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Apodaca v. AAA Gas Co.3/11/2003
aims were settled and his suit against Defendants was dismissed.
Plaintiffs filed the present action in Bernalillo County. The complaint alleged negligence and products liability against AAA Gas, LPGE, and Fisher Controls. Specifically, Plaintiffs alleged AAA Gas was directly and vicariously liable under theories of common law negligence, negligence per se, and products liability for failing to remove propane from the truck before delivering it for repair. Plaintiffs alleged LPGE and Fisher Controls were negligent or strictly liable for providing a defective valve. In addition to compensatory and punitive damages sought by Apodaca and Velasquez, their wives sought damages for loss of consortium and spousal services.
Some three months later, on May 15, 2000, Plaintiffs moved to amend their complaint against LPGE after discovering that Fisher Controls had not supplied the valve involved in the explosion. The amended complaint alleged LPGE had violated the Unfair Practices Act (UPA), NMSA 1978, ยงยง 57-12-1 to -22 (1967, as amended through 1999), by misrepresenting the valve actually involved as new and unused. The amended complaint also alleged AAA Gas had created an ultrahazardous condition by delivering the truck for repair loaded with propane in violation of the Albuquerque Fire Code, which prohibits the repair of a cargo tank system inside a building unless all liquid propane gas is removed and the system purged. A supplemental motion to amend complaint was filed on May 22, 2000, to detail claims against LPGE and withdraw allegations against Fisher Controls.
The trial court dismissed Fisher Controls with prejudice on May 26, 2000, as a result of a settlement agreement with Plaintiffs and, on June 6, 2000, the trial court then denied Plaintiffs' motions to amend. Plaintiffs in turn filed a second complaint against LPGE in the Bernalillo County District Court on June 28, 2000, essentially restating the allegations contained in their motions to amend-that LPGE misrepresented the valve involved as new and unused, and charging LPGE with one count for the UPA violation and one count of misrepresentation. On February 6, 2001, the trial court dismissed this second complaint on summary judgment in favor of LPGE on res judicata and/or collateral estoppel grounds. Plaintiffs timely appealed that decision.
The first complaint was tried before a jury of twelve. At the conclusion, the jury answered special interrogatories in favor of Defendants on all theories of liability. The jury answered "no" to whether AAA Gas was negligent and "no" to whether AAA Gas failed to take reasonable precautions necessary to avoid harm. The jury also answered "no" to whether LPGE was negligent and "no" to whether LPGE was liable under products liability. The trial court entered a judgment on the verdict and denied Plaintiffs' motion for a new trial. Plaintiffs timely filed this appeal, which is a consolidation of the two cases filed in Bernalillo County District Court.
We review each of the above issues in the order presented on appeal.
I. Ultrahazardous Activity
Plaintiffs contend that the trial court erred in refusing to instruct the jury on strict liability for ultrahazardous activity. See UJI 13-1627 NMRA 2003. Instead of submitting Plaintiffs' requested instruction 13-1627, the court instructed the jury under UJI 13-1601 NMRA 2003 (negligence) and UJI 13-1634 NMRA 2003 (strict liability for non-delegable duties). These instructions, Plaintiffs argue, were inadequate and confusing because they are theories based in negligence rather than strict liability.
Plaintiffs argue that AAA Gas alone had special responsibilities for any
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