Green v. Parisi , 478 F.2d 313 ( 1973 )

OPINION OF THE COURT

ROSENN, Circuit Judge.

These two consolidated appeals brought by Fred Green, administrator of the estate of James Henry Bruno, seek reversal of the judgments of the United States District Court for the Eastern District of Pennsylvania entered in favor of the three appellees — the Philadelphia Gas Works, Frank Parisi and John DeMarco.¹ Bruno died from serious burns suffered in an unfortunate explosion and fire occurring when he struck a match to light a gas burner in the kitchen of his rented home in Philadelphia.

Green brought suit under the Pennsylvania wrongful death and survivor statutes against the Philadelphia Gas Works, as supplier of natural gas to the Bruno home, Parisi, Bruno’s landlord, and DeMarco, Parisi’s real estate agent. Federal jurisdiction was based on diversity, and Pennsylvania substantive law applies. After a bifurcated trial, the jury returned verdicts in favor of all defendants. We have considered all trial errors alleged by appellant, and, finding them without merit, affirm the judgments of the district court.

At trial, two different theories of the cause of the explosion and fire were presented. Plaintiff’s theory was that a natural gas leak in the connector pipe of the Brunos’ gas range caused the conflagration. Plaintiff attempted to demonstrate that the negligence of the three appellees caused the gas leak. Defendants’ theory, on the other hand, was that the explosion was caused by the existence in the kitchen of gasoline, which Bruno had been using to clean automobile parts. Alternatively, defendants contended, if the explosion had been caused by a natural gas leak, the decedent had assumed the risk of such an occurrence.

Appellant’s primary contention of trial error is that, in the absence of any evidence indicating that decedent Bruno was aware of the dangers of a gas leak, the jury should not have been instructed that it could find he had assumed the risk of an explosion. Appellant emphasizes that there is no evidence in the record indicating that decedent was aware of the dangerousness of gas leaks or the existence of a foul smelling gas odor in his home, or, even if he was aware of the odor, that he knew it was natural gas which had explosive combustion potentialities. Appellant points out that Bruno was Puerto Rican, spoke only Spanish, and was not shown to have any special scientific expertise.

Appellees argue that the danger of gas leaks is an ordinary risk appreciated by the community in general, and that the jury was properly allowed to infer that Bruno was aware of the gas smell and of the accompanying risk. They point to the evidence at trial that other members of the Bruno family had smelled gas while living in the house for three months prior to the explosion. They emphasize that Bruno, a 37 year old man, had lived in the United States for fifteen years, was employed as a machinist, and was an amateur automobile mechanic.

The court’s instruction to the jury on assumption of risk was:

If you find that Mr. Bruno subjectively knew, that is actually knew that there was the risk of an explosion or of a fire being caused by leaking gas, if he attempted to light the stove, but that nevertheless being aware of an obvious danger, took or assumed the risk of the explosion, and by so doing brought about the injury to himself, even though the precise extent of the injuries might not have been anticipated or known to him, he may not recover.

Assumption of risk, however, relates to a subjective awareness by the plaintiff of a perceptible risk of harm. I advise you, however, that both the possible defenses of contributory negligence and assumption of risk are what are known as affirmative defenses and as such the defendant has the burden of proof on those issues. That is the defendant or defendants asserting such a defense must prove by a preponderance of the evidence that Mr. Bruno himself was eontribu-torily negligent, as I have defined this term to you, or being aware of the risk of harm voluntarily assumed the risk of harm, and that such contributory negligence or assumption of the risk contributed to the happening of the accident in a proximate way.

I further advise you that there is a presumption in law that a decedent was using due care at the time of his death and that he did not negligently or voluntarily bring about his own death, and that he took all normal and reasonable precautions to protect and preserve his life. Thus in the absence of substantive evidence to the contrary which overcomes by a preponderance of the evidence the presumption that the decedent was not con-tributorily negligent, this presumption would prevail and you would be justified in finding that the decedent was not contributorily negligent and that he did not voluntarily assume the risk of harm.

The charge is based on the principles stated in Restatement of Torts 2d § 496 (1965). There is no dispute among the parties that the charge correctly stated the principles that assumption of risk depends on the subjective state of mind of decedent, that the burden of proving assumption of risk is on defendant, and that because of the presumption of due care given deceased persons, assumption of risk cannot be found unless there was substantive evidence rebutting due care. The dispute, therefore, is whether such substantive evidence existed to properly warrant the instruction given to the jury.

