Hegwood v. Virginia Natural Gas, Inc., Record No. 972041.

• Decision Date: 18 September 1998
• Docket Number: Record No. 972041.
• Citation: 505 S.E.2d 372,256 Va. 362
• Parties: Charles J. HEGWOOD, Administrator, etc. v. VIRGINIA NATURAL GAS, INC.
• Court: Virginia Supreme Court

505 S.E.2d 372

256 Va. 362

Charles J. HEGWOOD, Administrator, etc. v. VIRGINIA NATURAL GAS, INC.

Record No. 972041.

Supreme Court of Virginia.

September 18, 1998.

Stanley E. Sacks (Sacks & Sacks, on brief), Norfolk, for appellants.

Samuel W. Meekins, Jr. (Barry Dorans; Wolcott, Rivers, Wheary, Basnight & Kelly, on brief), Virginia Beach, for appellee.

Present: CARRICO, C.J., COMPTON, LACY, HASSELL, KEENAN and KOONTZ, JJ., and STEPHENSON, Senior Justice. STEPHENSON, Senior Justice.

The principal issue in this appeal is whether the trial court erred in striking the plaintiff's evidence. Two other issues involve the trial court's rulings on evidentiary matters.

I

Charles J. Hegwood, Administrator of the estates of four decedents, William E. Dempsey, William E. Staton, Julia M. Dempsey, and Lakeshia Dempsey (the Administrator), instituted separate wrongful death actions against Virginia Natural Gas, Inc. (the Gas Company) and others, seeking damages in the amount of $5,000,000 in each action.¹ The Administrator alleged that the decedents had died as a proximate result of the Gas Company's having exposed them to a fatal level of carbon monoxide gas.

The trial court consolidated the four actions for discovery and trial. The case was tried to a jury, and, at the conclusion of the Administrator's evidence, the trial court struck the evidence and entered final judgment in favor of the Gas Company. We awarded the Administrator this appeal.

II

Julia Dempsey, the tenant, and her two children, Lakeshia, age 15, and William, age five, lived in low-income, federally subsidized housing in the City of Norfolk. William Staton, Julia's friend, also lived with Julia from time to time.

Gas service was initially supplied to the residence in Julia's name in May 1991. The water heater, boiler, and range were gas fired and located in the kitchen. In February 1992, Julia was in arrears in her payments to the Gas Company, and, on February 10, 1992, the Gas Company discontinued its service to the premises by cutting off the supply of gas at the exterior meter, the Gas Company's "delivery point."

On March 11, 1993, after the arrearages had been paid, the Gas Company's service mechanic, Patrick Paul Palumbo, Jr., restored the gas supply. Palumbo removed the exterior meter lock and turned the valve, thereby allowing gas to flow into the house.

Palumbo then checked the gas-fired appliances in the house. He checked the range and determined that it was operating satisfactorily; therefore, he left on the gas supply to the range. Palumbo, however, discovered that the exhaust from the water heater was not properly venting the combustion gases. The combustion gases were "backdrafting" into the house rather than exiting the house through a vent pipe connected to a chimney. Palumbo knew that a "backdrafting" appliance can form carbon monoxide and create a "life threatening" situation. Therefore, he turned off the gas supply to the water heater at the control valve on the appliance and at the valve on the fuel line leading to it.

When Palumbo checked the boiler, he discovered that it was inoperable due to a defective thermostat. Consequently, Palumbo shut off the gas supply to the boiler at the control valve on the boiler and at the valve on the fuel line leading to it.

Palumbo did not determine the reason the water heater was "backdrafting." He knew that the venting systems for the water heater and the boiler used a common chimney. He also knew that an obstructed or clogged chimney could cause "backdrafting."

Palumbo attached a "red tag" to the shut-off valve on the fuel line leading to the water heater. The red tag stated that "THIS METER OR APPLIANCE MUST NOT BE TURNED ON UNTIL THE CONDITION INDICATED BELOW HAS BEEN CORRECTED." The red tag was left at the premises, and a red tag receipt was kept as a Gas Company record. Palumbo noted on the red tag and on the red tag receipt that the water heater was an "Unsafe appliance" because it was "Backdrafting" and that the gas supply to it had been shut off. He also made a notation on the red tag and the red tag receipt indicating that he had "left off" the boiler due to a "Defective T-stat." Palumbo had William Staton sign the red tag receipt, and he explained the problems to Staton and directed him not to use the appliances.

