Scittarelli v. Providence Gas Co.

• Decision Date: 16 June 1980
• Docket Number: No. 78-395-A,78-395-A
• Citation: 415 A.2d 1040
• Parties: 29 UCC Rep.Serv. 1252 Catherine SCITTARELLI v. The PROVIDENCE GAS COMPANY v. The HARDWICK STOVE COMPANY. ppeal.
• Court: Rhode Island Supreme Court

Page 1040

415 A.2d 1040

29 UCC Rep.Serv. 1252

Catherine SCITTARELLI v. The PROVIDENCE GAS COMPANY v. The HARDWICK STOVE COMPANY.

No. 78-395-Appeal.

Supreme Court of Rhode Island.

June 16, 1980.

Higgins, Cavanagh & Cooney, Gerald C. DeMaria, Albert R. Romano, Providence, for plaintiff.

Hinckley, Allen, Salisbury & Parsons, Howard E. Walker, Providence, for Providence Gas Co.

Asquith, Wiley & Ryan, Edward W. Moses, Providence, for Hardwick Stove Co.

OPINION

BEVILACQUA, Chief Justice.

This is a civil action in which a Superior Court jury awarded damages to the plaintiff, Catherine Scittarelli, for personal injuries sustained when the oven door in her kitchen stove flew open, struck her, and tossed her to the floor. The plaintiff filed suit against the Providence Gas Company in 1961. In 1977, the defendant moved for dismissal of the complaint for lack of prosecution, and the plaintiff responded with a motion to assign the case under an amended complaint to the continuous jury trial calendar. The Superior Court denied the defendant's motion and granted the plaintiff's. ¹

The plaintiff's amended complaint in six counts alleged that the retailer of the stove, defendant Providence Gas Company, had committed specific acts of negligence, was negligent under the doctrine of res ipsa loquitur, had breached an express warranty and implied warranties of merchantability and fitness for a particular purpose, and should be held strictly liable. The Providence Gas Company then filed a third-party complaint against the manufacturer of the stove, Hardwick Stove Company, seeking indemnity or contribution for any damage award resulting from the principal action. At the close of plaintiff's case, the Providence Gas Company moved for a directed verdict upon all counts of plaintiff's complaint. The trial justice granted the motion as to counts 4, 5, and 6, premised upon express warranty, strict liability, and res ipsa loquitur, respectively, but denied the motion as to counts 1, 2, and 3, grounded upon negligence and implied warranties of fitness and merchantability.

At the close of all the evidence when all parties rested, defendant renewed its motion for a directed verdict on counts 1, 2, and 3. The defendant Hardwick moved for direction on the third-party complaint. The trial justice reserved decision on defendants' motions and submitted the case to the jury. The jury returned a verdict for plaintiff against defendant Providence Gas Company in the sum of $14,000 and a verdict for Hardwick as to the third-party complaint. Following the jury verdict the trial justice reconsidered defendant Providence Gas Company's motion for a directed verdict and Hardwick's motion for a directed verdict, whereupon he denied defendant Providence Gas Company's motion and granted Hardwick's motion. The gas company moved for a new trial; the motion was denied.

The defendant Providence Gas Company appeals from the trial justice's denial of its motion for a directed verdict against plaintiff on the negligence and implied warranty counts and the trial justice's grant of Hardwick's motion on the third-party complaint. The plaintiff conditionally appeals the direction of verdicts for defendant on two counts, ² one premised on a theory of res ipsa loquitur and the other founded on strict liability, in the event we sustain defendant's appeal. Because we conclude that the trial court should have directed verdicts for defendant on all counts, we need not discuss defendant's appeal in the third-party action.

The facts briefly summarized are as follows. In the autumn of 1959, plaintiff, then sixty-six years old, purchased from defendant a stove manufactured by the Hardwick Stove Company. On November 2, 1959, agents of defendant transported and installed the stove in plaintiff's kitchen. The next day plaintiff set the temperature control of the oven at 350 degrees and placed a roasting chicken in a pyrex dish inside the oven. Sometime thereafter plaintiff noticed that the glass window in the oven door had fogged. As she approached the stove she heard and saw the glass crack. The oven door opened and struck plaintiff just above the waist pushing her over backwards onto the kitchen floor.

The plaintiff's son telephoned the Providence Gas Company to notify it of what had occurred. Gas company servicemen, the day after the accident, replaced the oven door with a windowless door, inspected and tested the stove, and found it fully operational.

In the fall plaintiff sustained injuries to her back for which she was treated over several months. Although plaintiff had a prior history of back problems, she testified that her movement was more restricted after the accident.

