Banks v. City of Richmond

Pamela of Richmond No. Record September All the Present: Justices S. brief), Keith Barker Freasier (Tuck, Herbig, & on for appellant.

William Joe Hoppe, City Attorney Assistant appellee. THOMAS, J., delivered the of Court. opinion action, In this tort Pamela Banks sued of Richmond City and damages resulting others1 for from an explosion of natural in her at the apartment Village Jefferson in Rich- Apartments mond. against in proceeded solely City a trial. At jury case, the conclusion of plaintiffs granted the trial court the City’s motion to strike. The trial court was of the view that the evidence failed to establish City “wrong that the had done anything proximately caused the accident.”

On Banks contends appeal, that the trial court erred in the fol- lowing three particulars:

(1) in failing to hold had legal duty that the City

make repairs of defective gas appliances pipes within the possession; consumer’s (2) in failing to hold that the to cut legal had City duty of it supply dwelling to which sup- gas once the was aware that was a

plied City there original partners The defendants included the individual of Tower Investment Com trading Stahl, Tower; pany, Village; Harry agent as Jefferson E. III of trial, City except and the of Richmond. Prior to Banks settled all with defendants of Richmond.

leak in or owned gas appliances pipes by consumer;

(3) of failing sufficiency in to resolve doubts regarding assuming in favor plaintiff

the evidence facts not in evidence.

The or did main contention that its acts omissions agree cause the We with there- proximately City; fore, negligent. we assume that the deciding without

Banks moved into the after 1981. apartment shortly July However, bulk explosion July occurred Bank’s evidence was based on events occurred her prior occupancy.

Charlotte Dickerson lived in the to Banks. apartment prior moved 1981. In Dick- Dickerson out mid-June September erson the smell of her began complaining apartment. From she nine February approximately late until made gas calls to which natural to her telephone City, supplied the Village in and to the rental office at Jefferson apartment complex, four which she of the Dickerson said that or complained problem. five times she out the and the oven to the pointed City furnace time, who to calls. the em- responded her Each check then her to call her rental ployee would those areas and tell office. cross-examination,

On clarified her ex- testimony, Dickerson concerning several the smell of that her plaining complaints her All the concerning one was made oven. gas, only complaint on She that the gas other her furnace. said complaints centered in mid-February the oven occurred only concerning complaint time told who checked her oven at that The City employee she leak her to tell her apartment her had a small and told gas maintenance department. apartment followed advice. The City employee’s

Dickerson the same day. man to Dickerson’s unit later the maintenance came oven, he could gas able to smell but When he checked the he was result, oven.2 to the not find leak. As a he turned off the and a meter cutting oven. The furnace, led off Because first to a all supply both of built-in, to supply oven was which the apartment to the top-burner were located in a at the end of the apartment. served four range. closet. The line continued from This is what was From there it line, separate items. The to it proceeded done. could pipe be cut to a water heater from the off without closet to off as as Dicker- long to oven remained turned Village son in the to re- promised remained Jefferson apartment. was done. the oven the oven but this never Once place off, was did her gas. During turned Dickerson not smell more no com- remaining apartment, time Dickerson had further concerning gas. the smell of plaints in,

After out before Bobby Dickerson moved but Banks moved Parker, Rae City gas water service specialist, inspected meter on the outside of the unit as of his duties in transfer- part ring the service to Banks. It was Parker’s turn on and job off at the meter. examination,

In direct Parker asked whether on the he day went to the he knew apartment there a “current at problem” the unit. He said that on that he did know not there was a day current problem. He was then by deposition testimony impeached said, where he “I was had told someone else that there was a current problem.” being After Parker testified fol- impeached, lows: “When I I apartment left the knew there was a current visit, problem there.” He went on to that on the of his say day cleaning told me had been a person problem there some “[t]he oven, said, kind there around the and I I will report it.” Parker said that on day further of his visit he did not smell any gas standing while to the doorway apartment talking cleaning He said he man. also did not inside the inspect apartment for a leak. He said he looked at the meter and observed the gauges were operating Parker normally. explained had the been gauges moving suggested fast that would have trouble. The was on when Parker He did turn it arrived. off. Nor he did notify anyone other than the rental office his conversation with the cleaning man. office,

