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HEGWOOD v. VIRGINIA NATURAL GAS


HEGWOOD v. VIRGINIA NATURAL
GAS


September 18, 1998
Record No. 972041

CHARLES J. HEGWOOD, ADMINISTRATOR, ETC.

v.

VIRGINIA NATURAL GAS, INC.

OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Marc Jacobson, Judge

PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Stephenson, Senior Justice

The principal issue in this appeal is whether the trial court
erred in striking the plaintiff’s evidence. Two other issues
involve the trial court’s rulings on evidentiary matters.

I

Charles J. Hegwood, Administrator of the estates of four
decedents, William E. Dempsey, William E. Staton, Julia M.
Dempsey, and Lakeshia Dempsey (the Administrator), instituted
separate wrongful death actions against Virginia Natural Gas,
Inc. (the Gas Company) and others, seeking damages in the amount
of $5,000,000 in each action.[1] The Administrator alleged that
the decedents had died as a proximate result of the Gas Company’s
having exposed them to a fatal level of carbon monoxide gas.
The trial court consolidated the four actions for discovery and
trial. The case was tried to a jury, and, at the conclusion of
the Administrator’s evidence, the trial court struck the evidence
and entered final judgment in favor of the Gas Company. We
awarded the Administrator this appeal.

II

Julia Dempsey, the tenant, and her two children, Lakeshia, age
15, and William, age five, lived in low-income, federally
subsidized housing in the City of Norfolk. William Staton,
Julia’s friend, also lived with Julia from time to time.
Gas service was initially supplied to the residence in Julia’s
name in May 1991. The water heater, boiler, and range were gas
fired and located in the kitchen. In February 1992, Julia was in
arrears in her payments to the Gas Company, and, on February 10,
1992, the Gas Company discontinued its service to the premises by
cutting off the supply of gas at the exterior meter, the Gas
Company’s "delivery point."
On March 11, 1993, after the arrearages had been paid, the Gas
Company’s service mechanic, Patrick Paul Palumbo, Jr., restored
the gas supply. Palumbo removed the exterior meter lock and
turned the valve, thereby allowing gas to flow into the house.
Palumbo then checked the gas-fired appliances in the house. He
checked the range and determined that it was operating
satisfactorily; therefore, he left on the gas supply to the
range. Palumbo, however, discovered that the exhaust from the
water heater was not properly venting the combustion gases. The
combustion gases were "backdrafting" into the house
rather than exiting the house through a vent pipe connected to a
chimney. Palumbo knew that a "backdrafting" appliance
can form carbon monoxide and create a "life
threatening" situation. Therefore, he turned off the gas
supply to the water heater at the control valve on the appliance
and at the valve on the fuel line leading to it.
When Palumbo checked the boiler, he discovered that it was
inoperable due to a defective thermostat. Consequently, Palumbo
shut off the gas supply to the boiler at the control valve on the
boiler and at the valve on the fuel line leading to it.
Palumbo did not determine the reason the water heater was
"backdrafting." He knew that the venting systems for
the water heater and the boiler used a common chimney. He also
knew that an obstructed or clogged chimney could cause
"backdrafting."
Palumbo attached a "red tag" to the shut-off valve on
the fuel line leading to the water heater. The red tag stated
that "THIS METER OR APPLIANCE MUST NOT BE TURNED ON UNTIL
THE CONDITION INDICATED BELOW HAS BEEN CORRECTED." The red
tag was left at the premises, and a red tag receipt was kept as a
Gas Company record. Palumbo noted on the red tag and on the red
tag receipt that the water heater was an "Unsafe
appliance" because it was "Backdrafting" and that
the gas supply to it had been shut off. He also made a notation
on the red tag and the red tag receipt indicating that he had
"left off" the boiler due to a "Defective
T-stat." Palumbo had William Staton sign the red tag
receipt, and he explained the problems to Staton and directed him
not to use the appliances.
Sometime after March 11, 1993, the defective water heater and
boiler were turned on by an unidentified person or persons. On
December 12, 1994, all three family members and Staton were found
dead in the house, and the house was filled with noxious gas.
According to investigators from the Norfolk Fire Department,
there was a heavy and extensive build-up of "soot" or
"unburned carbon" on the walls and ceiling of the
kitchen as well as in other rooms in the house. The investigators
opined that this condition resulted directly from
"backdrafting" caused by incomplete combustion,
resulting in unburned carbon drafting back into the house. The
heaviness of the soot deposits indicated that the condition had
built up over a "long" time. The investigators examined
the interior of the chimney to which the appliance vents were
connected. They found that there were large collections of fallen
bricks, leaves, and debris obstructing the chimney. According to
the investigators, this condition caused both the water heater
and boiler to "backdraft."
James V. Powell, Jr., testified as an expert for the
Administrator. Powell is a chemical engineer who had been engaged
in the heating and air-conditioning field since 1949. Powell
opined that the blocked chimney caused the
"backdrafting" of both appliances that in turn created
carbon monoxide as a result of incomplete combustion.
A vice president of the Gas Company, called as an adverse witness
by the Administrator, testified that the Gas Company operated
under "Terms and Conditions" approved by the State
Corporation Commission. These Terms and Conditions included a
provision that the Gas Company’s customer shall be responsible
for the maintenance and repair of the customer’s piping,
appliances, and equipment on the customer’s side of the Gas
Company’s metering equipment.

