Jaramillo v. Fisher Controls Co., Inc.

• Decision Date: 22 January 1985
• Docket Number: Nos. 7363,7377,s. 7363
• Parties: Julian JARAMILLO, Roberto Mondragon and Maria Isabel Mondragon, Plaintiffs-Appellants, Cross-Appellees, v. FISHER CONTROLS COMPANY, INC., Defendant-Appellee, Cross-Appellant, and Cotton Butane Company, Inc. and Arrow Gas Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 887

698 P.2d 887

102 N.M. 614

Julian JARAMILLO, Roberto Mondragon and Maria Isabel

Mondragon, Plaintiffs-Appellants, Cross-Appellees, v. FISHER CONTROLS COMPANY, INC., Defendant-Appellee, Cross-Appellant, and Cotton Butane Company, Inc. and Arrow Gas Company,

Defendants-Appellees.

Nos. 7363, 7377.

Court of Appeals of New Mexico.

Jan. 22, 1985.

Certiorari Denied April 12, 1985.

Janet Santillanes, Klecan & Santillanes, P.A., Albuquerque, for plaintiffs-appellants and cross-appellees

Thomas J. McBride, David H. Stotts, Johnson and Lanphere, P.C., Albuquerque, for defendant-appellee and cross-appellant.

Jeffrey R. Brannen, Montgomery & Andrews, P.A., Santa Fe, for defendant-appellee Cotton Butane Co., Inc.

Saul Cohen, Sutin, Thayer & Browne, P.C., Santa Fe, for defendant-appellee Arrow Gas Co.

OPINION

WOOD, Judge.

Jaramillo purchased a gas regulator from Cotton Butane Company (Cotton). The regulator was manufactured by Fisher Controls Company (Fisher). The function of the regulator was to control the amount of propane gas moving from a tank of propane to an appliance. Arrow Gas Company (Arrow) had filled the propane tank. Jaramillo took the regulator to the home of his mother and stepfather, Isabel and Roberto Mondragon, in order to test a stove. He connected the regulator into a line between the tank and stove. A few seconds after opening the valve on the propane tank, Jaramillo heard a noise as if something had "given," became aware that gas was escaping and yelled for everyone to get out of the house. Jaramillo reentered the house looking for his son. After hearing that his son was outside, he decided to close the valve on the propane tank. An explosion occurred as he was closing the valve. A second explosion and fire also occurred. Jaramillo suffered personal injury; the Mondragons suffered property damage.

The case against Cotton and Fisher was submitted to the jury on a theory of products liability, and the case against Arrow was submitted on a theory of negligence. The jury attributed the cause of Jaramillo's personal injury and the Mondragons' property damage as fifty percent to Jaramillo, ten percent to Isabel Mondragon (Isabel) and forty percent to Fisher. Jaramillo, the Mondragons and Fisher appealed. We (1) identify the appellate posture of the case and divide our discussion of the issues into the following categories: (2) jury selection; (3) evidentiary rulings; (4) comparative fault rulings; and (5) computation of the Mondragons' judgment and assessment of costs.

Appellate Posture

Inasmuch as separate appeals were filed by plaintiffs and by Fisher, we consolidated the appeals and ordered that Fisher be treated as a cross-appellant.

The issues involving jury selection, evidence and comparative fault are raised by Jaramillo and the Mondragons, who ask that judgment be entered in their favor for the full amount of their damages, without reduction for their negligence. Cotton and Arrow point out that the jury determined they were not liable to any plaintiff, and ask that the judgment in their favor be summarily affirmed. Plaintiffs respond that their alternative requested disposition was for a new trial. This alternative request would require us to determine which of plaintiffs' issues involve Cotton or Arrow should we remand for further proceedings. Such a determination is unnecessary because plaintiffs' appellate claims are without merit. Accordingly, in discussing the contentions of Jaramillo and the Mondragons, we do not determine against which defendant the contention is directed.

The issues involving the computation of the Mondragons' judgment and the assessment of costs are raised by Fisher in its cross-appeal. We decide those issues. Fisher raised additional issues but asks that the additional issues not be considered unless one or more of plaintiffs' issues are meritorious. Because plaintiffs' issues are without merit, we neither identify nor consider these additional issues in the cross-appeal.

Jury Selection

Plaintiffs contend the trial court erred in failing to excuse five prospective jurors for cause. We assume five were challenged even though we have found only four challenges in the transcript.

One of the five was excused on grounds separate from the challenge. Plaintiffs used peremptory challenges for three of the five. However, none of the five actually sat as a juror.

"A defendant cannot claim prejudice for failure to dismiss prospective jurors if he fails to exercise available peremptory challenges." State v. Smith, 92 N.M. 533, 540-41, 591 P.2d 664 (1979). Plaintiffs ignore the fact that they did not use all of their peremptory challenges. They assert, citing State v. Sims, 51 N.M. 467, 188 P.2d 177 (1947), that "[i]t is reversible error for a trial judge to refuse to excuse a juror for cause if a juror is disqualified by bias from sitting on the panel." In Sims the disqualified person sat as a juror; in this case none of the persons challenged sat as a juror.

