Rosado v. Boston Gas Co., s. 88-P-487

• Decision Date: 26 September 1989
• Docket Number: 88-P-488,Nos. 88-P-487,s. 88-P-487
• Parties: Migdalia ROSADO, administratrix, v. BOSTON GAS COMPANY.
• Court: Appeals Court of Massachusetts

Page 304

542 N.E.2d 304

27 Mass.App.Ct. 675

Migdalia ROSADO, administratrix, v. BOSTON GAS COMPANY.

Nos. 88-P-487, 88-P-488.

Appeals Court of Massachusetts Suffolk.

Argued April 13, 1989.

Decided Aug. 11, 1989.

Further Appellate Review Denied Sept. 26, 1989.

John B. Johnson, Boston, for defendant.

Michael E. Mone & John B. Rest (Patricia L. Kelly & Diane M. Meibaum, Boston, with them), for plaintiff.

Before GREANEY, C.J., and ARMSTRONG and KASS, JJ.

KASS, Justice.

We focus our inquiry on the extent of the duty of a gas company, a public utility, to guard a customer from the misuse of appliances which the gas company does not own and which it has not undertaken to maintain.

Migdalia Rosado, as administratrix of their estates, brought actions on behalf of Ismael Rivera, Sr. ("Rivera") and Ismael Rivera, Jr. ("little Ismael"), both of whom died on January 5, 1981, of carbon monoxide poisoning caused by an improperly vented gas space heater. She has obtained judgments, based on jury verdicts, of $1,440,000 and $2,100,000 on account of Rivera and little Ismael respectively.

At appropriate points during the trial the defendant moved for directed verdicts and, after return of the verdicts favorable to the plaintiffs, the defendant moved for judgment notwithstanding the verdicts. In testing the correctness of the denial of those motions, we look at the evidence in the light most favorable to the plaintiffs. Everett v. Bucky Warren, Inc., 376 Mass. 280, 282, 380 N.E.2d 653 (1978). Fiorentino v. A.E. Staley Mfg. Co., 11 Mass.App.Ct. 428, 429, 416 N.E.2d 998 (1981). We summarize the facts which the jury could have found on that basis.

On March 14, 1980, Calvin Hunter, a serviceman for Boston Gas Company, responded to a customer request by Migdalia Rosado to turn on gas for the first floor apartment at 35 Torrey Street, Dorchester. Rosado had just moved to those premises. While reading the meter in the basement, Hunter found that the gas was already on but, as part of the routine of his duties, he inspected Rosado's appliances to be sure they were operating safely. A space heater, Hunter found, was far from safe. It had not been vented, as required, to a chimney or flue stack and, as it was being operated, emitted products of combustion, such as carbon monoxide, into the kitchen and adjoining spaces in the apartment.

Hunter called the danger to Rosado's attention. He told her he would have to turn off the supply of gas to the space heater and that she must have her landlord (who had furnished the space heater) install proper venting for the space heater. In accordance with gas company procedures, he attached to the offending heater a red tag on which there appeared in bold black print: "Warning/The condition referred to on the reverse side of/this card must be corrected immediately./ Continued use of the equipment is at your own risk./ BOSTON GAS is NOT responsible for this condition!" On the back side of the warning tag there was a category of defective condition which said, "not vented properly."

Rosado gave the red warning tag to her landlord. She and Rivera made no further use of the space heater for the balance of that heating season. During the summer of 1980, Rivera undertook to vent the space heater on his own. He ran a series of elbows from the vent hole in the space heater and then ran pipe horizontally through a hole which he punched through the kitchen wall. On the outside he attached a clothes dryer vent cap with a damper. This was a grievously defective arrangement. The proper method of venting the space heater was to run piping no smaller than the opening on the appliance on a generally vertical course to a chimney or flue stack. The opening to the air should be unobstructed, i.e., there should not be a damper.

Venting a gas appliance, if properly done, requires a permit from the city of Boston and approval by a city gas inspector. In this instance no permit was obtained or inspection made. Rosado relit the space heater in the autumn of 1980 when the weather became cold. Neither Rosado nor Rivera called the gas company to turn the cock in the gas line to the space heater, which Hunter had left in the off position. Rivera did so himself. It was a task which ordinarily required a ten inch Stillson or adjustable wrench. During the milder weather, the Rosado-Rivera family (there were four minor children in the household) used the space heater without ill effect. When it grew colder in December, Rosado and Rivera put plastic over the windows, thereby shutting off vital replenishment of oxygen in the apartment.

January 4, 1981, was a particularly cold night. The temperature hovered around zero and below. Perforce the space heater ran constantly. Little Ismael awakened around 3:00 A.M. crying. Rivera, for his part, felt somewhat unwell. He and Rosado took little Ismael into their bed. In the morning, Rosado woke to discover Rivera and their child dead. They had suffered carbon monoxide poisoning. Remarkably, the carbon monoxide had not been lethal to her.