”§inee assumption of risk relates to the subjective awareness by a party of a perceptible risk of harm, direct proof of it is exceedingly difficult. Evidence that a party assumed a risk may, however, be inferred from surrounding circumstances; there need not be actual proof that he knew, understood or appreciated the risk. Restatement of Torts 2d § 496D, Comment (d) (1965); Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d 181, 186-187 (1953). In Schentzel, there was no direct evidence that plaintiff, a 47 year old woman, knew that baseball players hit foul balls which go astray and may injure spectators. The court, nonetheless, reversed a judgment in her favor, finding she must have assumed such a risk, because “she must be presumed to have been cognizant of the ‘neighborhood knowledge’ with which individuals living in organized society are normally equipped.” 96 A.2d at 186.

Although most cases in which courts have allowed juries to infer knowledge of a dangerous risk have involved plaintiff spectators at, or participants in, sporting events, see Restatement of Torts 2d App. § 496D, Comment (d); 149 A.L.R. 1174, 1177-1179; 142 A.L.R. 868, 874-877; 138 A.L.R. 540, 554-556; Watson v. Zanotti Motor Co., 219 Pa.Super. 96, 280 A.2d 670 (1971); the doctrine need not be limited to such cases. Juries have been allowed to draw inferences about the subjective knowledge of plaintiffs in products liability suits. In Green v. Sanitary Scale Co., 431 F.2d 371 (3d Cir. 1970), plaintiff was injured when his hand was drawn into a meat grinding machine. The district court refused to instruct on assumption of risk because plaintiff had testified that although he recognized the danger of putting his hand into the machine’s gears, he was not aware of the danger involved in using his hand, instead of an aluminum stomper, to push the meat into hopper. We reversed, stating:

[I]n view of Green’s testimony that he clearly understood the risk of putting his hand into the gear, it was for the jury to decide whether or not he must also have understood the obvious danger of placing his fingers too close to the gear, and also how far, in fact, he voluntarily put his fingers into the grinder before attempting to withdraw them. We would usurp the traditionally broad discretion of juries to apply their common sense were we to declare that a jury which has heard a party testify that he knew the danger of putting his hand in a moving gear was barred from drawing the inference that he also knew there was a risk in putting his hand too close to the gear, simply because he had not acknowledged that he was expressly aware of that extent of the risk.

431 F.2d at 374. See also Bartekewich v. Billinger, 432 Pa. 351, 247 A.2d 603, 606 (1968); Dorsey v. Yoder Co., 331 F.Supp. 753, 765-767 (E.D.Pa.1971) (although no assumption of risk was found, the issue was decided by the jury).

In the present case, there was evidence from which the jury could have concluded that Bruno was aware of the danger of leaking gas. Other members of his family had smelled the leaking gas and had been disturbed by it during their three month residence. It is a reasonable inference that the head of the family was also aware of the gas in his home and its dangerous propensities.² *****8 It was not necessary for the jurors to recognize a general community knowledge that leaking gas is dangerous in order to infer Bruno’s knowledge; the inference could have been based on the knowledge and reactions of Bruno’s own family. If the jury did rely on community knowledge, however, that would not have been error. The cases emphasize that the jury is to apply its own common sense when knowledge of a risk is widely known and appreciated. The dangers of leaking natural gas in a home would seem such a widely known risk.

Appellant argues that this court refused to allow juries to make inferences as to a plaintiff’s knowledge of a risk when it affirmed the decision in Hennigan v. Atlantic Refining Co., 282 F.Supp. 667 (E.D.Pa.1967), aff’d per curiam, 400 F.2d 857 (3d Cir. 1968). In Hennigan, three workmen were killed by an explosion in a tunnel in which they were constructing a sewer. The cause of the explosion was established at trial to have been ignition of fumes, coming from crude oil which had leaked from a tank farm into the area of the tunnel, by sparks from various equipment in the tunnel. Special interrogatories were submitted to the jury asking it to determine whether the decedents had assumed the risk of the explosion. Upon various motions for judgment notwithstanding the verdict, the trial judge sustained the jury finding of no assumption of risk. In so doing, he said:

While the workmen may have smelled gas fumes and known that they became lightheaded or nauseous from working in the tunnel, there was no evidence that they knew or should have known (a) that the vapors were at or near the explosive limit; (b) that a random spark from any source could cause a flash fire and explosion, and (c) that the equipment being used was likely to create such a spark.

