Walcott v. Total Petroleum, Inc.

• Citation: 964 P.2d 609
• Decision Date: 20 August 1998
• Docket Number: No. 97CA0966,97CA0966
• Parties: 98 CJ C.A.R. 4422 Brenda WALCOTT and Dean Walcott, Plaintiffs-Appellants, v. TOTAL PETROLEUM, INC., a Michigan corporation, Defendant-Appellee. . II
• Court: Court of Appeals of Colorado

Page 609

964 P.2d 609

98 CJ C.A.R. 4422

Brenda WALCOTT and Dean Walcott, Plaintiffs-Appellants, v. TOTAL PETROLEUM, INC., a Michigan corporation, Defendant-Appellee.

No. 97CA0966.

Colorado Court of Appeals,

Div. II.

Aug. 20, 1998.

Rehearing Denied Oct. 22, 1998.

Certiorari Pending (98SC738).

Deisch & Marion, P.C., Michael B. Marion, Michael R. Smith, Denver, for Plaintiffs-Appellants.

Burg & Eldredge, P.C., David R. Hersh, Rosemary Orsini, Englewood, for Defendant-Appellee.

Opinion by Judge BRIGGS.

Plaintiffs, Brenda and Dean Walcott, appeal the summary judgment entered against them and in favor of defendant, Total Petroleum, Inc. (Total), on their claims for personal injuries. We affirm.

Plaintiff Brenda Walcott was involved in an argument with a man at a motel. The man left the motel and went to a Total store. At a self-service pump, he dispensed a small amount of gasoline into a paperboard cup, paid for the gasoline inside the store, and returned to the motel. He threw the gasoline on plaintiff and set her afire, causing her severe injuries. The assailant was apprehended, charged, and convicted of attempted murder after deliberation, first degree assault, first degree arson, and fourth degree arson.

Plaintiffs filed this action against Total, asserting claims of negligence, negligence per se, negligent entrustment, negligence in conducting an inherently dangerous activity, product liability (failure to warn), strict liability in conducting an ultrahazardous activity, and loss of consortium. Total filed motions for summary judgment requesting that the court dismiss all claims.

As to the various negligence claims, Total argued that it owed no duty to plaintiffs to refrain from selling gasoline to the assailant, that the sale was not a proximate cause of any injuries sustained, and that the assailant's actions were an independent intervening cause. Total sought dismissal of the product liability claim on the basis that the gasoline was neither defective nor unreasonably dangerous and that the cause of the injuries was the assailant's misuse of the product. Finally, Total argued that the sale of gasoline did not constitute an ultrahazardous activity.

The trial court first concluded that a gasoline vendor does not ordinarily have a duty to protect the general population from intentional criminal acts of persons who purchase gasoline and that the assailant's criminal conduct was unforeseen and unexpected. The court therefore dismissed the claims of negligence, negligence per se, negligent entrustment, and negligence in conducting an inherently dangerous activity. The court further ruled that the gasoline sold to the assailant was not in a defective condition unreasonably dangerous to the user or consumer and, finally, that selling gasoline was not an ultrahazardous activity.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. C.R.C.P. 56(c); see Casey v. Christie Lodge Owners Ass'n, 923 P.2d 365 (Colo.App.1996). The purpose is to permit the formal allegations of the pleadings to be pierced, saving the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail. Graven v. Vail Associates, Inc., 888 P.2d 310 (Colo.App.1994), rev'd on other grounds, 909 P.2d 514 (Colo.1995).

I.

Plaintiffs first challenge the trial court's dismissal of the claims for negligence, negligence per se, negligent entrustment, and negligence in conducting an inherently dangerous activity. We find no error in the trial court's ruling.

Negligence claims cannot succeed without showing that a duty existed and that the breach of the duty was a proximate cause of the injuries alleged. See Casebolt v. Cowan, 829 P.2d 352 (Colo.1992); Largo Corp. v. Crespin, 727 P.2d 1098 (Colo.1986).

The existence of a duty depends to a great extent on the foreseeability of a risk. See Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987). Likewise, foreseeability is the touchstone of proximate cause. See Ekberg v. Greene, 196 Colo. 494, 588 P.2d 375 (1978); Boryla v. Pash, 937 P.2d 813 (Colo.App.1996), rev'd on other grounds, 960 P.2d 123 (Colo.1998).

