Opinion
No. 76-448
Decided June 30, 1977. Opinion modified and as modified petition for rehearing denied September 15, 1977.
Minor plaintiffs in personal injury action were injured in flash fire that occurred when one plaintiff struck match as he entered defendant's service station restroom where vandals had earlier broken gas pipe to heater. From jury verdict for plaintiffs, defendant appealed.
Reversed
1. NEGLIGENCE — Vandalism — To Defendant's Premises — Defendant — Without Knowledge — Dangerous Condition — Sufficient Time — Take Protective Action — — No Liability. Where, in negligence action, evidence indicated that copper tubing which supplied gas to a heater in restroom of gas station operated by defendant had been broken by vandals thereby causing gas to accumulate inside the restroom, and where that gas was ignited when, sometime later, one of the plaintiffs struck a match as they entered the restroom, thereby causing a flash fire, since the gas heater had been used to supply heat for the restroom for approximately 10 years without incident, and since the record is devoid of evidence that prior acts of vandalism of the station had created any dangerous conditions for defendant's patrons, the realities of everyday experience dictate that it is unreasonable to require defendant to anticipate not only which of his facilities vandals might strike, but also the type of damage they might inflict; hence, without evidence that defendant knew or should have known of the dangerous condition created by the vandals in sufficient time to take corrective action to prevent injuries to the plaintiffs, there is no liability for the injuries incurred by them.
Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.
Kenneth N. Kripke, for plaintiffs-appellees.
Madden Strate, P.C., William J. Madden, for defendant-appellant.
Plaintiffs initiated this action to recover damages for burns received by Michael Ekberg and Donald Talamantes from a flash fire emanating from the restroom at defendant's service station. Judgment was entered upon a jury verdict for plaintiffs and defendant appeals. We reverse.
The record reflects the following sequence of events. Defendant had operated the service station in question for approximately 25 years prior to the flash fire. On November 16, 1974, there was only one operative restroom at the station. Access to the restroom was available through a door located on the side of the station building. For approximately 10 years the restroom had been heated by a natural gas heater during the winter months, and approximately two weeks before the fire, defendant had reinstalled the heater in the restroom. However, the heater had not been turned on because the weather conditions were not adverse.
The heater was 14" tall, 2' wide, and approximately 6" in depth. It was installed parallel with the wall near the entrance to the restroom, and was connected to a gas line in the wall by copper tubing situated approximately 13" above the floor behind the heater. A valve located on the heater was used to turn the heater on and off. There was no vent for the heater other than two windows in the restroom.
On the night of November 16, defendant closed his station at 5 p.m. and left. Although defendant testified that he locked the restroom, he also admitted that the lock could be forced easily. There was other testimony that the restroom was never locked. In any event, no gas was leaking from the heater at the time the station closed on November 16.
At approximately 8:30 p.m., Ekberg (then age 15) and Talamantes (then age 13) entered a nearby restaurant and thereafter were directed to leave by the restaurant manager. They went from the restaurant to the service station in order to use the restroom. Ekberg was the first to arrive at the door of the restroom, and Talamantes and another young man were following him. Ekberg partially opened the door to the restroom, stopped to strike a match in order to light a cigarette, and a flash fire occurred which injured all of the boys.
Subsequent investigation disclosed that the copper tubing which supplied gas to the heater had been broken, causing gas to accumulate inside the restroom. The gas was ignited when Ekberg struck the match. While the copper tubing was broken by force, there was no evidence tending to establish that these young men were the perpetrators of the damage to the heater. Rather, approximately 45 minutes to one hour prior to the flash fire, one of the employees at the restaurant observed other young men at the service station premises and noted that one of these men had exited the restroom.
Construing the evidence and all attendant inferences in a light most favorable to the verdict, see Keifer Concrete, Inc. v. Hoffman, 193 Colo. 15, 562 P.2d 745 (1977), plaintiffs point to the following evidence as supporting imposition of liability upon defendant for creating an unreasonable risk of harm to persons on the station premises. Defendant maintained the restroom for the use and benefit of the public. People were in the habit of coming from a nearby shopping center across the street to use the restroom, and plaintiffs themselves had used it on various occasions. Defendant was aware that young people lived in the neighborhood, but there was no fence around the property, and there were no signs of any kind restricting the use of the property or warning of danger. The gas heater was fed through a 28" to 30" soft copper pipe, fastened by the defendant himself, in a jerry-built manner to a rigid brass outlet. There was no automatic shutoff valve controlling the gas at or near the brass outlet as a safety measure. The soft copper tube was unsupported and extended several inches from the wall, such that the installation was described as "precarious." Vandalism had been committed in the restroom and other areas of the station previously. Despite the fact that vandalism had been perpetrated on the service station in the past, there was no padlock or other security devices to prevent persons from entering the restroom after the station closed.
Defendant first contends that the trial court should have granted its motion for directed verdict on the issue of liability. We agree.
Preliminarily we note that plaintiffs did not contend at trial that it was unnecessary for them to establish defendant's actual or constructive notice of a dangerous condition in the restroom. Cf. Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972); Kerby v. Flamingo Club, Inc., 35 Colo. App. 127, 532 P.2d 975 (1975). Nor is there any evidence that a natural gas heater is a dangerous instrumentality per se. See Annot., 72 A.L.R.2d 865. Thus, the jury was instructed pursuant to Colo. J.I. 12:10 (1976 Supp.) that in order for defendant to be liable for the injuries sustained, it must appear that he knew, or reasonably should have known, of the existence of a dangerous condition in sufficient time to have corrected it.
We know of no pertinent Colorado appellate decisions dealing with the liability of a landowner for dangerous conditions created upon his property by the acts of vandals. Cf. Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167 (1961). However, in Pulka v. Edelman, 40 N.Y.2d 781, 358 N.E.2d 1019 (1976), the New York Court of Appeals recently observed:
"Although it is reasonable to require one person to be responsible for the negligent conduct of another in some instances, it is unreasonable to impose that duty where the realities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the negligent conduct."
We find this reasoning particularly persuasive where, as here, a business proprietor is charged with liability for injuries resulting from a dangerous condition created upon his property by the acts of vandals.
[1] We recognize that a business proprietor may be deemed to have constructive notice that vandals may strike his business premises because they have done so in the past, and it is conceivable that his method of doing business could be such that dangerous conditions upon his property resulting from the acts of vandals would be considered continuous or easily foreseeable. However, in the present case the gas heater had been used to supply heat for the restroom for approximately 10 years without incident. Additionally, the record is devoid of evidence that prior acts of vandalism at the station had created any dangerous conditions for defendant's patrons. Under these circumstances, the realities of everyday experience dictate that it is unreasonable to require defendant to anticipate not only which of his facilities vandals might strike, but also the type of damage they might inflict. Hence, we hold that without evidence that defendant knew or should have known of the dangerous condition created by the vandals in sufficient time to take corrective action to prevent injuries to these plaintiffs, there is no liability for the injuries incurred by them.
By reason of the foregoing, we need not consider the other allegations of error raised by defendant.
Judgment reversed and cause remanded with directions to the trial court to enter judgment dismissing plaintiffs' complaint.
JUDGE ENOCH and JUDGE KELLY concur.