I

We note that a record containing the trial justice's reasons for his decision on the motions for directed verdicts is not available to us. Nevertheless, settled Rhode Island law requires the trial justice to view the evidence in a light most favorable to the plaintiff, drawing every reasonable inference therefrom on his behalf, and to deny the motion for a directed verdict if he discerns triable issues upon which reasonable minds may differ. On review we place ourselves in the identical posture of the trial justice; we examine the evidence in the same manner and are bound by the same rules. Geremia v. Benny's, Inc., R.I., 383 A.2d 1332, 1334 (1978); Plouffe v. The Goodyear Tire & Rubber Co., 118 R.I. 288, 294-95, 373 A.2d 492, 495-96 (1977).

To avoid a directed verdict for defendant on the res ipsa and specific-negligence counts, therefore, plaintiff must have established a prima facie case of negligence. Marshall v. Tomaselli, 118 R.I. 190, 195, 372 A.2d 1280, 1283 (1977); Salk v. Alpine Ski Shop, Inc., 115 R.I. 309, 312, 342 A.2d 622, 625 (1975); Gleason v. Almac's, Inc., 103 R.I. 40, 44, 234 A.2d 350, 352 (1967). The plaintiff premised her theory of specific negligence on an allegation that defendant breached its duty to inspect and to test the stove before and after installation in her home and failed to warn her of any defect in the stove. We have recognized a duty in a seller of goods manufactured by another to warn purchasers of a dangerous defect in the product if the seller knows or has reason to know that the product poses a danger to consumers. Incident to this duty to warn is a duty to acquire knowledge about the products through reasonably adequate inspections and tests. In Rhode Island the failure to execute this duty will constitute actionable negligence. Ritter v. Narragansett Electric Co., 109 R.I. 176, 182, 283 A.2d 255, 258 (1971); see San Antonio v. Warwick Club Ginger Ale Co., 104 R.I. 700, 708-09, 248 A.2d 778, 782 (1968). See also Molinari v. Sinclair Refining Co., 111 R.I. 490, 495, 304 A.2d 651, 654 (1973). In order to prove negligent inspection and testing a plaintiff must establish a standard of care with respect to inspection and testing and the defendant's deviation from that standard. See Marshall v. Tomaselli, 118 R.I. at 196, 372 A.2d at 1283; Prosser, Law of Torts § 53 (4th ed. 1971).

From our reading of the transcript we conclude that plaintiff did not set forth, by evidence of either customary practices in the industry or past practices of defendant, an actual standard of care by which defendant should have abided, nor did she hypothesize by expert testimony an industrywide standard of care. Nevertheless, it generally can be presumed that defendant had to exercise reasonable care in the light of the apparent risks involved. 2 Restatement (Second) Torts § 402 at 345 (1965); Prosser, supra § 53. But even were we to assume that some general standard of care for inspecting and testing stoves existed, we find the record in this case devoid of evidence showing that the general standard was breached. The fact of the occurrence alone is inadequate proof of improper inspection and testing. See San Antonio v. Warwick Club Ginger Ale Co., 104 R.I. at 709, 248 A.2d at 782-83; Gleason v. Almac's, Inc., 103 R.I. at 44, 234 A.2d at 352.

The plaintiff claims that she established the inadequacy of the preinstallation and postinstallation inspection and testing. With regard to the first inspection plaintiff called as a hostile witness a Providence Gas Company employee, John Bradshaw, who testified that nineteen years earlier another gas company employee had performed a detailed twenty-one step check on the Scittarelli stove according to a check list dated November 2, 1959. The plaintiff pointed to no instance, however, where the inspector neglected to conduct one of the standard tests or inspections listed on the form, nor did she suggest a procedure not mentioned on the form that should have been followed.

The evidence of the postinstallation inspection was even less probative of negligence. The plaintiff merely elicited from Mr. Bradshaw that neither defendant nor the agents it hired to install the stove usually conducted the same inspection after installation as the gas company performed before delivery. There was no evidence of what actually took place during the installation of the Scittarelli stove.

Mr. Bradshaw did testify, however, that as a general practice the installers turned on a stove to ascertain if it operated after they completed the installation. On this evidence a jury could only speculate about whether defendant through its agents breached any actual or hypothetical duty to inspect or to test the stove once installed.

As additional evidence of defendant's negligence plaintiff submits that an employee of defendant admitted responsibility for the accident. When plaintiff's son, Joseph Scittarelli, telephoned the gas company after the accident to request a repairman, the person he spoke with responded, "Those things happen once in a while, you can't help it. We'll send somebody up." Aside from the lack of evidence establishing the speaker's identity, authority, and knowledge of the accident or of the workings of this type of stove, the...