At the rental cleaning Parker told a woman what the However, man had told him. The woman down message. wrote the Parker did not read what she wrote down. On form that Parker filed with City, the he noted that office maintenance was checking on the oven. 17, 1981, Agee

Jeanette worked at the rental office. On she July wrote concerning a note the read unit The note question. follows: “Gas smell. Check oven.” She did not remember who her gave the information. She said she the note in the slot placed man, for the it maintenance whose was to make job repairs. the did not work. When moved into the oven apartment, Banks to rental office. The rental office advised complained daily She the her that would fix the oven. someone On day,

The occurred on explosion July Harry Stahl, a at Village, working maintenance man for Jefferson was racks. While the oven and Stahl apartment replacing refrigerator the the oven did not was at Banks told him that work. apartment, it. Stahl went to the fur- She asked Stahl whether he could repair of pliers. nace room turned the on to the oven with a pair to Then he oven’s then left the unit light. get lit the Stahl pilot materials for work in the unit. When he returned he needed other to he smelled faint Stahl went the furnace room gas.” odor “[a] other in the and turned off the the oven. He did work unit to to on the oven. of minutes” then returned work couple “[a] When went the oven said he no longer Stahl back to he could Next, gas. smell he the front cover off to the thermostat to “took oven, oven, cigarette doors to the lit a the the two opened lit the to look inside the oven. lighter.” lighter He testified that he air, the through was blown instantly. followed He explosion kitchen, the the cabinets. through across kitchen Roberts, Bernard for the Engineer City, D. the Chief Utility testified the of the He said that his concerning cause in the flexible con- investigation large revealed “a rather leak necting to back of the oven. In his tubing” connected the the source of the fuel which caused opinion, explosion turned to the oven he oven area. He said when he connecting flexible hose. “hissing coming heard a sound” from the Roberts, connecting hose According to to prior explosion in the wall behind the oven. enclosed for the because explosion Banks contends liable when the July it did not turn off the at the meter on was a “current that there cleaning man told Banks says service to concerning gas apartment. problem” meter, was on the at the gas, failure turn that had the been argues further City. part no meter, not have occurred off could explosion turned at the cigarette lighter inspect used a matter how times Stahl many Thus, Banks, the failure to according the inside of the oven. of the explo- was a cause off turn sion. We disagree.

135 In Coleman cause is familiar. The definition of proximate 124, 131, 143, 267 S.E.2d 147 v. Oil 221 Va. Corp., Blankenship (1980), we said that:

“The cause of an event is that act or omission proximate which, in natural unbroken an and continuous sequence, cause, event, efficient intervening without produces which that event would not have occurred.” Jones, 519, 522, 851, Beale v. 210 Va. 171 S.E.2d (Quoting 853 Sorenson, 937, 932, In (1970)). v. 194 Va. 76 S.E.2d Huffman 183, (1953), 187 we defined cause different proximate slightly terms; there we follows: wrote as cause of an is or omission proximate that act injury

which causes or fails to an immediately prevent injury; another, act or omission occurring concurring or with with- out which the would not been inflicted. . . . injury have Jones, 39, 43, 153, In v. 104 (1905), Va. 51 S.E. 154 we Winfree explained “the term excludes the notion of the ‘proximate’ intervention of other and efficient between culpable agency the defendant’s dereliction and the loss.” In the case of Con- early Co., 44, 59, 467, nell v. &c. R. 93 Va. 24 S.E. Chesapeake, 469 (1896), we adopted though view that is answerable person for the of a fault which are if consequences natural probable, the fault to concur happens with and not something extraordinary foreseen, to be likely will not be answerable. person The more difficult is to the rules problem apply relating cause to the facts of proximate case. We have stated particular case must be decided its own facts necessarily upon “[e]ach 937, Huffman, circumstances.” 194 Va. at S.E.2d at 186. Simms, 808, 816, in Scott v. Similarly, 188 Va. 51 S.E.2d 253 (1949), we said that is no which yardstick by every “[t]here case may be measured and fitted into its In each place. proper case the is problem to be solved mixed considerations of upon sense, Further, logic, common justice, policy precedent.” Co., 62, 74, Oil Spence American Va. 197 S.E.

