(D.C. Civil Action No. 43732) (D.C. Civil Action No. 43975) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before ADAMS, ROSENN, and HUNTER, Circuit Judges
These two consolidated appeals brought by Fred Green, administrator of the estate of James Henry Bruno, seek reversal of the judgments of the United States District Court for the Eastern District of Pennsylvania entered in favor of the three appellees - the Philadelphia Gas Works, Frank Parisi and John DeMarco.*fn1 Bruno died from serious burns suffered in an unfortunate explosion and fire occurring when he struck a match to light a gas burner in the kitchen of his rented home in Philadelphia.
Green brought suit under the Pennsylvania wrongful death and survivor statutes against the Philadelphia Gas Works, as supplier of natural gas to the Bruno home, Parisi, Bruno's landlord, and DeMarco, Parisi's real estate agent. Federal jurisdiction was based on diversity, and Pennsylvania substantive law applied. After a bifurcated trial, the jury returned verdicts in favor of all defendants. We have considered all trial errors alleged by appellant, and, finding them without merit, affirm the judgments of the district court.
At trial, two different theories of the cause of the explosion and fire were presented. Plaintiff's theory was that a natural gas leak in the connector pipe of the Brunos' gas range caused the conflagration. Plaintiff attempted to demonstrate that the negligence of the three appellees caused the gas leak. Defendants' theory, on the other hand, was that the explosion was caused by the existence in the kitchen of gasoline, which Bruno had been using to clean automobile parts. Alternatively, defendants contended, if the explosion had been caused by a natural gas leak, the decedent had assumed the risk of such an occurrence.
Appellant's primary contention of trial error is that, in the absence of any evidence indicating that decedent Bruno was aware of the dangers of a gas leak, the jury should not have been instructed that it could find he had assumed the risk of an explosion. Appellant emphasizes that there is no evidence in the record indicating that decedent was aware of the dangerousness of gas leaks or the existence of a foul smelling gas odor in his home, or, even if he was aware of the odor, that he knew it was natural gas which had explosive combustion potentialities. Appellant points out that Bruno was Puerto Rican, spoke only Spanish, and was not shown to have any special scientific expertise.
Appellees argue that the danger of gas leaks is an ordinary risk appreciated by the community in general, and that the jury was properly allowed to infer that Bruno was aware of the gas smell and of the accompanying risk. They point to the evidence at trial that other members of the Bruno family had smelled gas while living in the house for three months prior to the explosion. They emphasize that Bruno, a 37 year old man, had lived in the United States for fifteen years, was employed as a machinist, and was an amateur automobile mechanic.
The court's instruction to the jury on assumption of risk was:
If you find that Mr. Bruno subjectively knew, that is actually knew that there was the risk of an explosion or of a fire being caused by leaking gas, if he attempted to light the stove, but that nevertheless being aware of an obvious danger, took or assumed the risk of the explosion, and by so doing brought about the injury to himself, even though the precise extent of the injuries might not have been anticipated or known to him, he may not recover.
Assumption of risk, however, relates to a subjective awareness by the plaintiff of a perceptible risk of harm. I advise you, however, that both the possible defenses of contributory negligence and assumption of risk are what are known as affirmative defenses and as such the defendant has the burden of proof on those issues. That is the defendant or defendants asserting such a defense must prove by a preponderance of the evidence that Mr. Bruno himself was contributorily negligent, as I have defined this term to you, or being aware of the risk of harm voluntarily assumed the risk of harm, and that such contributory negligence or assumption of the risk contributed to the happening of the accident in a proximate way.
I further advise you that there is a presumption in law that a decedent was using due care at the time of his death and that he did not negligently or voluntarily bring about his own death, and that he took all normal and reasonable precautions to protect and preserve his life. Thus in the absence of substantive evidence to the contrary which overcomes by a preponderance of the evidence the presumption that the decedent was not contributorily negligent, this presumption would prevail and you would be justified in finding that the decedent was not contributorily negligent and that he did not voluntarily assume the risk of harm.
The charge is based on the principles stated in Restatement of Torts 2d § 496 (1965). There is no dispute among the parties that the charge correctly stated the principles that assumption of risk depends on the subjective state of mind of decedent, that the burden of proving assumption of risk is on defendant, and that because of the presumption of due care given deceased persons, assumption of risk cannot be found unless there was substantive evidence rebutting due care. ...