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Apodaca v. AAA Gas Co.3/11/2003
Archibeque v. Homrich, 88 N.M. 527, 532, 543 P.2d 820, 825 (1975). Plaintiffs' argument is essentially that the negligence per se instruction fails the first and second prong of this test because the regulation was not applicable to them. We must determine whether the NFPA 58 standard applied to Plaintiffs as a matter of state or municipal law. Questions of law are reviewed de novo. See Davis v. Bd. of County Comm'rs, 1999-NMCA-110, 11, 127 N.M. 785, 987 P.2d 1172 (ruling the existence of a legal duty is a question of law); see also Acosta v. City of Santa Fe, 2000-NMCA-092, 16, 129 N.M. 632, 11 P.3d 596 (interpreting ordinance to determine if legal duty exists is a question of law); Gabaldon v. Erisa Mortgage Co., 1997-NMCA-120, 6, 124 N.M. 296, 949 P.2d 1193, rev'd in part on other grounds by 1999-NMSC-039, 7, 128 N.M. 84, 990 P.2d 197 (reviewing courts apply de novo standard to determine questions of law).
The LPG & CNG Act regulates the repair of vehicles used to deliver propane gas in compliance with NFPA standards. Id. §§ 70-5-3 and -4. A preliminary review of the NFPA 58 materials provided by Plaintiffs suggests the standard is applicable to the propane industry such as AAA Gas, rather than incidental handlers such as Plaintiffs. Plaintiffs also cite Trinity Universal Ins. Co. v. Streza, 8 P.3d 613, 617 (Colo. Ct. App. 2000) which held incidental users of propane were outside the scope of NFPA 58. The Trinity court's conclusion that NFPA 58 did not apply to incidental users of propane was based on expert opinion and a finding that defendant was not within the scope of a state statute adopting the NFPA 58. Id. at 616.
Plaintiffs argue that, like the defendant in Trinity, they are "incidental users" of propane and are not within the scope of our LPG & CNG Act. However, unlike Trinity, this Court has already held that the state standards apply to members of the general public. Jaramillo v. Fisher Controls Co., 102 N.M. 614, 620, 698 P.2d 887, 893 (Ct. App. 1985) (finding LPG Bureau, which adopted NFPA 58, imposed a standard and a duty to comply with the standard on plaintiff who purchased a propane regulator to test his home stove). "Legislatively authorized rules and regulations have the force of law," and the " violation of a properly adopted and filed rule or regulation is negligence per se." Id. at 619, 698 P.2d at 892; accord Brininstool v. N.M. State Bd. of Educ., 81 N.M. 319, 322, 466 P.2d 885, 888 (Ct. App. 1970); see also F.D.I.C. v. Schuchmann, 235 F.3d 1217, 1223 (10th Cir. 2000) (interpreting New Mexico law). Here there is no argument presented to suggest the regulation was not properly adopted and filed. We hold that pursuant to Jaramillo, the LPG & CNG Act created a legal duty in Plaintiffs to adhere to NFPA 58. As such, the trial court did not err in instructing the jury that the standard applied to Plaintiffs as a matter of state law.
We are not persuaded Plaintiffs can escape the Albuquerque Fire Code, which served as the basis for the court's instruction on negligence per se. At the time of the explosion, the City of Albuquerque had a fire code in effect which adopted NFPA 58. Section 14-2-1(A)(3) (1994). Specifically, Section 14-2-1 reads as follows:
(A) For the purpose of prescribing minimum standards regulating conditions hazardous to life and property from fire and explosion within the city, the following code is adopted.
(B) The following documents, as amended in § 14-2-2, are adopted as the Fire Code of the city, and from the date on which this article takes effect, shall be controlling within the boundaries of the city:
(3) The N.F.P.A. Fire Codes and Supplements, as published by the Na
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