Estate of Ross v. PSCo: Colorado Court Clarifies PLA Duty in Power Line Death

Background

In 2017, Heather Gardens Association, a retirement community in Aurora, Colorado, hired Comcast to install underground fiber optic cables. Comcast subcontracted several companies to perform excavation and drilling work, including Integrated Communication Services Inc. (ICS), Bohrenworks LLC, and Underground Communications LLC. Public Service Company of Colorado (PSCo), doing business as Xcel Energy, operated natural gas pipelines underneath the property. Between August and November 2018, the excavators damaged PSCo’s pipelines six times. On November 16, 2018, while drilling near Carol Ross’s home without first marking the location of underground pipelines, the excavators ruptured a gas line. Gas filled Ross’s home, and the explosion that followed killed her and destroyed the property.

The Estate of Carol Ross, along with Derek Ross and Tanya Weindler as heirs, filed suit against PSCo and other parties. While other defendants settled, the claims against PSCo proceeded to trial. The plaintiffs alleged wrongful death, negligence, negligence per se, strict liability, and extreme and outrageous conduct.

Felonious Killing Exception

Before trial, the plaintiffs asked the district court to determine whether the “felonious killing exception” to the noneconomic damages cap in Colorado’s Wrongful Death Act (WDA) applied to corporations. The district court ruled that it did not, concluding that the exception applied only to individuals. On appeal, the Colorado Court of Appeals examined whether a corporation could be subject to uncapped noneconomic damages under the WDA when its conduct constituted a felonious killing.

The appellate court noted that the WDA allows recovery against both individuals and corporations for wrongful death. It reasoned that excluding corporations from the felonious killing exception would contradict the statute’s purpose and legislative intent. Citing legislative discussions from the 1996 session, the court found that the General Assembly intended the exception to apply to both individuals and corporations. The court concluded that the district court’s narrow interpretation produced an absurd result and held that the exception applied to corporations. The case was remanded for the district court to determine whether PSCo’s conduct constituted a felonious killing and, if so, to remove the damages cap.

Pipeline Inspection Regulation

PSCo argued that federal regulation 49 C.F.R. § 192.614, which governs damage prevention for buried pipelines, did not require it to supervise excavators. The district court agreed, finding that the regulation required inspection of pipelines during and after excavation to verify their integrity but not direct oversight of excavation activities. The plaintiffs’ expert was permitted to testify about pipeline inspection practices but not to state that the regulation required “Stand and Watch” supervision programs. The appellate court affirmed this interpretation, holding that the regulation mandates inspection to prevent damage but does not compel operators to monitor excavation in real time.

Nonparty Fault and Jury Verdict

The jury found PSCo negligent and awarded the Ross heirs $15 million in noneconomic damages. Fault was allocated among PSCo and several nonparties, including Comcast and the excavation contractors. PSCo was assigned 12% of the total fault. The district court reduced PSCo’s share of damages to $436,070 under the WDA cap, rejecting PSCo’s argument that the cap should apply before apportioning fault. The appellate court held that damages must first be capped and then apportioned under the Colorado Supreme Court’s decision in Lanahan v. Chi Psi Fraternity.

Court’s Ruling

The Colorado Court of Appeals affirmed in part, reversed in part, and remanded. The court held that:

1. The felonious killing exception to the WDA’s noneconomic damages cap applies to corporations.

2. The district court correctly interpreted federal pipeline inspection regulations.

3. The inclusion of nonparties on the verdict form and related jury instructions complied with statutory requirements.

4. The district court erred by apportioning fault before applying the WDA’s damages cap.

On remand, the district court was instructed to determine whether PSCo’s conduct met the felonious killing standard and to recalculate damages accordingly.

Assistance with Wrongful Death Matters

If you have lost a loved one due to negligence, unsafe conditions, or corporate misconduct, Whitcomb, Selinsky PC handles wrongful death cases. Contact our team to learn how we can assist you in pursuing justice and compensation for your loss.