Sometime after March 11, 1993, the defective water heater and boiler were turned on by an unidentified person or persons. On December 12, 1994, all three family members and Staton were found dead in the house, and the house was filled with noxious gas.

According to investigators from the Norfolk Fire Department, there was a heavy and extensive build-up of "soot" or "unburned carbon" on the walls and ceiling of the kitchen as well as in other rooms in the house. The investigators opined that this condition resulted directly from "backdrafting" caused by incomplete combustion, resulting in unburned carbon drafting back into the house. The heaviness of the soot deposits indicated that the condition had built up over a "long" time. The investigators examined the interior of the chimney to which the appliance vents were connected. They found that there were large collections of fallen bricks, leaves, and debris obstructing the chimney. According to the investigators, this condition caused both the water heater and boiler to "backdraft."

James V. Powell, Jr., testified as an expert for the Administrator. Powell is a chemical engineer who had been engaged in the heating and air-conditioning field since 1949. Powell opined that the blocked chimney caused the "backdrafting" of both appliances that in turn created carbon monoxide as a result of incomplete combustion.

A vice president of the Gas Company, called as an adverse witness by the Administrator, testified that the Gas Company operated under "Terms and Conditions" approved by the State Corporation Commission. These Terms and Conditions included a provision that the Gas Company's customer shall be responsible for the maintenance and repair of the customer's piping, appliances, and equipment on the customer's side of the Gas Company's metering equipment.

III

The Administrator contends that the trial court erred in excluding certain opinions of his expert, James V. Powell, Jr. The court excluded Powell's opinions that (1) the Gas Company should have cut off the gas supply at the exterior meter, (2) the red tag was inadequate to properly and effectively warn of the dangers, and (3) the obstructed condition of the chimney which existed on December 12, 1994, was the same condition that existed on March 11, 1993, and was the cause of the "backdrafting."

Whether a witness may render an opinion as an expert is a matter that rests within the sound discretion of a trial court. The trial court's ruling will be reversed only where the court has abused its discretion. Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992); Philip Morris Incorporated v. Emerson, 235 Va. 380, 411, 368 S.E.2d 268, 285 (1988); Landis v. Commonwealth, 218 Va. 797, 800, 241 S.E.2d 749, 750-51 (1978).

With respect to Powell's opinion that the Gas Company "should have" discontinued the gas supply at the meter, the trial court observed that this was "simply [Powell's] opinion and [was] not based on his knowledge of industry standards or practices." The record indicates that, although Powell had been in the business of designing, installing, and repairing commercial heating systems, he was not an expert in the utility business and was not conversant with the gas industry's standards or practices. We cannot say, therefore, that the trial court abused its discretion in excluding this opinion.

The Administrator also claims that the trial court erred in excluding Powell's opinion that the boiler should have been red tagged for "backdrafting" by the Gas Company's mechanic, Palumbo. Powell reasoned that Palumbo should have known that, if the water heater were "backdrafting," then the boiler also would have been "backdrafting" because the two appliances were vented into the same chimney. Powell's opinion was based upon an assumption that the condition in the chimney that caused the water heater to "backdraft" on March 11, 1993, also would have caused the boiler to "backdraft" had it been operable. Powell conceded, however, that there were potential causes for the water heater to "backdraft" which would not have caused the boiler to "backdraft." Powell also conceded that Palumbo did not know that the boiler was "backdrafting" because he could not get the boiler to operate due to a defective thermostat.

The trial court observed that there was nothing in the record to support Powell's assumption that the chimney was in the same condition on March 11, 1993, as it was some 20 months later when the decedents' bodies were discovered. The court concluded, therefore, that Powell's opinion was premised upon an insufficient factual basis and was speculative. Again, we cannot say that the trial court abused its discretion in excluding Powell's opinion about Palumbo's failure to red tag the boiler. It follows, therefore, that the trial court also did not abuse its discretion in refusing to allow Powell to opine that, because the chimney was...