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Gerrity Oil & Gas Corp. v. Magness9/15/1997
EN BANC
JUSTICE MARTINEZ delivered the Opinion of the Court.
CHIEF JUSTICE VOLLACK concurs in part and Dissents in part.
JUSTICE BENDER does not participate.
We granted certiorari to review the court of appeals decision in Gerrity Oil & Gas Corp. v. Magness, 923 P.2d 261 (Colo. App. 1995). The court of appeals reversed the judgment of the trial court, which had dismissed Magness's counterclaims, and remanded the case to the trial court for a new trial on issues of both liability and damages. Gerrity, 923 P.2d at 266. The court of appeals held that section 34-60-114, 14 C.R.S. (1995), creates a private cause of action for individuals injured by another's violation of the Oil and Gas Conservation Act (the Act), 34-60-101 to 34-60-126, 14 C.R.S. (1995), or regulations (rules or commission rules) promulgated by the Oil and Gas Conservation Commission (commission). Id. at 263-64. The court of appeals also held that the trial court erred in construing Magness's trespass claim as requiring a showing that Gerrity acted unreasonably in conducting its operations. Id. at 266. The court of appeals further held that because the Act and commission rules defined "the relevant duty owed by Gerrity to Magness," the trial court erred in finding that Magness could not prevail in his counterclaims without presenting the testimony of an expert in the oil and gas industry. Id. at 264.
We determine that section 34-60-114 does not create a private cause of action for those damaged by another's violation of the Act or commission rule. We further conclude that, although negligence and trespass are distinct and separate causes of action, the reasonableness of an operator's surface use must be considered in determining if the operator committed a trespass.
We also hold that the determination of whether a surface owner must present testimony of an expert in the oil and gas industry requires the trial court to first identify the cause of action alleged by the surface owner. If the surface owner asserts a claim of negligence, expert testimony must be presented whenever the applicable standard of care is outside the common knowledge and experience of ordinary persons. If the surface owner relies on a statute or commission rule -- which we conclude do not establish the standard of care but are evidence of that standard -- expert testimony is still a requirement when the statute or rule itself includes a standard of care that is outside the common knowledge and experience of ordinary persons.
If a surface owner brings a trespass claim for alleged excessive surface use, the surface owner need not present expert testimony in order to have the issue reach the trier of fact. Unlike a negligence cause of action, a prima facie case of trespass does not require evidence of an applicable standard of care, but requires evidence that the operator's surface use materially interfered with surface uses. Because such evidence may be presented by lay persons, expert testimony is not necessary to establish a prima facie case of trespass. Once a prima facie case is established, the mineral interest holder may then counter that evidence by a showing of the scope of its surface use privilege and a showing that its operations were within that privilege.
Because we have not previously clarified the distinction between trespass and negligence causes of action in the context of oil and gas operations, a new trial is necessary on the question of Gerrity's liability. In addition, we conclude that a new trial on the damages issue is necessary because the liability and damages issues in this case are not entirely distinct and separable. We therefore reverse in part
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