Filed: May 27, 2005
Latest Update: Feb. 21, 2020
Summary: ROBERTSHAW CONTROLS COMPANY, AMERICAN WATER HEATER COMPANY, and, AMERIGAS PROPANE, L.P., AmeriGas is not the plaintiff in a warranty case, and had no duty, to preserve evidence or give prompt notice to American Water Heater, so that the latter could inspect the evidence before it was, destroyed.
United States Court of Appeals
For the First Circuit
No. 04-1262
DANIEL T. SMITH, Individually and as Executor of the ESTATE OF
NORA M. SMITH,
Plaintiff, Appellant,
v.
ROBERTSHAW CONTROLS COMPANY, AMERICAN WATER HEATER COMPANY, and
AMERIGAS PROPANE, L.P.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Mark S. Bourbeau, with whom Bourbeau & Associates P.C. was on
brief, for appellant.
Michael W. Gallagher, with whom Andrea S. Batchelder and
Gallagher & Cavanaugh were on brief, for appellee Robertshaw
Controls Company.
Maynard M. Kirpalani, with whom Kathleen M. Colbert, Helen E.
Tsingos, and Wilson, Elser, Moskowitz, Edelman & Dicker LLP were on
brief, for appellee American Water Heater Company.
Frank W. Beckstein, III, with whom Catherine M. Costanzo and
Nelson, Kinder, Mosseau & Saturley, P.C. were on brief, for
appellee AmeriGas Propane, L.P.
May 27, 2005
LIPEZ, Circuit Judge. This personal injury case stems
from a horrific accident in which plaintiff-appellant Daniel Smith
was badly burned while attempting to light a propane water heater
in his basement, allegedly due to a faulty control valve. Smith
sued the company that made the control (Robertshaw Controls
Company), the company that made the water heater (American Water
Heater Company), and the company that supplied the gas (AmeriGas
Propane). The district court granted summary judgment to all three
defendants.
We affirm summary judgment for both American Water Heater
and Robertshaw on the basis that notice of the claim was
unreasonably late and defendants were thereby prejudiced, contrary
to the requirements of Massachusetts warranty law. We affirm
summary judgment for AmeriGas on the basis that it had no legal
duty to Smith.
I.
A. Factual Background
Because this case was resolved on summary judgment, we
recite the facts in the light most favorable to the non-movant
Smith, "drawing all reasonable inferences in his favor." Terry v.
Bayer Corp., 145 F.3d 28, 30 (1st Cir. 1998).
1. The Robertshaw Unitrol 110
In the early 1950s, Robertshaw learned of serious
accidents caused by defects in the Unitrol 110 gas control valve
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that it manufactured for use on propane water heaters. The
problems related to an interlock mechanism, known as the "index
plate," that was supposed to prevent the reset button from being
depressed while the gas cock knob was turned. In 1957, Robertshaw
implemented three changes -- a stronger reset button, a thicker
index plate, and a new gas cock knob -- to fix these problems.
In 1974, Robertshaw notified the Consumer Product Safety
Commission ("CPSC") of the defect, stating that it had been
informed of one fatality and one non-fatal injury. In 1981, the
CPSC concluded that Robertshaw had substantially understated the
number of incidents; apparently Robertshaw had received 147
liability claims by 1974, including forty-eight deaths and eighty-
nine serious injuries.
Robertshaw issued two recall notices under CPSC
supervision, one in 1981 and another in 1984. Robertshaw estimated
that approximately 1,000 defective controls were in use, primarily
"on water heaters located in rural areas, such as . . . in vacation
or weekend homes." A homeowner could determine if a control was
defective by examining the date code on the bottom of the control.
According to the recall notices, an alternate method to identify
the defective controls was to examine the position of the index
pointer relative to the word "PILOT" -- if it lay under the "T" it
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was a pre-1957 defective model, and if it lay between the "L" and
the "O," it was a post-1957 model not subject to the recall.1
2. The Accident and Its Aftermath
On May 24, 1997, Daniel Smith descended to the basement
of his Dennis, Massachusetts vacation cottage to light the pilot
light of his liquid propane water heater. The heater had a Unitrol
110 gas control. While Smith was trying to light the pilot light,
a fireball erupted from beneath the heater, engulfing and igniting
his clothing and flesh. He somehow managed to exit the basement --
he suffered some memory loss as part of the accident -- and
extinguish the fire by rolling on the lawn. Over forty percent of
his body was burned. After a neighbor drove him to a local
hospital, Smith was airlifted to Boston for more advanced
treatment. At some point he slipped into a coma, and would remain
comatose for three months. The Dennis Fire Department, Dennis
Police, and Massachusetts State Police all investigated the fire
and concluded that the fire originated at the water heater. The
Fire Department took several photographs of the water heater.
