Metropolitan Gas Repair Service, Inc. v. Kulik

• Decision Date: 08 December 1980
• Docket Number: No. 79SC315,79SC315
• Parties: METROPOLITAN GAS REPAIR SERVICE, INC., Petitioner, v. Michael KULIK and Carla Rivero, Respondents.
• Court: Colorado Supreme Court

Page 313

621 P.2d 313

METROPOLITAN GAS REPAIR SERVICE, INC., Petitioner, v. Michael KULIK and Carla Rivero, Respondents.

No. 79SC315.

Supreme Court of Colorado.

Dec. 8, 1980.

Rehearing Denied Jan. 5, 1981.

Fortune & Lawritson, P. C., Lowell Fortune, Denver, for petitioner.

White and Steele, Michael W. Anderson, Denver, for respondents.

QUINN, Justice.

We granted certiorari to review the court of appeals' decision in Kulik, et al. v. Public Service Company of Colorado, et al., Colo.App., 605 P.2d 475 (1979), which reversed the trial court's direction of a verdict in favor of a heating contractor-defendant in a negligence action by plaintiffs for property damages resulting from an explosion in their home due to a defective heating system. The court of appeals held that the heating contractor's duty to its customer is not limited to the mere installation of a new part in the heating system pursuant to its service contract but rather extends to the exercise of reasonable care and skill in the performance of that service and that its duty may be breached by failing to make a safety inspection of the boiler system. We affirm the judgment of the court of appeals.

Michael Kulik, as administrator of the estate of Darrow Moline, decedent, and Carla Rivero, the decedent's daughter (plaintiffs), commenced an action in negligence against Public Service Company of Colorado, Bell Plumbing and Heating Company and Metropolitan Gas Repair Service (Metropolitan) for property damage to the Moline home resulting from the explosion of a gas operated boiler which furnished hot water heat to the home. ¹ The plaintiffs claimed that the negligence of all three defendants consisted of their failure to make an inspection of the safety system and to discover a plugged or obstructed safety relief valve during repair work at the home at various times prior to the explosion.

The evidence at trial established that the explosion was caused by a malfunction of either an aquastat ² or a gas valve, ³ thereby allowing the gas burner to continue to build up pressure in the boiler. The safety relief valve serves the function of releasing pressure from the boiler when it reaches a dangerous level. It accomplishes this function by allowing the pressure to escape from an aperture at the bottom of the valve. The plugged condition in the safety relief valve resulted from a large bolt which had been screwed into the aperture. ⁴ The head of the bolt protruded externally from the bottom of the valve and was readily visible. The safety relief valve was located near the front of the boiler approximately four-and-one half feet from the floor and was observable at about eye level. If the safety relief valve had not been plugged, pressure in the boiler would have been released and the explosion would not have occurred.

None of the three defendants performed work directly on the safety relief valve. They did, however, make service calls on various occasions prior to the explosion due to serious difficulties with the heating system. In May 1971 a Public Service repairman had "red-tagged" the system because the burners were maladjusted and created a fire hazard to the floor and walls surrounding the boiler. Thereafter, a repairman from Bell Plumbing and Heating Company corrected this problem and removed the "red tag." In October 1971 another Public Service repairman responded to a "no heat" call at the Moline residence. On this occasion it was determined that the circulation pump motor on the boiler was not working properly. On the following day, October 29, 1971, the decedent called Metropolitan to replace the pump motor. Metropolitan's repairman did so and on his service report wrote that he had "checked boiler." The explosion occurred in April 1974 resulting in extensive destruction to the Moline residence and in significant damage to the personal property therein.

The plaintiffs' theory of liability in negligence was that even though the defendants had not performed work specifically on the safety relief valve, their respective repairmen should have noticed its plugged condition and their failure to do so constituted negligence. At the conclusion of Metropolitan's evidence the trial court granted its motion for a directed verdict. It ruled that Metropolitan's obligation was limited to installing a new pump motor and that it had no duty to inspect the safety relief valve. The plaintiffs' claims against the codefendants, Public Service Company and Bell Plumbing and Heating Company, were submitted to the jury and the jury returned a verdict for those defendants. The court of appeals reversed the directed verdict in favor of Metropolitan and remanded the case for a new trial on plaintiffs' claim against Metropolitan. ⁵ It held that Metropolitan's contractual relationship with the plaintiffs gave rise to a duty to perform its work with reasonable care and skill, and whether it breached that duty by failing to inspect and observe the plugged safety valve presented a jury question.

