Mora's Estate, Matter of

• Citation: 611 P.2d 842
• Decision Date: 27 May 1980
• Docket Number: No. 5090,5090
• Parties: In the Matter of the ESTATE of Tommy Max MORA, Jr., Deceased. Irene MORA, Administratrix of the Estate of Tommy Max Mora, Jr., Deceased, Appellant (Plaintiff), v. HUSKY OIL COMPANY, a Delaware Corporation authorized to do business in Wyoming; Darrell Kruljac and Frank Shubert, as Individuals and as partners, d/b/a Husky Car-Truck Stop, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

Page 842

611 P.2d 842

In the Matter of the ESTATE of Tommy Max MORA, Jr., Deceased.

Irene MORA, Administratrix of the Estate of Tommy Max Mora, Jr., Deceased, Appellant (Plaintiff), v. HUSKY OIL COMPANY, a Delaware Corporation authorized to do business in Wyoming; Darrell Kruljac and Frank Shubert, as Individuals and as partners, d/b/a Husky Car-Truck Stop, Appellees (Defendants).

No. 5090.

Supreme Court of Wyoming.

May 27, 1980.

Blair J. Trautwein of Hathaway, Speight & Kunz, Cheyenne, for appellant.

James W. Owens of Murane & Bostwick, Casper, for appellee Husky Oil Co.

W. W. Reeves of Vlastos & Reeves, P. C., Casper, and J. N. Murdock (argued) of Vlastos & Reeves, P. C., Casper, for appellees Darrell Kruljac and Frank Shubert.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellant-plaintiff (hereinafter Mora) brought a wrongful-death action against appellees-defendants premised on their alleged negligence in causing a fire at Husky Car-Truck Stop west of Rock Springs, in which fire Tommy Max Mora, Jr. (hereinafter Tommy) died. At the time, appellees-defendants Darrell Kruljac and Frank Shubert (hereinafter Darrell and Frank) were lessees of the service portion of the car-truck stop, and appellee-defendant Husky Oil Company (hereinafter Husky) was lessor of it. The fire was a gasoline fire, and it occurred in a mezzanine storage room of the building at a time when Tommy was the only occupant of the room.

In addition to leasing the service portion of the Husky Car-Truck Stop building to Darrell and Frank, Husky leased the cafe portion of it to a third party. The mezzanine was appurtenant to the bay area of the service portion, and it was over the cafe portion. The mezzanine was reached by stairs from the bay area. To prevent diesel smoke fallout from accumulating on the items stored on the mezzanine, Darrell and Frank enclosed a 12' X 16' room on the mezzanine with sheetrock. Within the room area was a Lennox furnace which was used to heat the cafe portion of the building. Motor oil, fuel antifreezing additives and toilet paper were stored in the room. A workbench and a cot were in the room. Employees of Darrell and Frank sometimes slept on the cot and played cards in the room before and after work. Tommy was an employee of Darrell and Frank. On October 20, 1974, Tommy arrived at the Husky Car-Truck Stop several hours early for work, having secured a ride with his brother who worked an earlier shift. Tommy was seen walking to the back of the station with about twenty-five cents worth of gasoline in a cut off plastic bottle; and about five to ten minutes before the fire, he carried out some sandwiches and soft drinks from the cafe. The fire started in the storage room. The first person to arrive at the fire saw the cot, Tommy and a sleeping bag on fire.

After the close of evidence, the court granted Husky's motion for a directed verdict. The jury returned a verdict in favor of Darrell and Frank. Mora appeals from the order directing the verdict and from the judgment entered on the jury verdict. Mora sets forth the issues on appeal as follows:

1. Did the trial court err in granting defendants' Motion in Limine with regard to Wyoming's Occupational Health and Safety statute?

2. Did the court err in (not) giving plaintiff's proffered instructions on the National Fire Protection Code which is incorporated as part of Wyoming Statutes pursuant to W.S. § 35-436.17 (1975 Cum.Supp.)? (Bracketed word added to conform the issue with the facts and with Mora's argument on the issue.)

3. Did the court err in not instructing on the invitee-licensee distinction to the jury?

4. Did the court err in granting a directed verdict in favor of defendant, Husky Oil Company?

5. Did the court err in allowing the expert hearsay testimony of Mr. Swan regarding Tommy Mora?

Since we do not find that the trial court erred in these respects, we affirm.

EXCLUSION OF OSHA AND NFPC REGULATIONS AND STANDARDS

The first two issues presented by Mora have to do with the trial court's rulings which allegedly excluded Mora from introducing into evidence certain regulations and standards promulgated by the Federal Occupational Safety and Health Administration and by the Wyoming Occupation Health and Safety Commission (both hereinafter OSHA) and certain code provisions of the National Fire Protection Code (hereinafter NFPC), and having to do with the trial court's refusal to give two instructions purportedly setting forth two of these regulations.