Four days after the accident, AmeriGas sent an
experienced service technician, Steven Lovell, to inspect the
propane system. Smith's daughter, Maureen Howell, was present
1
There were other, unrelated problems with the Unitrol 110.
One problem involved accumulated sediment forcing the valve into
the open position. That problem was fixed in the 1980s by a wire
screen that would filter out sediment.
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during Lovell's inspection. Determining that there was a small
leak in the system, Lovell disconnected and capped off the gas line
to the heater. He also "red tagged" the heater to indicate that it
should not be used. On the red tag, in a space marked "Unsafe
Conditions," he wrote, "Unitrol 110 gas valve is under recall
list." He also prepared a work order that stated "Unitrol 110 gas
valve on recall list." He told Howell that the valve had been
recalled, and showed her an illustrated recall manual with a
drawing of the valve and a note that it had been recalled.2 After
returning to AmeriGas, Lovell told his superiors that he wanted to
return to the Smith home to reinspect the valve because it appeared
to be subject to recall but he was not entirely sure. AmeriGas,
however, did not send him back out to recheck the valve.
While Smith languished in a coma, Howell hired licensed
gasfitter Ronald Hague to remove the water heater (which could no
longer be used) and preserve it in case an insurance adjuster
wished to examine it. Hague stored the heater at his yard. After
about a year, a "scrap guy" who had come to clean the yard removed
the heater, possibly mistaking it for junk, and presumably
destroyed it.
Meanwhile, Smith eventually recovered from the coma, but
still required extensive medical treatment and several more months
2
At his deposition three years later, Lovell claimed that,
though he generally carried his recall manual with him, for some
reason he didn't have it when he inspected Smith's heater.
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of hospitalization. Even after extensive surgery, he suffers
severe and permanent disfiguring injuries.
B. Procedural History
In May 2000, Smith filed suit against Robertshaw,
American Water Heater, and AmeriGas in Massachusetts state court.3
Defendants removed the case to federal court on the basis of
diversity of citizenship.
The claims against Robertshaw and American Water Heater
were based on strict products liability. As interpreted by the
district court, without objection, these were treated as claims of
breach of the implied warranty of merchantability under the Uniform
Commercial Code, Mass. Gen. Laws ch. 106, § 2-314.4 Smith did not
plead negligence against Robertshaw or American Water Heater.
The claims against AmeriGas were founded on a different
theory. The complaint alleged that when AmeriGas sent a repairman
in response to Smith's August 1995 service call concerning a
problem unrelated to the water heater, it voluntarily assumed a
duty to inspect the entire propane system, including the water
heater, and to warn Smith of any defects.
3
The complaint also named other defendants who are not parties
to this appeal.
4
Massachusetts does not recognize strict products liability in
tort. The district court noted that "the parties have treated the
case as if it were pled properly under Massachusetts law to allege
the recognized cause of action for breach of an implied warranty of
merchantability under the Uniform Commercial Code," and therefore
it did the same. So do we.
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Regrettably for Smith, the water heater and allegedly
faulty valve had been lost. Nonetheless, the complaint alleged
that Smith's Unitrol 110 control was of the same type that had been
recalled, and was defective and unreasonably dangerous when
manufactured. Robertshaw denied that Smith's control was subject
to the recall. Without the actual valve, Smith had no direct
evidence that it had been recalled. Instead, he only had
photographs of the water heater that had been taken by the Dennis
Fire Department.
Smith did hire an expert in propane fire investigation,
David Cox, who could testify that the fire had originated from the
base of the water heater, and that the gas that had ignited must
have come through the main burner while the pilot light was out --
just the occurrence that the Unitrol 110 is supposed to prevent.
However, even assuming there was a flaw in the gas valve, Smith
could not prove directly that it was a manufacturing or design
defect, rather than the result of poor maintenance or abuse.
