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Abraham v. Great Western Energy11/24/2004
am] was not alerted to the presence of gas when he was attempting to light pilot light and (2) [GWE and Big Horn] failed to perform inspections to ascertain whether the gas system was safe.
These contentions cannot be proved by [the Abrahams] nor disproved by [GWE and Big Horn] because [the Abrahams] did not preserve the essential evidence for inspection by either side. The allegedly defective propane gas was altered by being mixed with new gas deliveries. The condition of the gas system was substantially changed so that it is impossible to determine if it was safe or unsafe at the time of the accident.
The evidence available shows that the propane was adequately odorized. There is testimony that an odor was detected at delivery.[ ]
Bills of lading show that the gas was odorized.
The evidence also demonstrates that there were no leaks in the gas system. After the first delivery of gas, a number of matches were lit without producing any fire. The explosion occurred only after Mr. Abraham disconnected the lines and struck a match.
Plaintiffs' expert witness surmises that air was introduced into the gas line, that this neutralized the odor, and that Mr. Abraham was then unable to detect the presence of gas. The problem is that no expert will ever be able to inspect the gas system as it existed at the time of the explosion. Thus, there is no way to determine if air had invaded the lines. Testimony to the contrary is only speculation.
Consequently, [the Abrahams'] motion for continuance is denied. In the absence of the physical evidence, expert witnesses can only speculate about what might have happened. There are no inspections or experiments that can be conducted because the evidence no longer exists.
As our further discussion will bear out, the district court misapprehended the spoliation of evidence rules and engaged in fact finding with respect to genuine issues of material fact that were in dispute. Those factual issues must be resolved by a jury.
[ ] The trial court has broad discretion in granting or denying a motion for continuance, and absent a manifest abuse of discretion, the reviewing court will not disturb such ruling. To find an abuse of discretion, the refusal must be so arbitrary as to deny appellant due process, and the burden rests upon appellant to prove actual prejudice and a violation of his rights. Upon review we look at the peculiar circumstances of the case and the reasons presented to the trial judge at the time of the request. Byrd v. Mahaffey, 2003 WY 137, 7, 78 P.3d 671, 7 (Wyo. 2003).
[ ] W.R.C.P. 56 (c) and (f) provide:
(c) Motion and proceedings thereon. -- Unless the court otherwise orders, the motion and any response and other papers relating thereto shall be served pursuant to Rule 6(c). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages...
(f) When affidavits are unavailable. -- Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such
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