282 F.Supp. at 682.

The trial judge in Hennigan stated that if any error was made, it was in even allowing the jury to consider the assumption of risk issue. His statement that there was not sufficient evidence of the subjective states of mind of decedents to submit the issue to the jury was, however, dicta, as the issue had been submitted. Even this dicta does not conflict with the general principle that a jury will be allowed to infer knowledge of a risk. The only evidence presented in Hennigan bearing on decedents’ mental state was that there was an odor of petroleum in the tunnel. There was no evidence that any man in the tunnel was aware, nor any general community knowledge for the court to take judicial notice of, that petroleum fumes in such circumstances were dangerous. In the present case, other residents of the Bruno household expressed an awareness of the danger of the leaking gas, and. it is general community knowledge that gas leaking in a home is dangerous.

The district court was therefore correct in instructing the jury that it should not find appellees liable if it found Bruno had assumed the risk of lighting a match near leaking gas.

Appellant’s second contention is that the jury should have been told explicitly that the Philadelphia Gas Works was negligent when it turned on the gas at the Bruno home if its employees had not followed company procedures. He contends the company manual, “Specifications for the Installation of Gas Piping and Domestic Appliances,” which was in evidence, imposed a duty on the employees to follow certain procedures to check for gas leaks. This contention is without merit.

The evidence at trial disclosed that the manual referred to by appellant was for use of plumbers and appliance installers, not company servicemen. Because they lacked the familiarity with gas lines which company servicemen had, plumbers and appliance installers were instructed to complete slightly different and more extensive tests for gas leaks. It does not necessarily follow, therefore, that the failure of the Gas Works employee who turned on the Bru-nos’ gas to follow the procedures in the “Specifications for the Installation of Gas Piping and Domestic Appliances” manual constituted negligence. The absence of an explicit reference in the instructions to the jury to this manual was therefore not error. The judge did instruct:

If the Gas Company . . . is in possession of facts which should reasonably inform it that it is unsafe, it then becomes the Gas Company’s duty to investigate the safety of the pipe before it continues to use it for the transportation of gas.

And, further:

But the Company knows that it is dealing with a dangerous agency, and if it knows or should have known that the customer’s lines are not safe, it is then its duty to require the lines to be repaired or else shut off the gas. [Emphasis added.]

By telling the jury that the gas company is liable for repairing the gas line if it “should have known” of an unsafe gas line, the court properly instructed on the company’s duty to police its lines. It was for plaintiffs to convince the jury that this duty was neglected when Bruno’s gas was turned on.

Appellant’s other contentions — (a) that he should have been allowed to read into evidence Interrogatory No. 10 and the answer of the Philadelphia Gas Works; (b) that the opinion testimony of Lt. William Shirar of the fire department, that the fire and explosion were “probably” caused by ignition of gasoline fumes, rather than of leaking gas, should have been ruled inadmissible; and (e) that errors were committed in the court’s determination of what exhibits could be taken to the jury room — are all properly disposed of in the district court opinion. 333 F.Supp. at 1404-1407. We find the contentions without merit.

The judgments of the district court will be affirmed.

1 . The district court opinion denying a motion for a new trial is reported at 333 F.Supp. 1398 (E.D.Pa.1971).

2 . Unlike the dissent, we have no problem with the submission to the jury under appropriate instructions of the question of whether Bruno was aware of the leaking gas. Trial testimony indicated that Mrs. Bruno, her mother, her brother, and a close friend had smelled gas in the house for about three months, from August 13 to November 5, with the smell being strongest in the kitchen. The record shows that Bruno’s family was disturbed by it and was apparently aware of its dangers. Although there was no direct evidence that Bruno was aware of the gas smell, the jury could have inferred from the circumstantial evidence that Bruno, as head of the house, was also aware of it either because (1) he too smelled it, or (2) members of his family, since they were aware of its presence and were disturbed by it, told him about it.

Under Pennsylvania law, the burden to present an issue of fact to the jury may be fulfilled entirely by circumstantial evidence from which reasonable inferences are deducible. Hines v. Fanti, 374 Pa. 254, 97 A.2d 808 (1953) ; Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959) ; Weidemoyer v. Swartz, 407 Pa. 282, 180 A.2d 19 (1962). Circumstantial evidence of Bruno’s knowledge was presented at trial here; we are unable to say that it would not have been a reasonable inference for jurors to determine that Bruno was aware of the gas smell. The dissent seems to suggest that defendants failed to meet the production burden because they did not elicit testimony from the witnesses that Bruno had been told of, or had acknowledged smelling, the gas. Such direct evidence of his awareness was not necessary to constitute a jury question, although its absence could certainly have been argued to the jury.