Smith decided to pursue as his primary (but not sole)
theory that the valve had the same defect as those subject to the
recall.5 He submitted a Freedom of Information Act request to the
CPSC for documents from its investigations and the two recalls, but
the CPSC responded that it had lost the relevant records. As part
5
Alternate theories of causation included accumulated sediment
forcing the valve into an open position. See supra note 1.
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of the discovery process, Smith submitted a 116-item Request for
Production of Documents ("RPD") to Robertshaw. Smith sought, inter
alia, documents concerning any control of the same make and model
as the control that was attached to Smith's water heater, and "any
similar Robertshaw Controls."
Robertshaw, however, had concluded, from its examination
of the fire department photographs, that Smith's control was
produced between 1957 and 1960, and was not subject to the recall.
It objected to all questions relating to the recall, and produced
for deposition Steven Cropp, its Vice President of Quality, who
testified that, based on the photographs, the control was not
subject to the recall.
In June 2001, Smith moved to compel discovery, arguing
that Robertshaw had unjustifiably avoided the discovery requests in
the RPD, and that Cropp had been non-responsive to questions
related to the recall. Robertshaw opposed the motion, arguing that
Cropp had determined that Smith's control was not subject to the
recall, and therefore discovery about the recall would be
irrelevant. The district court agreed and denied the motion to
compel.
Smith then retained William Kitzes, an expert in safety
management and compliance with industry and government standards.
Through Kitzes, Smith was able to obtain other records relating to
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the recall, such as internal Robertshaw memoranda, that had been
produced in other litigation.
After the close of expert discovery, defendants moved in
limine to exclude certain expert testimony by Cox and Kitzes.
Additionally, American Water Heater and AmeriGas -- but not
Robertshaw -- moved for summary judgment.6
On December 31, 2003, the district court granted the
motions to preclude Cox from testifying about "the existence of a
defect in the mechanical design or manufacture of the Unitrol 110
gas control that was installed on the water heater in the
plaintiff's house," because Cox was "not qualified by education,
training, or experience to testify as an expert in mechanical
design in general or in the mechanical design of such devices as
the Unitrol 110 control in particular." However, it denied the
motions insofar as they sought to prevent Cox from testifying, as
a fire investigator, about the cause and origin of the fire. The
court also granted AmeriGas's motion to exclude the testimony of
Kitzes, on the grounds that Kitzes' testimony "depend[s] on
proposed testimony by Mr. Cox that the Unitrol [110] control at
issue was defective," and therefore, absent such testimony, was
irrelevant.
6
The record does not reveal why Robertshaw did not move for
summary judgment at this time. At the omnibus motion hearing on
December 18, 2003, Robertshaw's counsel began his argument by
saying "I don't have a motion for summary judgment."
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In the same order, the district court granted summary
judgment for the two moving defendants, American Water Heater and
AmeriGas. The judgment in favor of American Water Heater rested on
two independent grounds. First, Smith had no expert who could
competently testify that the valve was defective and unreasonably
dangerous when sold; he had not adduced sufficient evidence to
create a genuine dispute of material fact as to whether the control
was subject to the recall; and he was not entitled to the inference
of res ipsa loquitur because the accident was out of the common
experience of a lay jury. Second, Smith had failed to provide
prompt notice of his claim as required for claims of breach of
warranty under Massachusetts law, and, because the heater had been
destroyed in the interim, American Water Heater was prejudiced by
the delay. As to AmeriGas, the court held that the company's
response to a 1995 service call relating to a leak in Smith's back
yard did not give rise to a duty to inspect the water heater.
On January 7, 2004, Robertshaw moved for summary judgment
on the basis that, without expert testimony or evidence that the
control was subject to the recall, Smith could not prevail on
theories of negligence,7 breach of warranty by selling a defective
and unreasonably dangerous product, or res ipsa loquitur. That
7
As noted above, Smith had not actually pled a claim of
negligence against Robertshaw. Nevertheless, Robertshaw's motion
for summary judgment argued that "plaintiff cannot sustain his
burden of proof on a theory of negligence."
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same day, the district court granted Robertshaw's motion without
further opinion. Smith timely appealed.
II.
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We
review a district court's grant of summary judgment de novo. Uncle
Henry's, Inc. v. Plaut Consulting Co., 399 F.3d 33, 41 (1st Cir.
2005). We are not limited to the district court's rationale, but
rather may affirm "on any basis apparent in the record."
Id.