III

The Administrator contends that the trial court erred in
excluding certain opinions of his expert, James V. Powell, Jr.
The court excluded Powell’s opinions that (1) the Gas Company
should have cut off the gas supply at the exterior meter, (2) the
red tag was inadequate to properly and effectively warn of the
dangers, and (3) the obstructed condition of the chimney which
existed on December 12, 1994, was the same condition that existed
on March 11, 1993, and was the cause of the
"backdrafting."
Whether a witness may render an opinion as an expert is a matter
that rests within the sound discretion of a trial court. The
trial court’s ruling will be reversed only where the court has
abused its discretion. Brown v. Corbin, 244 Va.
528, 531, 423 S.E.2d 176, 178 (1992); Philip Morris
Incorporated
v. Emerson, 235 Va. 380, 411, 368 S.E.2d
268, 285 (1988); Landis v. Commonwealth, 218 Va.
797, 800, 241 S.E.2d 749, 750-51 (1978).
With respect to Powell’s opinion that the Gas Company "should
have
" discontinued the gas supply at the meter, the
trial court observed that this was "simply [Powell's] opinion and [was] not based on his knowledge of industry
standards or practices." The record indicates that, although
Powell had been in the business of designing, installing, and
repairing commercial heating systems, he was not an expert in the
utility business and was not conversant with the gas industry’s
standards or practices. We cannot say, therefore, that the trial
court abused its discretion in excluding this opinion.
The Administrator also claims that the trial court erred in
excluding Powell’s opinion that the boiler should have been red
tagged for "backdrafting" by the Gas Company’s
mechanic, Palumbo. Powell reasoned that Palumbo should have known
that, if the water heater were "backdrafting," then the
boiler also would have been "backdrafting" because the
two appliances were vented into the same chimney. Powell’s
opinion was based upon an assumption that the condition in the
chimney that caused the water heater to "backdraft" on
March 11, 1993, also would have caused the boiler to
"backdraft" had it been operable. Powell conceded,
however, that there were potential causes for the water heater to
"backdraft" which would not have caused the boiler to
"backdraft." Powell also conceded that Palumbo did not
know that the boiler was "backdrafting" because he
could not get the boiler to operate due to a defective
thermostat.
The trial court observed that there was nothing in the record to
support Powell’s assumption that the chimney was in the same
condition on March 11, 1993, as it was some 20 months later when
the decedents’ bodies were discovered. The court concluded,
therefore, that Powell’s opinion was premised upon an
insufficient factual basis and was speculative. Again, we cannot
say that the trial court abused its discretion in excluding
Powell’s opinion about Palumbo’s failure to red tag the boiler.
It follows, therefore, that the trial court also did not abuse
its discretion in refusing to allow Powell to opine that, because
the chimney was found to have been clogged in December 1994, the
chimney was likewise clogged on March 11, 1993. The trial court
properly reasoned that such testimony was too speculative to be
probative. See Mary Washington Hosp. v. Gibson,
228 Va. 95, 100, 319 S.E.2d 741, 744 (1984).

IV

The Administrator next contends that the trial court erred in
refusing to allow his counsel to call and cross-examine as
adverse witnesses three Gas Company employees. Pursuant to Code
? 8.01-401(A), "[a] party called to testify for
another, having an adverse interest, may be examined by such
other party according to the rules applicable to
cross-examination."
Although the statute specifically refers only to a
"party," we have held that it permits any litigant to
call and cross-examine any person, though not a party litigant,
"having an adverse interest." Butler v. Parrocha,
186 Va. 426, 431-32, 43 S.E.2d 1, 4 (1947) (decided under
predecessor statute). A person who has a financial or other
personal interest in the outcome of the litigation is deemed to
have an adverse interest. Id. at 432, 43 S.E.2d at 4. We
have not held, however, that, merely because a witness is an
employee of a party litigant, the witness is per se
adverse. A trial court is given wide discretion in deciding how a
witness may be examined, and its decision will not be disturbed
on appeal unless the record shows that the court abused its
discretion or the complaining party has been substantially
harmed. Id. at 433, 43 S.E.2d at 5.
In the present case, the trial court properly ruled that the
employees were not per se adverse witnesses. The
court indicated to the Administrator’s counsel that the witnesses
would be examined in the "normal course," unless and
until their testimony suggested that they did have adverse
interests or they proved to be hostile witnesses. Nothing in the
record suggests, nor does the Administrator contend, that any of
these witnesses had any adverse interests or were hostile to the
Administrator. We cannot say, therefore, that the trial court
abused its discretion or that the Administrator has been
substantially harmed by the court’s ruling.

