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Walcott v. Total Petroleum Inc.8/20/1998
Appeal from the District Court of the City and County of Denver
Honorable H. Jeffrey Bayless, Judge
No. 95CV3968
JUDGMENT AFFIRMED
Division II
Plaintiffs, Brenda and Dean Walcott, appeal the summary judgment entered against them and in favor of defendant, Total Petroleum, Inc. (Total), on their claims for personal injuries. We affirm.
Plaintiff Brenda Walcott was involved in an argument with a man at a motel. The man left the motel and went to a Total store. At a self-service pump, he dispensed a small amount of gasoline into a paperboard cup, paid for the gasoline inside the store, and returned to the motel. He threw the gasoline on plaintiff and set her afire, causing her severe injuries. The assailant was apprehended, charged, and convicted of attempted murder after deliberation, first degree assault, first degree arson, and fourth degree arson.
Plaintiffs filed this action against Total, asserting claims of negligence, negligence per se, negligent entrustment, negligence in conducting an inherently dangerous activity, product liability (failure to warn), strict liability in conducting an ultrahazardous activity, and loss of consortium. Total filed motions for summary judgment requesting that the court dismiss all claims.
As to the various negligence claims, Total argued that it owed no duty to plaintiffs to refrain from selling gasoline to the assailant, that the sale was not a proximate cause of any injuries sustained, and that the assailant's actions were an independent intervening cause. Total sought dismissal of the product liability claim on the basis that the gasoline was neither defective nor unreasonably dangerous and that the cause of the injuries was the assailant's misuse of the product. Finally, Total argued that the sale of gasoline did not constitute an ultrahazardous activity.
The trial court first concluded that a gasoline vendor does not ordinarily have a duty to protect the general population from intentional criminal acts of persons who purchase gasoline and that the assailant's criminal conduct was unforeseen and unexpected. The court therefore dismissed the claims of negligence, negligence per se, negligent entrustment, and negligence in conducting an inherently dangerous activity. The court further ruled that the gasoline sold to the assailant was not in a defective condition unreasonably dangerous to the user or consumer and, finally, that selling gasoline was not an ultrahazardous activity.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. C.R.C.P. 56(c); see Casey v. Christie Lodge Owners Ass'n, 923 P.2d 365 (Colo. App. 1996). The purpose is to permit the formal allegations of the pleadings to be pierced, saving the time and expense connected with trial when, as a matter of law, based on undisputed facts, one party could not prevail. Graven v. Vail Associates, Inc., 888 P.2d 310 (Colo. App. 1994), rev'd on other grounds, 909 P.2d 514 (Colo. 1995).
I.
Plaintiffs first challenge the trial court's dismissal of the claims for negligence, negligence per se, negligent entrustment, and negligence in conducting an inherently dangerous activity. We find no error in the trial court's ruling.
Negligence claims cannot succeed without showing that a duty existed and that the breach of the duty was a proximate cause of the injuries alleged. See Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992); Largo Corp. v. Crespin, 727 P.2d 1098 (Colo. 1986).
The existence of a duty depends to a great extent on the foresee
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