We begin with the breach of warranty claims against
American Water Heater, brought on Smith's own behalf and as a loss
of consortium claim by his wife. As we have noted, Smith pled
these as strict products liability claims and, technically,
Massachusetts does not recognize strict products liability in tort.
However, the Massachusetts "Legislature has transformed warranty
liability into a remedy intended to be fully as comprehensive as
the strict liability theory of recovery that has been adopted by a
great many other jurisdictions." Back v. Wickes Corp.,
378 N.E.2d
964, 968 (Mass. 1978); see also Swartz v. Gen. Motors Corp.,
378
N.E.2d 61, 62 (Mass. 1978) ("[T]here is no 'strict liability in
tort' apart from liability for breach of warranty under the Uniform
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Commercial Code."). Hence, the parties and the district court
treated the strict products liability claims as breach of warranty
claims. See supra note 4.
Because of its UCC origins, warranty liability in
Massachusetts contains certain technical requirements not found in
strict tort liability. One such requirement is prompt notice.
Under Massachusetts law, "the buyer must within a reasonable time
after he discovers or should have discovered any breach notify the
seller of breach or be barred from any remedy." Mass. Gen. Laws
ch. 106, § 2-607(3)(a); Sacramona v. Bridgestone/Firestone, Inc.,
106 F.3d 444, 448-49 (1st Cir. 1997) ("[A] plaintiff must give
reasonably prompt notice of his warranty claim to the potential
defendant. . . ."). This requirement serves to "inform the seller
of a breach and thereby allow for settlement through negotiation."
Delano Growers' Coop. Winery v. Supreme Wine Co., 473 N.E.2d 1066,
1072 (Mass. 1985). The "notice" need not take any particular form:
The content of the notification need merely be
sufficient to let the seller know that the
transaction is still troublesome and must be
watched. There is no reason to require that
the notification which saves the buyer's
rights under this section must include a clear
statement of all the objections that will be
relied on by the buyer . . . . Nor is there
reason for requiring the notification to be a
claim for damages or of any threatened
litigation or other resort to a remedy. The
notification which saves the buyer's rights
under this Article need only be such as
informs the seller that the transaction is
claimed to involve a breach, and thus opens
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the way for normal settlement through
negotiation.
UCC Official Text with Comments (1962) ("UCC Comments") § 2-607,
cmt. 4; see also, e.g., Delano Growers' Coop. Winery, 473 N.E.2d at
1072 (oral notice can suffice).
Whether notice is reasonably prompt "depends on the
reasonableness of the buyer's behavior in the circumstances."
Delano Growers' Coop. Winery, 473 N.E.2d at 1072-73; see also UCC
Comments § 2-607, cmt. 4 ("'A reasonable time' for notification
from a retail consumer is to be judged by different standards [than
a merchant buyer] so that in his case it will be extended, for the
rule of requiring notification is designed to defeat commercial bad
faith, not to deprive a good faith consumer of his remedy.").
Compare P & F Constr. Corp. v. Friend Lumber Corp., 575 N.E.2d 61,
64 (Mass. App. Ct. 1991) (three and one-half months' delay in
notice was unreasonable where doors delivered to construction job
site were wrong size) with Goldstein v. G.D. Searle & Co.,
378
N.E.2d 1083, 1088-89 (Ill. App. Ct. 1978) (four years' delay in
notice was reasonable where consumer who used defendant's oral
contraceptives suffered stroke, which may have reduced her ability
to determine what caused the stroke).
Even if the notice is unreasonably late, however,
"[f]ailure to give notice shall not bar recovery . . . unless the
defendant proves that he was prejudiced thereby." Mass. Gen. Laws
ch. 106, § 2-318. Unreasonably late notice and prejudice are
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separate requirements, and both must be present in order for the
defense to succeed. If the notice was unreasonably late but there
was no prejudice -- or if the defendant was prejudiced, but the
timing of the notice was reasonable under the circumstances -- then
the defense is ineffective and the plaintiff's claim survives. But
when the notice is unreasonably late and the defendant is
prejudiced thereby, the claim is barred. See Sacramona, 106 F.3d
at 448-49 ("[A] plaintiff must give reasonably prompt notice of his
warranty claim to the potential defendant; if he fails to do so,
and the defendant is thereby prejudiced, the warranty claim is
barred even if it is brought within the statute of limitations.");
Hayes v. Ariens Co., 462 N.E.2d 273, 275 n.2 (Mass. 1984) (same).