As a result, the concepts of duty and proximate cause are often interchangeable, and can be easily confused, when the analysis of both involves the common question of foreseeability. See generally W. Keeton, Prosser & Keeton on Torts § 42 (5th ed.1984); see also Sewell v. Public Service Co., 832 P.2d 994 (Colo.App.1991); Butala v. Automated Petroleum & Energy Co., 656 So.2d 173 (Fla.Dist.Ct.App.1995)(foreseeability plays a confusing role in the analysis of both duty and proximate cause); Restatement (Second) of Torts § 435 comment c (1965)(strictly, the problem before the court in determining whether an intervening cause is sufficiently extraordinary as to relieve the negligent actor of liability is one of determining whether the duty imposed on the actor was designed to protect the one harmed from the risk of harm created by the hazard in question; however, courts frequently treat such problems as problems of causation).

The question of duty is one of law for the courts. See Largo Corp. v. Crespin, supra. In contrast, the question of proximate cause is ordinarily one of fact for the jury and may be decided as a matter of law only when reasonable minds could draw but one inference from the evidence. Samuelson v. Chutich, 187 Colo. 155, 529 P.2d 631 (1974).

Nevertheless, at least when both duty and proximate cause are at issue, the determination under either concept of whether a risk was reasonably foreseeable as a matter of law depends in part on the common sense consideration of the risks created by various conditions and circumstances, see Taco Bell, Inc. v. Lannon, supra, and in part on the policy consideration of whether a defendant's responsibility should extend to the results in question. See generally W. Keeton, supra, §§ 41, 43 (this legal limitation is to some degree associated with the nature and degree of the connection in fact between the defendant's acts and the events of which the plaintiff complains; often to a greater extent, however, the limitation is associated with policy--with our more or less inadequately expressed ideas of what justice demands, or what is administratively possible and convenient); Restatement (Second) of Torts, supra, § 435 (when it appears to the court in retrospect that it is highly extraordinary that an intervening cause has come into operation, the court may declare such a force to be a superseding cause); see also Roberts v. Shop & Go, Inc., 502 So.2d 915 (Fla.Dist.Ct.App.1986)(though foreseeability will be decided as a matter of law only in cases where reasonable persons could not differ, in making that determination courts have employed notions of fairness and policy).

Here, no evidence was introduced indicating that gasoline dispensed at the filling station, in a cup or otherwise, had been used on prior occasions for intentional criminal purposes. Nor was any evidence introduced that otherwise indicated the purchaser would use the gasoline for such a purpose.

We therefore conclude that, whether analyzed under the rubric of duty or proximate cause, the risk that a purchaser would intentionally throw gasoline on a victim and set the victim on fire was not reasonably foreseeable. See Gonzalez v. Derrington, 56 Cal.2d 130, 14 Cal.Rptr. 1, 363 P.2d 1 (1961)(risk that purchaser of gasoline in open five gallon container would use it intentionally to set a tavern on fire was not reasonably foreseeable); Stafford v. Borden, 252 Ill.App.3d 254, 192 Ill.Dec. 52, 625 N.E.2d 12 (1993)(risk that purchaser of gasoline in an insecticide container would use it intentionally to set afire an apartment building was not reasonably foreseeable); Morales v. City of New York, 70 N.Y.2d 981, 526 N.Y.S.2d 418, 521 N.E.2d 425 (1988)(risk that purchaser of gasoline in a milk container would use it intentionally to burn down a social club was not reasonably foreseeable); cf. Taco Bell, Inc. v. Lannon, supra (several previous robberies); Ekberg v. Greene, supra (several previous acts of vandalism); see generally Restatement (Second) of Torts, supra, § 442B comment c, illustration 8 (when gasoline negligently spilled is then deliberately set on fire, the negligent actor is not liable). The same result obtains even assuming, without deciding, that Total was subject to the heightened standard of care the supreme court prescribed in Huddleston v. Union Rural Electric Ass'n, 841 P.2d 282 (Colo.1992), for inherently dangerous activities. See Roberts v. Shop & Go, Inc., supra (even if duty is to exercise highest degree of care, risk that purchaser of gasoline in an open pail would intentionally throw the gasoline on victims and set them on fire was not reasonably foreseeable).

Plaintiffs seek to have us reach a contrary conclusion in this case because of the assailant's behavior and appearance, as indicated in witness statements and excerpts from testimony submitted with the summary judgment pleadings. These indicated that one employee thought the assailant had arrived in a car with two other men. She could not see the assailant dispense the gasoline because he was "stooping over," or "crouching" behind a car.

The employee variously described the assailant when he came into the store as "agitated," "intoxicated," "high on drugs," "very neurotic," "hyper," or "just a fast talker." She could not "decipher one from the other." She did not do anything other than accept payment because she thought "they were just totally legitimate people like on a vacation or maybe going to work."

The other employee described the assailant as having blood-shot eyes with dilated pupils. She thought he was the driver of the car, and she believed he had been in the store three to...