Carney v. Bereault

• Decision Date: 11 February 1965
• Citation: 348 Mass. 502,204 N.E.2d 448
• Parties: Martin J. CARNEY v. Henry BEREAULT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 448

204 N.E.2d 448

348 Mass. 502

Martin J. CARNEY v. Henry BEREAULT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1964.

Decided Feb. 11, 1965.

Morris Michelson, Boston, for plaintiff.

Charles W. O'Brien, Boston, for Gulf Oil Corporation.

John J. C. Herlihy, Boston (Niel L. Lynch, Boston, with him) for Wayne Pump Co.

Robert Fulton, Boston, for Marion Griffith.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.

SPALDING, Justice.

The evidence in this action of tort included the following: The defendant Bereault since 1952 was the operator of a garage in Holbrook. The defendant Simmons was an employee of Bereault. On November 19, 1959, an automobile owned by the defendant Marion Griffith was brought to the garage by her husband, Raymond Griffith, to be greased. Simmons placed the Griffith car, which weighed about three tons, on a hydraulic lift and raised the lift to its maximum height, five feet. Simmons then placed wooden blocks ahead of and behind the right rear wheel, 'pulled the emergency brake up to the maximum,' and 'put the gear in reverse.' After draining the oil, he went around to the front of the car, and while he was wiping the grease fittings, the car rolled 'straight back and off the ramp' and struck the plaintiff, who was a business invitee of Bereault. The car 'went off the ramp at the rear of the rails where the flaps were'; it went right over the flaps.

Bereault testified that there are four possible means of keeping a car on the lift, namely 'putting it in gear, using the handbrake, using the blocks and having the flaps.' The safest course was to use all four of these devices.

The lift on which the car was placed was a 'single post hydraulic hoist with two rails.' When a car is to be hoisted it is driven onto the rails and a hydraulic hoist in the center pushes the rails up. The rails 'have flaps in front and back and as the hoist goes up these flaps close for the purpose of keeping the car from rolling off the rails.' There were times before the accident when the flaps 'did not raise all the way up' and if that occurred 'they wouldn't be so effective to stop a car from rolling.' When raised completely, the flaps 'went up to about a 45 degree angle.' After the accident the flaps 'were sprung down [and] bent'; they would come part way down but would not lock.

The garage was owned by the defendant Gulf Oil Corporation (Gulf) and was leased to Bereault. The lift on which the Griffith car was placed was manufactured by the Wayne Pump Company (Wayne) and was sold to Gulf in 1950. Bereault testified that the 'lift was not level, that it is possible it was slanted down to the rear as the rails extended backward'; that he thought he had noticed this before the accident; and that it 'hasn't been changed since [it] was installed by * * * Gulf.'

Evidence in addition to the foregoing will be set forth hereinafter as occasion requires.

As a result of the accident described above the plaintiff brought this action of tort in five counts. Counts 1 and 2 against Bereault and Simmons, respectively, were submitted to the jury and verdicts were returned for the plaintiff. No exceptions are before us touching these counts. With respect to counts 3, 4, and 5 against Gulf Wayne, and Griffith, respectively, a verdict was directed for each defendant. The case comes here on the plaintiff's exceptions to the direction of these verdicts and to certain rulings on evidence.

1. In the case against Mrs. Griffith, the following additional evidence is relevant. The brakes of the automobile needed adjustment and she knew it. Neither Mrs. Griffith nor her husband, who took the car to the garage, told Simmons or Bereault that an adjustment of the brakes was necessary. An adjustment of the brakes not only would affect the operation of the foot brake, but also the hand brake.

It is the plaintiff's contention that Mrs. Griffith is liable because of the defective condition of the automobile and because of the failure to warn Simmons and Bereault that the brakes needed adjustment. Under our decisions 'a person who owns or controls an instrumentality which he knows, or with reasonable care should know, is dangerous in its nature or is in a dangerous condition and who disposed of it in a manner that he foresees, or in the exercise of reasonable care ought to foresee, will probably carry that thing into contact with some person, known or unknown, who will be ignorant of the danger, owes a legal duty to every such person to use reasonable care to prevent injury to him.' Mann v. Cook, 346 Mass. 174, 176-177, 190 N.E.2d 676, 678; Carter v. Yardley & Co., Ltd., 319 Mass. 92, 96, 64 N.E.2d 693, 164 A.L.R. 559. The plaintiff's case against the defendant Griffith does not come within this principle. It cannot be inferred from the mere fact that the brakes needed adjustment that their braking power had been reduced to the point of being dangerous. The only direct evidence concerning the effectiveness of the brakes indicated the contrary. There was testimony to the effect that the brakes 'were stopping the car just as well as if they had been tightened up a little.'