Finally, while the late notice defense is a jury issue, summary
judgment will be appropriate if "a reasonable jury would . . . have
been compelled to find prejudice."
Sacramona, 106 F.3d at 449.
Smith's claim accrued on May 24, 1997. The state court
complaint was filed on May 22, 2000 -- almost three years later,
and just days before the three-year statute of limitations was due
to expire. See Mass. Gen. Laws ch. 106, § 2-318 ("All actions
under this section shall be commenced within three years next after
the date the injury and damage occurs."); Fine v. Huygens, DiMella,
Shaffer & Assocs., 783 N.E.2d 842, 845-46 (Mass. App. Ct. 2003)
(§ 2-318's three-year statute of limitations applies to warranty
claims alleging physical injury). Smith has not suggested that he
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gave American Water Heater any notice of his claim other than the
filing of the complaint. He does not argue that the notice was
prompt, nor that the delay was excusable. Rather, he disputes only
whether American Water Heater was prejudiced by the delay.
The loss of material evidence usually establishes
prejudice:
[A]ssuming an unreasonable delay in notice,
the prejudice showing is relatively easy: it
is enough that the delay may well have
deprived the defense of useful evidence. No
showing is required that lost evidence would
inevitably have altered the outcome. . . .
[T]o show prejudice based on a lack of notice,
the defendants needed only to prove that
evidence was lost that might well have helped
them . . . .
Sacramona, 106 F.3d at 449; see also Castro v. Stanley Works,
864
F.2d 961, 964 (1st Cir. 1989) ("[P]rejudice may result when
'evidence which may reasonably have been developed by prompt
investigation has been lost.'") (citation omitted). That is the
case here. The water heater, including the potentially defective
valve, was destroyed during a period when Smith could have given
American Water Heater notice of his claim. As American Water
Heater puts it, "for over one year after the accident, for over six
months after Smith came out of his coma and close to two years
before [American Water Heater] was given notice of this claim, the
critical notice was available but the plaintiff failed to put
[American Water Heater] on notice of his claim." If the evidence
had not been destroyed, American Water Heater might have been able
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to prove that the water heater, including the valve, was in good
working order, or that it had been damaged by misuse since its sale
some thirty or more years earlier. Its inability to do so, due to
the lack of notice, is prejudicial.
Smith has three responses. First, he argues that he is
just as prejudiced as American Water Heater because he cannot
examine or make use of the water heater to prove his case either.
Thus, he derives no unfair advantage. Second, the evidence was
destroyed through no fault of either Smith or Howell, his
daughter.8 Third, it cannot be presumed that access to the
evidence would have helped American Water Heater; it might well
have hurt its case, e.g., if the control was clearly subject to the
recall.
These points are all true but legally irrelevant. The
question is simply whether the defendant was prejudiced by the lost
evidence, not whether the plaintiff was also prejudiced, or who was
prejudiced more, or whether the plaintiff (as opposed to some third
party) was responsible for the loss. And the defendant need not
show that the evidence could have helped it; it suffices that "the
8
Indeed, Smith suggests that AmeriGas was somehow at fault for
the loss of the evidence, because its employees did not record the
identifying codes from the water heater and control valve nor
preserve the physical evidence. This argument is misguided.
AmeriGas is not the plaintiff in a warranty case, and had no duty
to preserve evidence or give prompt notice to American Water Heater
so that the latter could inspect the evidence before it was
destroyed.
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delay may well have deprived the defense of useful evidence."
Sacramona, 106 F.3d at 449. American Water Heater was entitled to
summary judgment because the notice was unreasonably late and the
loss of evidence was prejudicial.
The late notice defense also provides a basis for
affirming the district court's grant of summary judgment against
Robertshaw.9 Smith's claims against Robertshaw were also based
exclusively on strict products liability, again interpreted by the
district court to mean warranty liability. Since Smith claims that
the Unitrol 110 control valve was defective, and the control valve
has been lost, Robertshaw suffered the same prejudice as did
American Water Heater from the loss of evidence during the
unexcused delay. Therefore, we affirm summary judgment for
9
Robertshaw did not raise this defense in its motion for
summary judgment below or on appeal, and we could deem it waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
However, "in certain circumstances we have the discretion to
overlook waiver by inadequate argument," United States v.
