Sawash v. Suburban Welders Supply Co., Inc.

• Decision Date: 09 May 1990
• Citation: 553 N.E.2d 894,407 Mass. 311
• Parties: , 58 USLW 2720 Lorraine SAWASH et al. 1 v. SUBURBAN WELDERS SUPPLY COMPANY, INC., et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 894

553 N.E.2d 894

407 Mass. 311, 58 USLW 2720

Lorraine SAWASH et al. ¹ v. SUBURBAN WELDERS SUPPLY COMPANY, INC., et al. ²

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued January 9, 1990.

Decided May 9, 1990.

Edward M. Swartz (Alan L. Cantor, Boston, with him), for plaintiffs.

Robert P. Powers (Jeffrey C. Melick and Joseph P. Musacchio, Boston, with him), for Country Gas Distributors, Inc.

Diane Swierczynski and Lesa M. Stramondo, Boston, for Suburban Welders Supply Co., Inc.

Before ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

This is the plaintiffs' appeal from the allowance of the defendants' motions for summary judgment and the entry of judgment dismissing the plaintiffs' complaint. We granted the parties' joint application for direct appellate review. We reverse the judgment and remand to the Superior Court.

The plaintiffs were severely burned as the result of an explosion and fire inside a tent in which they had been sleeping. The explosion and fire occurred when the plaintiffs awoke and turned off a catalytic heater that had been heating their tent and was fueled by propane gas, also known as liquefied petroleum (or l.p.) gas. The plaintiffs say that at no time before or after the fire did they smell gas.

The plaintiffs' complaint alleges that the defendants distributed and sold the propane; that the propane was dangerously defective; and that it was unaccompanied by an adequate warning of its dangerousness. The complaint sounded in negligence and breach of express and implied warranties.

The defendant Country Gas Distributors, Inc. (Country Gas), moved for summary judgment on the stated ground that "discovery had demonstrated that Country Gas fully complied with all applicable state and federal regulations regarding odorization of the gas involved. Such compliance demonstrates that plaintiffs' complaint is without foundation and precludes imposition of tort liability." The defendant Suburban Welders Supply Company, Inc. (Suburban), followed suit with a similar motion. Materials submitted in support of the motions established that the gist of the plaintiffs' claims was that the propane, which is naturally odorless, had been supplied by Country Gas to Suburban and sold to the plaintiff Raymond Sawash's brother without having been adequately odorized and without sufficient warning. The materials also established that the propane complied with a regulation issued by the Secretary of Transportation. 49 C.F.R. § 173.315 (1989). A judge of the Superior Court allowed the motions for summary judgment without explanation, but we assume, as the parties also appear to assume, that the judge decided that the plaintiffs' product liability action is preempted by the Hazardous Materials Transportation Act HMTA), 49 U.S.C. App. §§ 1801-1813 (1982 & Supp. III 1985), and 49 C.F.R. § 173.315.

We set forth several relevant portions of the HMTA and 49 C.F.R. § 173.315. Section 1801 of the HMTA provides: "It is declared to be the policy of Congress in this chapter [Chapter 27 entitled "Hazardous Materials Transportation"] to improve the regulatory and enforcement authority of the Secretary of Transportation to protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." In § 1802(6), the term "transports" or "transportation" is defined to mean "any movement of property by any mode, and any loading, unloading, or storage incidental thereto." Section 1803 states that, "[u]pon a finding by the Secretary, in his discretion, that the transportation of a particular quantity and form of material in commerce may pose an unreasonable risk to health and safety or property, he shall designate such quantity and form of material or group or class of such materials as a hazardous material...." Under § 1804 of the HMTA, the Secretary of Transportation may issue "regulations for the safe transportation in commerce of hazardous materials. Such regulations shall be applicable to any person who transports, or causes to be transported or shipped, a hazardous material, or who manufactures, fabricates, marks, maintains, reconditions, repairs, or tests a package or container which is represented, marked, certified, or sold by such person for use in the transportation in commerce of certain hazardous materials. Such regulations may govern any safety aspect of the transportation of hazardous materials...."

We refer to one other section of the statute. Section 1811(a) provides that "[e]xcept as provided in subsection (b) of this section [subsection (b) is irrelevant to the present case], any requirement, of a State or political subdivision thereof, which is inconsistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is preempted."