Metropolitan asserts that the court of appeals erred in two respects. It argues that the nature and extent of its duty to the plaintiffs presented a question of law which was resolved correctly by the trial court but was improperly relegated to a question of fact by the court of appeals. Metropolitan also contends that even if the trial court erroneously directed a verdict in its favor, that error was harmless in view of the jury's verdict in favor of the codefendants on the identical issues raised against it. We are not persuaded by these contentions.

I. THE DEFENDANT'S DUTY

In urging reversal Metropolitan points to the statement in the court of appeals' opinion that "once the existence of a duty is established, the particular scope of that duty is a question for the trier of fact." If this statement is intended as a description of the allocation of function between court and jury in the determination of the standard or measure of a defendant's duty, it is incorrect. E. g., Restatement (Second) of Torts § 328B (1965). ⁶ If, on the other hand, the statement was meant to describe the jury's role in determining whether in fact a defendant has breached a duty to a plaintiff and thereby caused damage, it represents a correct statement of law. E. g., Restatement (Second) of Torts § 328C (1965). In any event, we elect to address ab initio the merits of Metropolitan's claim that the court of appeals erred in reversing the trial court's direction of a verdict in its favor.

The trial court's direction of a verdict for Metropolitan was based on the underlying assumption that the contract between the decedent and Metropolitan limited the latter's duty only to the installation of a new pump motor. In so concluding the trial court erred.

The contractual obligation is not the touchstone of civil liability in tort. It is only the matrix from which an independent tort obligation may arise. See Lembke Plumbing and Heating v. Hayutin, 148 Colo. 334, 366 P.2d 673 (1961). In this case the service contract created consensual obligations between the decedent and Metropolitan in relation to the boiler system in decedent's home. It did not, however, transform Metropolitan's contractual obligation into the measure of its tort liability arising out of its contractual performance. Lembke Plumbing and Heating v. Hayutin, supra; Wright v. Creative Corp., 30 Colo.App. 575, 498 P.2d 1179 (1972).

Where damage is to be foreseen, there is a duty to act so as to avoid it. E. g., MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). Whether defendant owes a legal duty to a particular plaintiff is a question of law. See, e. g., DeCaire v. Public Service Co., 173 Colo. 402, 479 P.2d 964 (1971); Lembke Plumbing and Heating v. Hayutin, supra; Roessler v. O'Brien, 119 Colo. 222, 201 P.2d 901 (1949); Baird v. Power Rental Equipment, Inc., 35 Colo.App. 299, 533 P.2d 941 (1975), aff'd, 191 Colo. 319, 552 P.2d 494 (1976). The court determines, as a matter of law, the existence and scope of the duty that is, whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection. See Restatement (Second) of Torts § 328B (1965); 3 J. Dooley, Modern Tort Law § 45.02 at 230 (1977); L. Green, Rationale of Proximate Cause 66 (1927); 2 Harper and James, The Law of Torts § 18.8 at 1058 (1956); W. Prosser, The Law of Torts 206 (4th ed. 1971). In negligence cases the duty is to use reasonable care in light of the apparent risk. E. g., Prosser, supra at 324.

The flaw in the trial court's direction of a verdict lies in the application of the contractual standard of performance in measuring the defendant's duty in tort. In Samuelson v. Chutich, 187 Colo. 155, 159, 529 P.2d 631, 633-34 (1974), we adopted Justice Traynor's statement in Gagne v. Bertram, 43 Cal.2d 481, 275 P.2d 15 (1954), on a contractor's duty to its customer in the performance of a service contract:

" 'The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence.' "

See, e. g., Driscoll v. Columbia Realty-Woodland Park Co., 41 Colo.App. 453, 590 P.2d 73 (1978); Russell v. Jacksonville Gas Corp., 117 So.2d 29 (Fla.Dist.Ct.App.1960); Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503 (1906); Montgomery Ward v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947).

Therefore the court of appeals correctly held that Metropolitan's contractual relationship with the decedent gave rise to a common law duty to perform its work with reasonable care and skill. The issue whether or not Metropolitan actually breached that duty and thereby caused damage to the plaintiffs' legally protected...