(1938), we noted that in resolving the cause question proximate one there exists an key questions whether intermediate that, cause disconnected from the fault primary self-operating, caused the injury. to the facts of foregoing

When we considerations apply cause of this explosion this case it is clear that the proximate July not the failure to turn off the all, If was a cause at it was a remote cause. was the manner in which cause of this explosion to determine what was wrong the maintenance man undertook with the oven. It was Stahl’s caused immediately misconduct, not the Absent Stahl’s there would have explosion. been an explosion. been cut off at the meter gas that had the complains Yet, “but for” simplistic

there would have been no In Wyatt does not resolve the cause argument proximate question. 470, (1932), 163 S.E. 370 we Company, Va. Telephone similar a was rejected argument telephone pole that because collision with it was the cause of a negligently placed proximate that the latter did not follow from the former. We said pole. overlooks the fact that when Stahl was asked Banks’ approach to off gas whether he could fix the oven the the oven was supply turned on and had been off for months. was purposefully wrong. as to find out what was Stahl’s effort part oven, no to examine the steps In on the Stahl took checking He did not contact the mainte- gas. oven before he turned on the determine whether there was a nance office or the rental office to off. He turned on being simply reason for the oven’s turned kitchen, oven, then odor of in the smelled the faint Thereafter, he an open turned the to the oven off. placed before he had certain flame a confined area where minutes knowledge of the presence gas. man will

It is not foreseeable that a maintenance reasonably Stahl, used search for a leak with fire. Given the procedure legally off at the meter is not the fact that the was turned to determine what Stahl was of the view that significant. obviously when he oven he had to see what wrong happened with the that of so gas. entirely superseded turned on the Stahl’s conduct Stahl’s conduct it alone produced injury. act that affected and intervening amounted to an independent 939, at See 194 Va. Huffman, the immediate of the injury. cause facts surrounding explo 76 S.E.2d at 188. Given the actual sion, was nothing failure to turn See Hubbard v. of the explosion. more than a mere circumstance (1939). 3 S.E.2d 397 Murray, 173 Va. manner in which extraordinary stated that the Spence,

In we being actor’s conduct from harm occurs may prevent primary (a) relied Comment an event. We proximate upon cause of (1934). That comment provides Restatement of Torts § oc- manner in which the harm pertinent as follows: part “[T]he the actor’s con- curs may extraordinary prevent be so highly duct factor in it about.” bringing Spence, from a substantial being Stahl 171 Va. at S.E. at 474. This is such a case. What did was It overshadows completely any- “highly extraordinary.” thing did. that the City cause are for the jury.

Normally, questions However, where facts are not in and reasonable men dispute facts, could not differ inferences to be drawn from the as to the the issue can be resolved of law. See Hubbard v. Mur as matter 173 Va. ray, at 3 S.E.2d at 402. There was no here dispute concerning Stahl’s activities. think that reasonable men We do not could differ concerning the facts and the inferences to be drawn therefrom. we will affirm the trial court’s Consequently, judgment that struck evidence. plaintiff’s

Affirmed. STEPHENSON, J., dissenting. that, holds majority of the irrespective City’s negligence, was, law,

Stahl’s as a matter the sole intervening negligence proximate cause of Banks’ injuries. Because I believe evidence ex- ists from which a could find that the jury negligent and that its negligence was a cause of I proximate injuries, Banks’ conclude that the trial court erred in to submit the failing case to the jury.