The case went to the jury on three theories of negligence: First, that serviceman Hunter's warning inadequately emphasized the deadly hazard inherent in improper venting of a space heater and inadequately emphasized the importance of having the venting done by a plumber or a gas fitter; that it was not a do-it-yourself project. Second, that the gas company had a duty to check back to see if the space heater had been properly installed. Third, that the gas company had a duty to train its meter readers to spot deficient appliance installations and to take action on the basis of their observations, e.g., turning off the gas to the dangerous appliance. The gas company concedes that the adequacy of the initial warning properly went to the jury. See Fiorentino v. A.E. Staley Mfg. Co., 11 Mass.App.Ct. at 434-435, 416 N.E.2d 998. If either of the other two theories, however, should not have gone to the jury, it would be necessary to order a new trial because we have no way of knowing on which basis the jury reached its verdict. Friese v. Boston Consol. Gas Co., 324 Mass. 623, 631, 88 N.E.2d 1 (1949). McInnis v. Tewksbury, 19 Mass.App.Ct. 310, 314, 473 N.E.2d 1160 (1985). Kelley v. Stop & Shop Cos., 26 Mass.App.Ct. 557, 559, 530 N.E.2d 190 (1988).

1. Duty of the gas company to have a "check-back" procedure. Just precisely what constitutes reasonably prudent conduct in particular circumstances is generally left for a jury to decide, guided by instructions from the judge about the factors which the jurors should consider. James, Functions of Judge and Jury in Negligence Cases, 58 Yale L.J. 667, 676-677 (1949). So, for example, in cases in which a gas company has been placed on notice of a gas leak by reports of odor or unusual consumption, the question whether on the particular facts that gas company acted diligently to avert the ensuing explosion or asphyxiation goes to the jury. See, e.g., Barbeau v. Buzzards Bay Gas Co., 308 Mass. 245, 247-248, 31 N.E.2d 522 (1941); Wolff v. Buzzards Bay Gas Co., 353 Mass. 57, 59, 228 N.E.2d 94 (1967).

Courts set the outer limits of care so that a jury does not exact precautions beyond the bounds of reason. Holmes, The Common Law 110, 112 (1881). James, op. cit. at 677. Prosser, Law of Torts § 37 at 206-207 (4th ed. 1971). Harper, James & Gray, The Law of Torts § 15.3 (2d ed. 1986). As Judge Learned Hand put it, "in most cases reasonable prudence is in fact common prudence," but "[c]ourts must in the end say what is required...." The T.J. Hooper, 60 F.2d 737, 740 (2nd Cir.1932) (court decides that an ocean going tug must be equipped with a radio receiving set to be seaworthy). As applied to gas distribution, the following Massachusetts cases illustrate judicial setting of limits: Cadogan v. Boston Consol. Gas Co., 290 Mass. 496, 499-500, 195 N.E. 772 (1935); DeLucia v. Lawrence Gas Co., 340 Mass. 710, 712-713, 166 N.E.2d 731 (1960). Wright v. Northampton Gas Light Co., 341 Mass. 461, 463-464, 170 N.E.2d 482 (1960). Those cases limited the duty of the defendants to act on the basis that the utilities neither owned nor undertook to maintain the malfunctioning appliances. See also Bambus v. Bridgeport Gas Co., 148 Conn. 167, 170, 169 A.2d 265 (1961); Banks v. City of Richmond, 232 Va. 130, 136, 348 S.E.2d 280 (1986); Webb v. Wisconsin So. Gas Co., 27 Wis.2d 343, 349, 134 N.W.2d 407 (1965). Compare Stewart v. Worcester Gas Light Co., 341 Mass. 425, 432-433, 170 N.E.2d 330 (1960), in which the court, after collecting conflicting authorities, left to a jury whether it was reasonably prudent to continue to allow gas to flow in an unused pipe. Contrast Friese v. Boston Consol. Gas Co., 324 Mass. at 628-630, 88 N.E.2d 1 (defendant installed and maintained appliance) and Reil v. Lowell Gas Co., 353 Mass. 120, 127, 228 N.E.2d 707 (1967) (gas company responsible for supply pipe to the gas meter under the company's control).

It is significant, as the cases reflect, whether the defect is in the gas supply system or in the appliance and, if in the appliance, whether the gas company owns it, sold it to the customer, installed it, or assumed a duty of keeping it in good order. See Wright v. Northampton Gas Light Co., 341 Mass. at 463-464, 170 N.E.2d 482. That, however, is not the end of the inquiry. A utility could hardly ignore reports of fumes or other dangerous deficiency in an appliance. See Miller v. Wichita Gas. Co., 139 Kan. 729, 733, 33 P.2d 130 (1934). When the gas company is on notice of a defect with potential for carbon monoxide poisoning it has a duty to call the defect to the customer's attention, to describe the consequences, and to turn off the gas until the appliance is fixed. Ibid.

Here the gas company did call the inadequate venting of the space heater to attention, informed Rosado and Rivera that the condition was dangerous, reinforced the warning with a red warning tag, and turned off the gas. Whether...