V

Finally, the Administrator contends that the trial court erred
in striking his evidence at the conclusion of his case-in-chief.
Ordinarily, negligence and proximate cause are issues to be
decided by a jury. However, when reasonable minds could not
differ about the result, they become issues of law to be decided
by a court. Poliquin v. Daniels, 254 Va. 51, 57,
486 S.E.2d 530, 534 (1997).
The Administrator asserted that the Gas Company was negligent in
(1) supplying its customer’s lines with gas when it had actual
knowledge of dangerous defects in the customer’s appliances and
(2) failing to adequately warn the occupants of the premises of
the defects.
Generally, a utility, such as a natural gas company, is not
responsible for a dangerous defect in a customer’s equipment or
appliance beyond the company’s delivery point. However, when a
company has actual knowledge of a dangerous defect in a
customer’s equipment or appliance, it has a duty to exercise
reasonable care to shut off the service to such equipment or
appliance. See VEPCO v. Daniel, 202 Va. 731,
735, 119 S.E.2d 246, 249 (1961) (duty of electric power company).
The company also has a duty to warn the occupants of the premises
of the known dangerous defect. See Holcombe v. NationsBanc,
248 Va. 445, 447, 450 S.E.2d 158, 159 (1994) (premises
liability); Owens-Corning Fiberglas Corp. v. Watson,
243 Va. 128, 134, 413 S.E.2d 630, 634 (1992) (products
liability). If the company fails to perform either or both of
these duties, it is negligent.
In the present case, the Gas Company’s mechanic inspected the
customer’s appliances before restoring the gas supply. He
discovered that the customer’s water heater had a dangerous
defect, as it was "backdrafting." Consequently, he cut
off the gas supply to the water heater at both the control valve
on the water heater and at the valve on the fuel line leading to
it.
The mechanic also found that the customer’s boiler would not
operate due to a defective thermostat, a condition that was not
necessarily dangerous but that required repair. Therefore, he
shut off the gas supply to the boiler at the control valve on the
boiler and at the valve on the fuel line leading to it.
The mechanic then attached a red tag to the shut-off valve on the
fuel line leading to the water heater. The red tag contained the
following warning: "THIS METER OR APPLIANCE MUST NOT BE
TURNED ON UNTIL THE CONDITION INDICATED BELOW HAS BEEN
CORRECTED." The "condition indicated" on the red
tag was that the water heater was an "unsafe appliance"
because it was "backdrafting." The red tag also
informed the occupants that the gas supply to the water heater
had been shut off. The mechanic also noted on the red tag that
the boiler was "left off" due to a "Defective
T-stat."
The mechanic explained the appliances’ defects to Staton, one of
the adult occupants of the premises. He told Staton not to use
the appliances, and Staton signed a receipt for the red tag.
The mechanic also found that the customer’s cooking stove was
operating properly. Therefore, he left on the gas supply at the
meter so that the customer could use the stove.
Sometime thereafter, in spite of the mechanic’s warning, someone
other than a Gas Company representative turned on the gas supply
to the two defective appliances. It is not known whether one or
both of the appliances produced the carbon monoxide that caused
the fatalities.
The Administrator contends that the Gas Company was negligent in
failing to shut off the gas supply at its meter. In rejecting
this contention, the trial court observed that, under that
standard, a utility would be required to shut off the gas supply
to an entire house "any time the company knew a single
appliance might be unsafe." The court noted that, "[i]f
this occurred during the winter time, the house would be without
heat, hot water or any other gas services [to appliances] that
were functioning properly." We agree with the trial court.
The Administrator also contends that the Gas Company’s warning
was inadequate. We do not agree. We think the mechanic’s oral and
written warnings fully alerted the occupants of the premises of
the defects in the appliances.
We hold, therefore, that, when the Administrator’s evidence and
the reasonable inferences deducible therefrom are viewed in the
light most favorable to the Administrator, the evidence fails, as
a matter of law, to present a prima facie case of
negligence by the Gas Company. It is undisputed that the Gas
Company’s mechanic, upon discovering the appliances’ defects,
took appropriate action to shut off the gas supply to the
defective appliances and properly warned the occupants of the
defects.
Accordingly, we will affirm the trial court’s judgment.
Affirmed.

FOOTNOTES:

[1] The other defendants were
Suzanne and Dale W. Marshall, Julia Dempsey’s landlords, the
Norfolk Redevelopment and Housing Authority (the Authority), and
the City of Norfolk (the City). Prior to trial, the Administrator
settled with the Marshalls and the Authority and nonsuited the
City.

 

 

 

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