McLaughlin v. Bernstein

• Decision Date: 20 June 1969
• Citation: 249 N.E.2d 17,356 Mass. 219
• Parties: Margaret M. McLAUGHLIN v. Robert BERNSTEIN et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 17

249 N.E.2d 17

356 Mass. 219

Margaret M. McLAUGHLIN v. Robert BERNSTEIN et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 8, 1969.

Decided June 20, 1969.

Edward J. Barshak, Boston, for Ashmont Supply Co., Inc.

Leo Sontag, Newton Centre, for Robert Bernstein.

James D. Casey, Boston (Edward S. Ronan, Boston, with him) for plaintiff.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ. KIRK, Justice.

In this action of tort or contract for property damage the plaintiff was awarded damages against the defendant Robert Bernstein under count 1 (tort) and count 4 (contract) and against the defendant Ashmont Supply Co., Inc. (Ashmont) under count 3 (tort). On each count the verdict was the same amount. In substance all counts are for negligence. The case is before us on the defendants' exceptions to the denial of their motions for directed verdicts and to rulings on evidence.

We state the evidence. Early in December, 1960, the defendant Robert Bernstein, a painter and decorator for over twenty-five years, agreed, inter alia, to remove wallpaper in parts of the interior of premises owned by the plaintiff McLaughlin at 122 Milton Avenue, Dorchester. In anticipation of the work he reserved for rental from Ashmont, as he had done many times over the years, a wallpaper removal machine. The machine is made up of a water tank (with a burner attached to raise steam), a propane gas tank, an eight foot rubber hose that runs from the gas tank to the burner, and a twelve to fifteen inch hose that carries steam from the water tank to a perforated pan which is held against the wallpaper and emits steam to help remove it. A regulator on the propane gas tank regulates the flow of gas from the tank to the burner which is located beneath the water tank.

On the morning of December 17, 1960, Bernstein got the machine at Ashmont's store, and was told by Ashmont's manager, one Rudnick, 'it's already for you.' At the store he checked the fittings and threads to make sure they 'weren't threaded.' He knew that the hose was not new; he examined and felt it only for bumps and cuts. After leaving the store he did not examine it again. He did not check the regulator. He knew that the regulator was used to reduce the pressure of the gas from the time the gas came out of the tank until it went into the hose, and that if something were wrong with the regulator gas would escape. He had no knowledge of the interior workings of the regulator and did not dismantle it. Bernstein knew that if the machine were not used properly there was danger in using it. He was aware that the whole system was under pressure, the water tank and the gas. He knew that gas could escape from the fittings, the hose and the regulator, and that there was danger of catastrophe if gas did escape.

When Bernstein left the store he took with him a tank of propane gas, a highly volatile and dangerous gas. He took the whole machine in his car to the plaintiff's premises. The plaintiff objected to the use of the machine but Bernstein assured her it was perfectly safe. He set up the machine and tested it for leaks by running matches over the fittings. The fittings were tight; no gas leaked. Each time he moved the machine he disconnected the hoses because the water tank was hot. And each time he tested it the same way; i.e., when in position he reconnected the hoses and used the match check. He knew that if there were a leak there would be danger of fire and explosion from his method. He knew that testing with water or soapsuds was a safer method. 'During the use of the machine in removing the wallpaper, the hose from the gas tank to the burner was always bent in some fashion.'

After finishing the upper hallway of the premises, Bernstein shut off the machine, disconnected the gas hose at the burner and carried the machine to the bottom landing. He reconnected the hose, turned on the valve at the gas tank and regulator, but not at the burner, walked toward the water tank, turned around, and 'it seemed like the hose just opened up and I saw a big vapor cloud coming up.' The middle of the hose was rupturned. He did not try to turn off the gas. There was an explosion. Bernstein denied that he lighted a match or that he was smoking. He testified that other than the gas the only combustibles in the hallway were the matches he used in testing. After the explosion, the pan, the hoses and the regulator of the machine were missing.

Ashmont maintained and rented these machines as part of its business to anyone who wanted to rent then on a daily rental fee. They were in common use and carried by most hardware stores. Ashmont's manager had no knowledge of the age of the particular machine. No expert or representative of the manufacturer tested them. Before renting he handled and took 'a general look at the hoses to see if there were any breaks in them.' He was aware of the potential dangers if the machines were not properly used and knew that the regulator and hoses should be in good condition. He did not know how to test a regulator. He could not say if the regulator on the machine had ever been replaced and did not know how long the hose had been in use. If the machine were properly used the hose was not supposed to rupture. He had replacements available. If they appeared worn or if someone complained of smelling gas, primarily if someone complained, he would change them.

An expert testified that the whole machine is a pressurized unit. The gas is under pressure and the water, converted to steam, is under pressure. He examined the remains of the machine which were in Bernstein's possession. The missing parts were the shut-off valve to the burner, the gas hose connecting the burner to the propane gas tank, the regulator (normally attached to the gas tank), the steam hose and the steam pan. The water tank at the top was corroded, a condition which existed prior to the fire. There could be three causes for the escape of the gas: (1) a weak spot in the hose, (2) a defect in the regulator, (3) a leakage of gas at the joints. It was not probable that there was gas leaking from the joints. Even so, the proper way to check for leaks at the joints or connections in this sort of unit when it is connected is to use soapsuds, moisture or water. Minute leaking may be found by checking for bubbles. The use of a match is dangerous and is not as effective to detect leaks.

The two most probable causes of the gas leak were a defect in the regulator or a defect in the hose. A regulator contains a body which allows gas to come in and flow through it and out. It is essentially an automatic valve operated by a diaphragm. The pressure operating upon the diaphragm and the spring opposite the diaphragm within the regulator controls the flow of gas. The disphragm is made of reinforced rubber and keeps flexing, moving up and down. The constant flexing eventually causes the diaphragm to deteriorate so that there is a failure from cracks which appear. When this occurs, control of the pressure of the gas is lost and there is leakage from the regulator. The weakness or deterioration of a diaphragm can be found only by visual inspection by taking the cap off the regulator. The examination would take ten to fifteen minutes. It is only necessary to remove six or eight screws and lift out the diaphragm of reinforced neoprene and make a visual inspection of it.

Careful visual inspection of the hose would show if it were starting to deteriorate. Nonvisible weaknesses in hoses can be detected by using equipment which is in general use and which is not expensive. Anyone can use it and it takes only ten minutes. If there were a latent defect in the hose, it would rupture under the test.

Propane gas is heavier than air. When it escapes it flows toward the floor. 'After the gas escaped, a flame or a spark would be necessary to set off the accumulation of gas.' It could be set off by an electric arc, an open flame, or ash, a cigarette or something with actual combustion taking place. 'The electric arc could be caused by an open switch but it would have to be down in the area where the gas had concentrated.'

The exceptions to rulings on evidence, argued only by Bernstein, may be briefly dealt with. Rudnick, called as a witness by the plaintiff, had testified without objection that he 'did not expect the hose to rupture if the machine was being used properly and if the machine were being used properly the hose was not...