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Apodaca v. AAA Gas Co.3/11/2003
ct liability for abnormally dangerous activities to hold that the repair of propane trucks is not an ultrahazardous activity in New Mexico.
II. Application of NFPA 58 to Plaintiffs
The second issue on appeal is whether the trial court erred by instructing the jury that NFPA 58 applied to "any person or company," which included Plaintiffs or their employer. At trial, Plaintiffs tendered two negligence per se instructions relating to an asserted violation of the Albuquerque Fire Code, § 14-2-1(B)(3) and NFPA 58, § 6-6.2.3 by "defendant" AAA Gas. Modifying Plaintiffs' instructions, the trial court created one instruction, added another section of NFPA § 6-6.2.2 and made the instruction applicable to "any person or company" to whom the law could apply. The instruction as given to the jury read as follows:
There was an ordinance in force in the city of Albuquerque, at the time of the occurrence in question, which provided as follows:
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:
The N.F.P.A. Fire Codes and Supplements . . .
Additionally there were two New Mexico statutes in force adopting the N.F.P.A. Code and supplements. These provisions of the N.F.P.A. Code state:
6-6.2.2 Vehicles parked indoors shall comply with the following:
(a) Cargo vehicles parked in any public garage or building shall have LP-Gas liquid removed from the cargo container, piping, pump, meter, hoses, and related equipment, and the pressure in the delivery hoses, and related equipment shall be reduced to approximately atmospheric, and all valves shall be closed before the vehicle is moved indoors. Delivery hose or valve shall be plugged or capped before the vehicle is moved indoors.
(b) Vehicles used to carry portable containers shall not be moved into any public garage or building for parking until all portable containers have been removed from the vehicle.
(c) Vehicles carrying or containing LP-Gas shall be permitted to be parked in buildings complying with Chapter 7 and located on premises owned or under the control of the operator of such vehicles, provided:
1. The public is excluded from such buildings.
2. There is adequate floor level ventilation in all parts of the building where such vehicles are parked.
3. Leaks in the vehicle LP-Gas systems are repaired before the vehicle is moved indoors.
4. Primary shutoff valves on cargo tanks and other LP-Gas containers on the vehicle (except propulsion engine fuel containers) are closed and delivery hose outlets plugged or capped to contain system pressure before the vehicle is moved indoors. Primary shutoff valves on LP-Gas propulsion engine fuel containers shall be closed while the vehicle is parked.
5. No LP-Gas container is located near a source of heat or within the direct path of hot air being blown from blower-type heater.
6. LP-Gas containers are gauged or weighed to determine that they are not filled beyond the maximum filling limit according to Section 4-4.
6-6.2.3 Vehicles shall be permitted to be serviced or repaired indoors as follows:
(a) when it is necessary to move a vehicle into any building located on premises owned or operated by the operator of such vehicle for service on engine or chassis, the provisions of 6-6.2.2 (a) or (c) shall apply.
(b) When it is necessary to move a vehicle carrying or containing LP-Gas into any public garage or repair facility for service on the engine or chassis
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