Hegwood v. Virginia Natural Gas, Inc.

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

CHARLES J. HEGWOOD, ADMINISTRATOR, ETC.
OPINION BY
v. Record No. 972041 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
September 18, 1998
VIRGINIA NATURAL GAS, INC.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Marc Jacobson, Judge

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. ∗ 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

∗
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,
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.

the Administrator settled with the Marshalls and the Authority and
nonsuited the City.

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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

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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

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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

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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

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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."

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 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

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 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

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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."

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 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.

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 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.

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