In the circumstances, Mrs. Griffith was not under a duty to give notice that the brakes needed adjustment. Generally there is no duty to warn of danger, unless the person on whom that duty rests has some reason to suppose a warning is needed. Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 513, 167 N.E. 235; Cadogan v. Boston Consol. Gas. Co., 290 Mass. 496, 499-500, 195 N.E. 772; De Martin v. New York, N. H. & H. R. R., 336 Mass. 261, 266, 143 N.E.2d 542. Here, not only was there a failure to establish that a danger existed, but also that Mrs. Griffith or her husband had reason to believe that a warning was necessary.

2. The count against Wayne is based upon the alleged negligent manufacture of the lift. See Carter v. Yardley & Co., Ltd., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. Wayne manufactured the lift in 1950. In that same year Wayne sold and delivered it to Gulf. The accident which gave rise to this action occurred over nine years later. The lift was installed in the garage in Holbrook by Gulf in 1952. Since the installation, 'there has been no change in the construction of the life.'

Although Carter v. Yardley & Co., Ltd., 319 Mass. 92, 64 N.E.2d 693, has relieved the plaintiff of the necessity of establishing privity of contract between the plaintiff and the defendant in cases based upon negligent manufacture, the plaintiff still has the burden of proving that a defect attributable to the manufacturer's negligence caused the injury. LeBlanc v. Ford Motor Co., 346 Mass. 225, 230, 191 N.E.2d 301. See Ricciutti v. Sylvania Elec. Prod., Inc., 343 Mass. 347, 352, 178 N.E.2d 857. Even if we assume that a defect in the lift caused the accident, there was no evidence tending to establish that the lift was defective at the time it was sold by Wayne. An inference that such was the case might be permissible if a defect in the construction of the lift had been discovered immediately or shortly after delivery. LeBlanc v. Ford Motor Co., 346 Mass. 225, 191 N.E.2d 301. See Pelland v. D'Allesandro, 321 Mass. 387, 389, 73 N.E.2d 590; Brennan v. Arlington Gas Light Co., 341 Mass. 679, 683, 171 N.E.2d 838. But, as we cautioned in the Yardley case '* * * [W]here the thing in question is subject to change by wear or crystallization or deterioration or neglect or unskilful repair or improper handling, perhaps in a course of years, there is danger that juries may overlook the nearer causes and wrongly attribute the injury to some antecedent neglect of the manufacturer or supplier, and do so at a time when he cannot recall forgotten events.' 319 Mass. 92, at pages 99-100, 64 N.E.2d 693, at page 698. When, as here, the accident occurred after the defendant has surrendered control of the instrumentality involved, it is incumbent upon the plaintiff to show that it had not been improperly handled by intermediate handlers. Evangelio v. Metropolitan Bottling Co., Inc., 339 Mass. 177, 183, 158 N.E.2d 342. See LeBlanc v. Ford Motor Co., 346 Mass. 225, 229, 191 N.E.2d 301. The evidence shows no more than that the construction of the lift had not been changed since 1952, two years after Wayne had delivered it to Gulf. There is no evidence negativing the possiblity that the condition of the lift had changed due to deterioration or mishandling. Because of this failure in proof, the plaintiff did not make out a case for the jury against Wayne.

3. In the case against the defendant Gulf, there was this further evidence. Gulf has servicemen who visit stations to repair equipment when complaints have been made. On December 1, 1959, approximately two weeks after the accident one of the employees did some work on the lift. Gulf also has salesmen who 'make reports of conditions they see * * * if anything is wrong at a location.' At the time of the accident, Gulf owned the premises and the equipment within the garage, including the lift. By a lease executed prior to the accident Bereault had become the lessee of the premises and equipment. The lease provided that Bereault ...