The Secretary of Transportation issued an odorization regulation, § 173.315, entitled, "Compressed gases in cargo tanks and portable tanks." The regulation provides in part:

"(a) A compressed gas offered for transportation in a cargo tank or a portable tank must be prepared in accordance with this section....

"...

"(b) ...

"(1) Odorization. All liquefied petroleum gas shall be effectively odorized as required in Note 2 of this paragraph to indicate positively, by a distinctive odor, the presence of gas down to a concentration in air of not over one-fifth the lower limit of combustibility: Provided, however, That odorization is not required if harmful in the use or further processing of the liquefied petroleum gas, or if odorization will serve no useful purpose as a warning agent in such use or further processing.

"...

"NOTE 2: The use of 1.0 pound of ethyl mercaptan, 1.0 pound of thiophane, or 1.4 pounds of amyl mercaptan per 10,000 gallons of liquefied petroleum gas shall be considered sufficient to meet the requirements of § 173.315(b)(1)...." 49 C.F.R. § 173.315 (1989).

"Federal law may pre-empt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to pre-empt state law.... Second, even in the absence of express pre-emptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the States must leave all regulatory activity in that area to the Federal Government.... Finally, if Congress has not displaced state regulation entirely, it may nonetheless pre-empt state law to the extent that the state law actually conflicts with federal law. Such a conflict arises when compliance with both state and federal law is impossible, ... or when the state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " (Citations omitted.) Michigan Canners & Freezers Ass'n v. Agricultural Mktg. & Bargaining Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984), quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See Attorney Gen. v. Brown, 400 Mass. 826, 828-829, 511 N.E.2d 1103 (1987). Federal regulations, when consistent with the underlying statute, constitute a type of Federal law that can be preemptive. Fidelity Fed. Sav. & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982).

"Preemption ... is not favored, and State laws should be upheld unless a conflict with Federal law is clear." Attorney Gen. v. Travelers Ins. Co., 385 Mass. 598, 602, 433 N.E.2d 1223 (1982), vacated, 463 U.S. 1221, 103 S.Ct. 3563, 77 L.Ed.2d 1405 (1983), reaff'd, 391 Mass. 730, 463 N.E.2d 548 (1984), aff'd sub nom. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). "The burden is on the party seeking to displace the State action to show preemption with hard evidence of conflict based on the record." Commonwealth Elec. Co. v. Department of Pub. Utils., 397 Mass. 361, 376, 491 N.E.2d 1035 (1986), cert. denied 481 U.S. 1036, 107 S.Ct. 1971, 95 L.Ed.2d 812 (1987). "State law is not preempted merely by reference to some vaguely defined Federal policy, or on the ground that Congress has enacted a statute which is tangentially relevant to the subject at issue." Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 545, 481 N.E.2d 441 (1985). We assume, without deciding, in favor of the defendants and contrary to the plaintiffs' argument, that a tort action has the same regulatory effect as a State law and therefore that it can be preempted in the same manner and to the same degree as a State law. See Wood v. General Motors Corp., 865 F.2d 395, 410-412 (1st Cir.1988), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 782 (1990). ³

We turn our attention to the question whether Congress has indicated an intention that the HMTA should preempt State law in any of the three ways described in Michigan Canners & Freezers Ass'n v. Agricultural Mktg. & Bargaining Bd., supra. The HMTA, unlike many Federal statutes, expressly defines the extent of its preemptive effect in § 1811, entitled "Relationship to other laws," and set forth above. The provision in § 1811 that only those State requirements that are "inconsistent" with the HMTA or related regulations are preempted makes clear that Congress has not adopted the second mode of preemption set forth in the Michigan Canners case. That is, Congress has made clear that it has no intention of preempting the entire field of regulating every aspect of commerce in propane and other compressed gases. See Hazardous Materials; Inconsistency Rulings, 49 Fed.Reg. 46,632 (1984).

Furthermore, the language of § 1811 to the effect that only "inconsistent" State requirements are preempted has been interpreted by the Department of Transportation to mean that only State law that actually conflicts (in the sense discussed below) with the HMTA or a related regulation is...