Rodriguez-Marrero,
390 F.3d 1, 18 (1st Cir. 2004), cert. denied,
125 S. Ct. 1620 (2005), and this is such a case. First, Robertshaw
pled late notice as an affirmative defense in its answer. Second,
American Water Heater argued the late notice defense both at
summary judgment and on appeal, stating arguments that apply
equally to Robertshaw. Third, Smith had a full opportunity to
respond to American Water Heater's late notice argument, and
provided a reasoned (if unsuccessful) response to that argument.
Fourth, the basis for affirming the district court's judgment for
Robertshaw on the grounds of late notice is "apparent in the
record." Uncle
Henry's, 399 F.3d at 41.
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Robertshaw on the basis of late notice resulting in prejudice by
loss of evidence.10
III.
We turn to the claims against AmeriGas. Smith claims
that AmeriGas negligently failed to inspect his propane system and
warn him of the alleged defect in the Unitrol 110 control. This
claim fails because AmeriGas had no duty to inspect and warn.
Smith had no service agreement with AmeriGas. His
contract was for propane delivery to an outside underground tank,
not for service or safety inspections. In the thirty years
preceding the accident, Smith had made only one request for
service. In 1995, Smith called AmeriGas because he smelled leaking
gas in his backyard. The company sent a licensed
plumber/gasfitter, who found (and fixed) a corroded pipe at ground
level outside the cottage. His contact with the water heater was
minimal: since he had shut off the gas in order to fix the pipe, he
re-lit the pilot light on the water heater after he turned the gas
10
We therefore need not decide whether the district court
abused its discretion in denying Smith's motion to compel
discovery. We do note that it is rare for us to reverse such a
decision. In such cases, "[t]he hurdle which the appellant must
overcome to prevail is high. . . . 'We will intervene in such
matters only upon a clear showing of manifest injustice, that is,
where the lower court's discovery order was plainly wrong and
resulted in substantial prejudice to the aggrieved party.'"
Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d
189, 191-92 (1st Cir. 2001) (quoting Mack v. Great Atl. & Pac. Tea
Co.,
871 F.2d 179, 186 (1st Cir. 1989)). That showing would be
difficult on the facts of this case.
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back on. Smith did not ask him to inspect the water heater or any
other aspect of his propane system.
Smith, however, notes that in the 1980s AmeriGas adopted
a voluntary industry safety program called "GAS Check," about which
Smith's proposed expert Kitzes was prepared to testify. Smith
argues that, by adopting GAS Check, AmeriGas voluntarily assumed a
duty to inspect and warn, and because the repairman did not perform
a GAS Check inspection, AmeriGas breached that duty.
"Massachusetts recognizes that 'a duty voluntarily
assumed must be performed with due care,' and . . . [has] approved
the principles pertaining to voluntary assumption of a duty as set
forth in the Restatement (Second) of Torts § 323 (1965)." Cottam
v. CVS Pharmacy, 764 N.E.2d 814, 821-22 (Mass. 2002) (quoting
Mullins v. Pine Manor Coll.,
449 N.E.2d 331, 336 (Mass. 1983)).
The Restatement (Second) of Torts § 323 (1965) provides:
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for the
protection of the other's person or things, is
subject to liability to the other for physical
harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care
increases the risk of such harm, or
(b) the harm is suffered because of the
other's reliance upon the undertaking.
We assume, arguendo, that if the repairman had conducted
a GAS Check inspection of the propane system, he would have
discovered a dangerous defect in the water heater. Even so,
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AmeriGas had no legally enforceable duty to conduct a GAS Check (or
any other) inspection of the water heater. The repairman's failure
to inspect the water heater may not have diminished a risk that
could have been diminished, but it did not increase the risk of
that harm. Nor could Smith have relied upon AmeriGas to conduct an
inspection. He never asked AmeriGas to inspect the water heater,
nor did AmeriGas represent that it would do so. Put simply, a
service call to fix a gas leak in the backyard does not, without
more, create a duty to inspect a water heater. The district court
properly granted summary judgment to AmeriGas because it had no
legal duty.
IV.
The tragedy of Smith's accident was compounded by the
inadvertent loss of virtually all material evidence a year later.
Unfortunately for Smith, in these circumstances, Massachusetts law
provides appellees Robertshaw and American Water Heater with a
complete defense, and assigns no duty at all to appellee AmeriGas.
The judgment of the district court is affirmed.
So ordered.
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