Plaintiffs make a generalized claim of prejudice, but they do not assert that "the jury, which finally heard the case, was in any way biased, prejudiced or unfair." State v. Martinez, 95 N.M. 445, 450, 623 P.2d 565 (1981); see also State v. Gonzales, 82 N.M. 388, 482 P.2d 252 (Ct.App.1971). Plaintiffs' claim is meritless.

Evidentiary Rulings

A. Fisher's Testing Procedures

Over the objection of plaintiffs, the trial court permitted Fisher to introduce evidence as to its testing procedures for regulators of the type purchased by Jaramillo.

Plaintiffs contend this evidence was improperly admitted under strict products liability law because a manufacturer is liable for injuries caused by a defective product even if the manufacturer has exercised all possible care during manufacture. See NMSA 1978, UJI Civ. 14.6 (Cum.Supp.1984), which was given, and Grammer v. Kohlaas Tank & Equipment Co., 93 N.M. 685, 604 P.2d 823 (Ct.App.1979). The evidence was not admitted to show care, or the absence of negligence, on Fisher's part. Plaintiffs sought recovery from Fisher on the basis of products liability; one of the theories of liability submitted to the jury was that there was a defect in the regulator. The trial court admitted the evidence on the question of the existence of a defect when the regulator left Fisher's control. See Perfetti v. McGhan Medical, 99 N.M. 645, 662 P.2d 646 (Ct.App.1983).

In Livingston v. Begay, 98 N.M. 712, 652 P.2d 734 (1982), plaintiff sought recovery from Montgomery Ward on a theory of products liability in supplying a defective heater. Livingston held that summary judgment in favor of Montgomery Ward was proper inasmuch as it made "a prima facie showing that the heater was not defective when sold, and since the opposing parties have failed to present any contrary evidence * * *." 98 N.M. at 717, 652 P.2d 734. The showing of "no defect" was (1) the heater had been tested prior to sale and approved as safe; and (2) there was no direct evidence of a design or manufacturing defect. Livingston established that evidence of testing procedures may be introduced in a case involving a defect. The question is when the testing procedures are admissible.

Brown v. General Foods Corp., 117 Ariz. 530, 573 P.2d 930, 934 (Ct.App.1978) states:

It should be noted that a manufacturer will rarely have available anything other than circumstantial evidence to disprove a plaintiff's claim relating to the discovery and existence of an alleged defect in a product. The circumstantial evidence is admissible, not to show lack of fault or the presence of due care on the manufacturer's part, but rather, as relevant evidence tending to show the improbability of the defect as alleged by the plaintiff. We can hypothesize a fact situation in which, by reason of the intrinsic nature of the defect and the impossibility of its occurrence other than in the manufacturing process, evidence of the manufacturer's quality control procedures would not be relevant and therefore would be inadmissible. However, such is not the case before us. The presence of the banana peel in the cereal box was not a defect of such a nature that it had to have occurred before the product left the possession and control of the defendant-manufacturer.

See also Johnesee v. Stop & Shop Companies, 174 N.J.Super. 426, 416 A.2d 956 (1980).

Although testing procedures may be admissible, plaintiffs assert those procedures were not relevant in this case. We disagree.

Only two components of the regulator survived the explosion and they were distorted in the fire. There was no direct evidence that the regulator was defective. Plaintiffs' evidence of a defect came from expert testimony based on circumstantial evidence. Fisher's evidence of testing procedures, also circumstantial, was to show that the defects postulated by plaintiffs' expert would not have passed any of Fisher's tests. Fisher's evidence tended to show that no defect existed; it was relevant. NMSA 1978, Evid.R. 401 (Repl.Pamp.1983).

B. New Mexico Liquefied Petroleum Gas (LPG) Code

Propane, defined to be a liquefied petroleum gas, is regulated by the Liquefied Petroleum Gas Bureau, which has authority to adopt rules and regulations. NMSA 1978, Secs. 70-5-4 and -5. Plaintiffs do not assert an absence of rules and regulations concerning the storage and handling of LPG. Fisher introduced evidence during cross- or recross-examination that the installation at the Mondragon home was in violation of the rules and regulations. Plaintiffs assert this testimony was improper for the three reasons discussed under this issue.

(1) Relevancy

Legislatively authorized rules and regulations have the force of law. Brininstool v. New Mexico State Board of Education, 81 N.M. 319, 466 P.2d 885 (Ct.App.1970). Violation of a properly adopted and filed rule or regulation is negligence per se. Maestas v. Christmas, 63 N.M. 447, 321 P.2d 631 (1958); cf. State v. Joyce, 94 N.M. 618, 614 P.2d 30 (Ct.App.1980).

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