The trial court's order resulting from the May 11, 1978 pretrial conference included the following direction:

"3. The parties will advise the Court, on or before August 1, 1978, as to what facts they can stipulate and also any additional requested instructions, and particularly instructions as to pertinent laws and regulations."

On June 14, 1978, the trial court ordered Mora to answer three specified interrogatories by June 26, 1978. The interrogatories requested identification of the sections of the OSHA regulations and NFPC codes which Mora alleged were violated by Darrell and Frank. The order specified that failure of Mora to do so would preclude reliance on such sections at the trial.

With reference to compliance with the court order pertaining to submission of instructions, the two instructions which Mora contends were improper were submitted on September 26, 1978, the first day of the trial.

With reference to compliance with the court order pertaining to answers to the three interrogatories, Mora responded on June 15, 1978 by referring to section 7510 and subsection 7530 of the NFPC. On June 26, 1978 Mora supplemented the response by listing sixteen sections and sections 6.a. through 6.j. of the Wyoming Occupational Health and Safety Commission Rules and Regulations, nine additional bulletins of NFPC, and 29 C.F.R. 1910.106, 1910.156, 1910.157 relative to Federal Occupational Safety and Health Administration Regulations. Darrell and Frank argue that this supplemental response was not within the spirit of the court order, being general in fashion with the regulations there listed actually consisting "of several hundred pages and whole pamphlets of the NFPA."

On September 22, 1978, Darrell and Frank filed a motion in limine in which a limitation was requested upon injection of OSHA or NFPC regulations into the trial except the NFPC sections referred to in Mora's June 15, 1978 response to the interrogatories. The record does not reflect an order relative thereto; but in a colloquy at "You were told that you could not use the OSHA regulations because you did not specify the specific segments there that you intended to rely upon, and I think I've already ruled on it and that's what it's going to be."

the bench during the testimony of the seventh witness, reference was made to a hearing on the motion and the court commented:

On the basis of that which we have before us, it would seem that the trial court had determined that Mora had not complied with its previous order relative to proper designation of the sections of OSHA and NFPC upon which she intended to rely. The section and subsection referred to in Mora's June 15, 1978 response to the interrogatories were referred to and used by Mora's expert witness. The sanction imposed by the court was pursuant to Rule 37(b)(2)(B), W.R.C.P. Broad discretion is given to the trial court with regard to sanctions, Craig v. Far West Engineering Company, 9th Cir. 1959, 265 F.2d 251, cert. den. 361 U.S. 816, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959), even to the point of dismissing the action, National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). The parties were again made aware of the trial court's attitude with reference to timely compliance with its orders by an order made on September 5, 1978, in which it stated that:

"2. No witness or exhibit not named or listed in the Joint Statement may testify or be offered at the trial if application was not made to the Court, and so ordered by the Court, prior to August 27, 1978. * * *

"3. No instructions concerning violations of any statute or regulation not submitted to this Court prior to August 1, 1978, as ordered by the Court, will be given."

In any event, any evidence relative to the challenged rules, regulations and codes could not have been made a basis for an instruction relative thereto inasmuch as such instructions were submitted by Mora almost two months after the deadline set in the pretrial order by the trial court for doing so. The complaint was filed in this case on February 12, 1976. After two years in which to prepare for trial, the time set by the court for submission of instructions cannot be said to be unreasonable. Mora failed to comply with the timetable set forth in the court's order. The order was not arbitrary or an abuse of discretion. See Martinez v. State, Wyo., 611 P.2d 831, (1980), re abuse of discretion. It was not error for the court to refuse to give Mora's two instructions which were not timely submitted. ¹ Evidence concerning application of rules, which rules cannot be the subject of instructions, would be without purpose.

FAILURE TO INSTRUCT ON INVITEE-LICENSEE DISTINCTION

The trial court instructed the jury that Tommy was a licensee upon the premises at the time of the fire, and it recited the duty of care owed to him.

Mora did not object to the instruction, and Mora did not offer another instruction with respect to such status.

The instruction therefore became the law of the case. Pure Gas and Chemical Company v. Cook, Wyo., 526 P.2d 986 (1974); Texas Gulf Sulphur Company v. Robles, Wyo., 511 P.2d 963 (1973); Cox v. Vernieuw, Wyo., 604 P.2d 1353 (1980).

Error may not be assigned in such instance.

" * * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly...