Lewis v. Emil Clayton Plumbing Co., 99CA2166.

• Decision Date: 09 November 2000
• Docket Number: No. 99CA2166.,99CA2166.
• Parties: Diane LEWIS, personal representative for the estate of Margaret A. Sena; Dale Sena; Dave Sena; John Connors; and Ohio Casualty Insurance Company, Plaintiffs-Appellants, v. EMIL CLAYTON PLUMBING CO., Defendant-Appellee.
• Court: Colorado Court of Appeals

25 P.3d 1254

Diane LEWIS, personal representative for the estate of Margaret A. Sena; Dale Sena; Dave Sena; John Connors; and Ohio Casualty Insurance Company, Plaintiffs-Appellants, v. EMIL CLAYTON PLUMBING CO., Defendant-Appellee.

No. 99CA2166.

Colorado Court of Appeals, Div. III.

November 9, 2000.

Rehearing Denied January 18, 2001.

Certiorari Denied June 25, 2001.

Douglas J. Traeger, Glendale, CO, for Plaintiffs-Appellants Diane Lewis, personal representative for the estate of Margaret A. Sena; Dale Sena; Dave Sena; and John Connors.

David M. Bryans, Denver, CO, for Plaintiff-Appellant Ohio Casualty Insurance Company.

Campbell, Latiolais & Ruebel, P.C., Colin C. Campbell, Denver, CO, for Defendant-Appellee.

Opinion by Judge MARQUEZ.

In this action for wrongful death and property losses, plaintiffs, Diane Lewis, personal representative for the estate of Margaret A. Sena (decedent); Dale Sena; Dave Sena; John Connors; and Ohio Casualty Insurance, appeal from a summary judgment in favor of defendant, Emil Clayton Plumbing Company. We affirm.

Approximately five weeks after defendant replaced a water heater in the basement of the Sena home, the house was destroyed in a massive gas explosion, killing decedent. The explosion resulted from the failure of a flexible gas connector on a basement stove. Plaintiffs filed this action against defendant alleging that defendant had installed a water heater in the basement of the Sena premises without obtaining a building permit. They also alleged that defendant had negligently failed to inspect the gas piping, to see a readily apparent dangerous brass flex connector connected to a nearby gas stove and remove or replace the connector, and to warn the occupants of the house of this dangerous condition.

I.

In granting defendant's motion for summary judgment, the trial court ruled that the defendant, despite its occupational skills, had no legal duty to notice, inspect, remedy, or warn of a dangerous condition within its plain view, when such condition was not a part of the particular appliance upon which the defendant was working. Plaintiffs contend such ruling was in error. Specifically, plaintiffs contend that defendant had a duty to inspect an older gas range, of which defendant was aware and which was within its plain view, for dangerous connectors which defendant knew would ultimately fail and cause an explosion. In support of their position, plaintiffs assert that defendant admitted that, upon viewing such a stove, it would inspect and warn the homeowner if defendant found a faulty connector. We do not agree that defendant had a duty to inspect the stove or to warn the occupants of the home.

Summary judgment is a drastic remedy and should be granted only upon a clear showing that there is no genuine issue of material fact. C.R.C.P. 56(c). The moving party has the burden of establishing that no triable issue exists and all doubts should be resolved in favor of the non-moving party. Smith v. Boyett, 908 P.2d 508 (Colo.1995).

In determining whether there is an issue of material fact for the purposes of a summary judgment motion, an appellate court must resolve all doubts as to the existence of triable factual issues against the moving party and should give the party against whom the motion is asserted the benefit of all favorable inferences that may be drawn from the facts. Gifford v. Colorado Springs, 815 P.2d 1008 (Colo.App.1991).

Our review of a summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995)

.

Whether a particular defendant owes a duty to a particular plaintiff is a question of law for the court to decide. Martinez v. Lewis, 969 P.2d 213 (Colo.1998); see also Turkey Creek, LLC v. Rosania, 953 P.2d 1306 (Colo.App.1998)

(the scope of legal duty is a question of law for a court to decide).

A duty may exist under a contract because a contractual obligation is the "matrix from which an independent tort obligation may arise." Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980).

There are several factors to be considered in determining the existence of a duty in a particular case. They include:

[1] the risk involved, [2] the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, [3] the magnitude of the burden of guarding against injury or harm, and [4] the consequences of placing the burden upon the actor.

University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987).

A.

The present case does not involve a negligent act. Rather, it involves an alleged failure to act. In nonfeasance cases, the existence of a duty has been recognized in only a limited group of special relationships between parties including common carrier/passenger, innkeeper/guest, employer/employee, possessor of land/invited entrant, parent/child, and hospital/patient. University of Denver v. Whitlock, supra; see

Restatement (Second) of Torts § 314A (1965). The plumber/customer relationship here does not involve such a special relationship.

Further, we recognize that, under Metropolitan Gas Repair Service, Inc. v. Kulik, supra,

a contractual obligation is not the measure of one's tort liability. In Kulik, an explosion in decedent's home was caused by a malfunction of a safety relief valve on a boiler. One of the defendants was called to replace the pump motor on the boiler and a repairman wrote in his report that he had "checked boiler." It was virtually undisputed that a plugged safety valve creates a serious hazard to the boiler system. While the defendant did not perform work directly on the safety valve, there was also evidentiary support for reasonable inferences that the safety valve was in plain view.

However, the present case is distinguishable from Kulik. Here, defendant's contractual services were limited to installing a water heater and to work related to the water heater. Thus, unlike in Kulik, where the defective valve was related to the boiler system, defendant's obligations under the contract here were not related to the stove's gas connector, which ultimately caused the explosion. Further, nothing in the record indicates that the defendant agreed or assumed a duty to make a general inspection of the premises. It is undisputed that the limited items defendant did inspect related only to the water heater and that defendant's work in relation to the water heater was performed competently.

Plaintiffs have not presented legal authority to support their contention that defendant had a duty to inspect an appliance upon which it was not asked to perform work. If there is no duty to inspect, and defendant was unaware of a hazard, there can be no duty to warn.

Nor do defendants have a duty under the factors set forth in University of Denver v. Whitlock, supra. Even if we assume that the risk to plaintiff was great and that the effort required to inspect the stove would have been minimal, there is no evidence to indicate that the presence of a defective brass flex connector on another appliance was foreseeable.

Further, the consequences of imposing upon defendant the duty proposed by plaintiffs would be extensive. As the trial court noted, service providers should perform their contractual duties competently and refrain from causing injury. But, it is unreasonable to hold that such providers have a duty to investigate and remedy all other conditions nearby. We agree that this would be both costly and impractical.

We also reject plaintiff's contention that Halliburton v. Public Service Co., 804 P.2d 213 (Colo.App.1990), in which a gas company was held liable for an explosion allegedly caused by a leaking flexible tube, is "identical to the case at bar." There, a division of this court determined that the gas company's duty arose from the fact that the company's product, natural gas, was a substantial factor in causing...