It is well established that there can be more than one proximate cause of an event. Coleman Oil 221 Va. Blankenship Corp., 124, 131, 143, 267 S.E.2d 147 An (1980). intervening cause will supersede defendant’s if his negligence contrib- utes “in slightest Id. degree” produce injury.

In cases involving negligence, concurrent the actors’ compara- considered, tive degrees of fault should not be “each liable being for the whole even the other though or con- equally culpable, tributed in Elliott, a greater degree to the Maroulis v. injury.” 503, 510, 207 339, cause, Va. 151 S.E.2d 344 (1966). Proximate 138 term,

as a closeness or nearness in causal connection legal implies se- or nearness in of time or point physical rather than closeness Hale, 416, Power Co. v. 133 Va. quence Appalachian events. 426, 711, (1922). 113 S.E. 713 issues for a cause are

Negligence ordinarily when rea- A court decides these issues jury’s only determination. 106, 109, minds cannot differ. Meeks v. 226 Va. Hodges, sonable 879, Indeed, (1983). 306 S.E.2d 881 we have said: challenged When the of a evidence is sufficiency plaintiff’s by strike, motion to the trial court should resolve reason- any of the evidence in sufficiency plaintiff’s able doubt as to the favor and should the motion when it grant only conclusively of action that has no cause appears plaintiff proved defendant, or when it against plainly appears verdict trial court would be to set aside found compelled without evidence to it. being support the plaintiff Raines, 947, 951, Va. 265 S.E.2d Newton v. & 220 Veney DHA, 138, 140, Va. (1980); accord Inc. v. Leydig, S.E.2d when a trial court strikes a (1986). plain- Finally, evidence, in- tiff’s we view and all reasonable must that evidence light ferences which could be drawn therefrom in the most Meeks, 226 Va. at 306 S.E.2d at favorable the plaintiff. case, In this is a a substance gas, defendant supplier which is such a is not an inherently dangerous. Although supplier insurer, of care than higher the law him a standard imposes upon merchandisers. Once a has supplier on other imposed point at a knowledge escaping point past meter, i.e., to cut duty has the supplier’s supplier delivery, customer, the meter until warn the and leave closed supply, or the customer. the leak has been either repaired, supplier Indeed, its service regulation employees own requires leaks in the service of and provide “[ljocating repairing If the and house when no material required.” appliances piping material, is to the City’s policy of a leak the use repair requires off the and to cut appliance a “red on the defective place tag” is not to be indicates that the tag appliance at the meter. The red made, em- City are a until are made. After repairs repairs used is in satis- repaired appliance If the ployee inspects appliance. order, back in service. it is factory working placed A leak in Banks’ oven. of a knowledge had actual City months before the ex- the leak four had discovered City employee another employee to the explosion, Just twelve plosion. days prior however, fol- Neither employee, problem. informed cutting and tagging” appliance lowed of “red the City’s policy how- months before the (Two explosion, off the the meter. gas at ever, furnace of the leak had found another City to its pursuant same and cut apartment policy.) view,

In have foreseen the should my possibility to its not be might timely leak reported landlord; con- into the properly by escaping repaired environment; fines of a volatile would create apartment friction, static or a caused metallic spark by electricity, match struck smoker could cause an cigarette

I believe which a reasona- jury evidence from presented bly could conclude that the concurred with that City’s negligence of Stahl to cause her If the I cannot injuries. negligent, “in say a matter of law that its did not contribute I slightest degree” injuries. Banks’ believe the case produce should have been submitted jury to the under instructions proper I would respecting negligence Accordingly, cause. reverse the for a trial on the judgment remand the case merits.

POFF, J., in dissent. joins

Case Details

Case Name: Banks v. City of Richmond

Court Name: Supreme Court of Virginia

Date Published: Sep 5, 1986

Citation: 348 S.E.2d 280

Docket Number: Record 830311

Court Abbreviation: Va.