to be taken." Oklahoma Gas & Elec. Co. v. Oklahoma Ry., 77 Okl. 290, 188 P. 331, 332 (1920). As the Oklahoma Supreme Court held in Julian v. Sinclair Oil & Gas Co.:

The courts have always recognized the known dangerous character of natural gas and have carefully refrained from laying down a rule by which to measure the degree of care and caution to be exercised in the handling of said dangerous substance, and have adopted the policy that those handling natural gas should be required to exercise such a degree of care and caution as is commensurate with its known danger. Whether or not defendant exercised such care is an issue of fact which under proper instructions should be submitted to a jury.

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