Rossin v. Southern Union Gas Company

• Decision Date: 17 January 1973
• Docket Number: No. 72-1450.,72-1450.
• Citation: 472 F.2d 707
• Parties: Alice H. ROSSIN, for herself and others similarly situated, Plaintiff-Appellant, v. SOUTHERN UNION GAS COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

472 F.2d 707 (1973)

Alice H. ROSSIN, for herself and others similarly situated, Plaintiff-Appellant, v. SOUTHERN UNION GAS COMPANY, a corporation, Defendant-Appellee.

No. 72-1450.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted November 17, 1972.

Decided January 17, 1973.

John A. Mitchell, of Mitchell, Mitchell & Alley, Santa Fe, N. M., for plaintiff-appellant.

Seth D. Montgomery, of Montgomery, Federici, Andrews, Hannahs & Morris, Santa Fe, N. M. (William R. Federici, of Montgomery, Federici, Andrews, Hannahs & Morris, Santa Fe, N. M., on the brief), for defendant-appellee.

Before BREITENSTEIN, HOLLOWAY and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

In this diversity action the plaintiff, Alice H. Rossin, sought damages against Southern Union Gas Company growing out of alleged property injuries incurred by her as a result of discontinuance of the natural gas supply at her home in Tesuque, Santa Fe County, New Mexico, on January 6, 1971. Appellee, a Delaware corporation, is the holder of a franchise to provide natural gas in the Santa Fe area and in other sections of New Mexico.

The case was tried to the court, and following a full presentation of evidence by both sides a decision was rendered in favor of the gas company and against the plaintiff.¹

The relationship between appellant and the appellee dates back to 1934, at which time the original contract was entered into for the supply of natural gas to the home of appellant. The gas was supplied continuously until this present condition developed. The cutoff was for approximately 40 hours on January 7 and 8, and during this period plaintiff and her employees were required to utilize a number of fireplaces throughout the plaintiff's home to produce heat and to guard against the freezing of water pipes. She claims damages for injury to her property as well as impairment to her health.²

The theory on which the plaintiff sought recovery was that the defendant company had violated a duty owed, which duty arose from, first, a contract to furnish service and, secondly, a statutory duty imposed by the New Mexico Public Utility Act and, thirdly, a common law duty to serve. The court dismissed the count based upon the alleged common law obligation. Plaintiff's evidence in the case was to the effect that she entered into an agreement in 1934 with the gas company whereby it undertook to supply gas on a continuous basis to her home. The theory was that the company promised unconditionally to supply adequate gas for heating to her house and to do so indefinitely.

During the storm in question a gas company employee came to her house and turned off the valve and this produced this injury.

Plaintiff's testimony consisted entirely of the evidence of the plaintiff and her employees. She testified concerning the original contract undertaking and although she did not furnish a written agreement, she testified that a gas company employee had orally represented that she would receive "adequate gas and heating for all time." Following the turning off of the gas, she activated the fireplaces and set up electric heaters in order to prevent the freezing of the pipes. Other than that, her testimony consisted of a description of her special damages which are described in footnote 2 above. She finally testified that the experience left her exhausted and upset, necessitating her finally taking a vacation in Mexico City.

Her employees testified as to the efforts they made to repair the frozen pipe of the hot water heater and described also the freezing of the plants and the smoking of the walls by the fireplaces. No effort had been made, however, to drain the hot water heater after the gas was turned off.

The defendant's evidence consisted largely of explanation as to what had brought about the condition. The field superintendent testified that the extreme cold caused field compressors and other equipment to freeze whereby transmission was interrupted. Some of this equipment was under the control of independent producers which were selling gas to the company and their wells were located at distant points. The dispatcher testified that the company made every effort to monitor the transmission process and to balance supplies so that all regions would share equally. The regional manager testified regarding the failure of certain of the pumping station compressors. He attributed this failure in part to the cold, in part to the increased demand and in part to mechanical breakdowns. He said that all available supplies were used and that industrial and other unessential users were cut down so as to provide as much as possible to residential users. The station manager for the Santa Fe area explained that the gas was turned off at certain homes including the plaintiff's as a safety precaution so as to prevent explosions when the gas was finally turned on. When sufficient gas was available, he ordered crews to turn the gas on and to relight pilot lights.

The trial court found from all the evidence that the interruption was due to circumstances which were beyond the control of the gas company and "were not reasonably foreseeable." The court further found that the storm on January 2-8, 1971, was a unique, unprecedented and unforeseeable winter storm which "was unequaled in New Mexico climatological history in both intensity and duration. The storm was not forecast with the degree of accuracy necessary to give warning of its severity . . . ."

The court also found that the defendant and its employees "exercised reasonable care and diligence in the design, construction, installation, maintenance and operation of defendant's Northwest New Mexico system and in the furnishing of natural gas service to plaintiff."

There was evidence offered as to the temperatures during the period in question, and it was indeed cold. It was shown that out of 37 reporting stations there were 18 new record minimums, some reaching 35-45 degrees below zero. There were four lows which tied existing record lows. Within the City of Santa Fe the temperature reached -17 on January 6; -5 on January 3; -12 on January 4; -16 on January 5; and -16 on January 7. On January 8 the minimum temperature climbed to 6; 8 on January 9; and 18 on January 10. As to Santa Fe, the lows could not be regarded as record setting, for in January 1963 there was a storm in which the lows were comparable, although not quite as intense.

The meteorologist called on behalf of the defendant testified that the 1971 storm was more intense and of longer duration than any previous storm and that it was most severe in the western two-thirds of the state. One other aspect was that the storm struck suddenly.

According to the field superintendent's testimony, it was the extreme cold in the field which produced the problem, for in some areas the temperature reached as low as 40-45 degrees below zero, and this caused the oil in the compressors to congeal and made restarting them very difficult.

Plaintiff appeared to have relied on a theory of absolute liability; however, our examination of the New Mexico law seeking decisions which might sustain such a theory has failed. We have concluded that the appropriate legal theory is negligence. This was the standard which the trial court adopted.³

First, as to the count of the complaint which invoked the Public Utilities Laws, the trial court noted that § 68-6-2 of the New Mexico statutes requires a public utility to furnish adequate, efficient and reasonable service. This was interpreted by the court as requiring a performance which was reasonable but not absolute. We cannot say that Judge Payne was incorrect in ruling that the term "reasonable" imported a standard of reasonable care requiring the presence of fault as a prerequisite to liability.

The common law duty relied on appears also to have been based on a standard of reasonable care requiring a showing that the defendant was negligent. The appellant here argues that defendant knew or should have known that its supplies, reserves and distribution system were not adequate, and it was thereby negligent. It is true that the New Mexico law recognizes that there is a common law duty on the part of a utility to exercise reasonable care to render service to its customers. This was recognized by the New Mexico Supreme Court in Garver v. Public Service Co., 77 N.M. 262, 421 P.2d 788, 794 (1966), wherein the court said:

The defendant also had the duty to properly maintain its lines to avoid injury or damage to others, including the plaintiffs. Its failure to comply with this duty was actionable as a common law tort. See

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