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October 26, 1971

Fred GREEN, Administrator of the Estate of James Henry Bruno a/k/a Jaime Perez Bruno, Deceased
PHILADELPHIA GAS WORKS, Division of the United Gas Improvement Company. Fred GREEN, Administrator of the Estate of James Henry Bruno a/k/a Jaime Perez Bruno, Deceased v. Frank PARISI, Individually and as Trustee for Dorothea Parisi et al.

Vanartsdalen, District Judge.

The opinion of the court was delivered by: VANARTSDALEN

VANARTSDALEN, District Judge.

 The plaintiff has moved for a new trial. The suit was brought under the Pennsylvania Wrongful Death Statute, Pa. Stat. tit. 12, § 1602 (1953), and the Survival Statute, Pa. Stat. tit. 20, § 320.601 (1950) and jurisdiction is founded upon diversity. After a bifurcated trial, the jury rendered a verdict for all defendants on the question of liability.

 During the course of the trial, two distinct theories of the cause of the fire were argued. The plaintiff contended that the faulty installation of the used stove coupled with the failure of the gas company to properly inspect prior to turning on the gas and failing to shut the gas off at the curb when they became aware of the gas leak caused a gas buildup in the kitchen which exploded when the deceased lit the match. The defendants contended that the deceased had been cleaning automobile parts in a container of gasoline just prior to his lighting the stove and when he lighted the match his saturated clothing and/or the container burst into flames. Considerable expert testimony and evidence was submitted supporting both of these divergent theories.

 Plaintiff's first allegation of prejudicial error is that the jury should not have been charged on assumption of risk since there was no evidence to support a finding of assumption of risk. This Court agrees with plaintiff's position to the extent that the law of assumption of risk should not have been charged if there was no evidence in the case from which the jury could conclude that the deceased knew of the danger of a natural gas explosion, appreciated that risk and voluntarily accepted that risk when he chose to light the stove. Restatement (Second) of Torts § 496D, 496E (1965). In making this determination, this Court was faced with a substantial problem. The death of Mr. Bruno made a determination of his subjective knowledge and appreciation of risk difficult because he was not available to testify at trial. In addition, he is presumed to have exercised due care at the time of his death, although that presumption may be rebutted by testimony to the extent that the issue should be submitted to the jury. Laubach v. Haigh, 433 Pa. 487, 252 A. 2d 682 (1969); Bragdon, Admr. v. Pittsburgh Railways Co., 375 Pa. 307, 100 A. 2d 378 (1953). However, it has been recognized that the requisite knowledge and appreciation can be evidenced by the circumstances surrounding the accident and by the fact that the danger is one commonly recognized by the public. Comment d to Section 496D of the Restatement (Second) of Torts (1965) states that "[one] who has spent a substantial time upon particular premises ordinarily would be found in fact to understand and appreciate the normal, ordinary risks of those premises. * * *" This rule is made more significant when the danger being confronted is one which is commonly appreciated by the community in general. In a personal injury case the appreciation of the risk can be deemed present even against a denial by the injured party where the danger of a particular condition is ordinarily known by persons in the surrounding community. This rule should also be applicable in a death case, permitting a jury to make a factual determination.

 The Schentzel court established the plaintiff's awareness and appreciation of the risk by the following reasoning:

"Plaintiff was a woman 47 years of age. There is nothing whatever in the record to support an inference that she was of inferior intelligence, that she had sub-normal perception, or that she had led a cloistered life. Consequently, she must be presumed to have been cognizant of the 'neighborhood knowledge' with which individuals living in organized society are normally equipped. We think the frequency with which foul balls go astray, alight in the grandstand or field, and are sometimes caught and retained by onlookers at baseball games is a matter of such common everyday practical knowledge as to be a subject of judicial notice. It strains our collective imagination to visualize the situation of the wife of a man obviously interested in the game, whose children view the games on the home television set, and who lives in a metropolitan community, so far removed from that knowledge as not to be chargeable with it." Id. at 188, 96 A. 2d at 186.

 While many of the recent cases applying this doctrine have involved injuries received during sporting activities, e.g., Taylor v. Churchill Valley Country Club, 425 Pa. 266, 270 n., 228 A.2d 768 (1967), this logical approach to assumption of risk is applicable in the case of Mr. Bruno.

 There was no evidence presented in this case that would indicate that Mr. Bruno was of inferior intelligence, had subnormal perception or, because he only spoke Spanish, was shut off from the society in which he lived. There was testimony that Mr. Bruno was 37 years old and that he had lived in this country for 15 years. He was a machinist by vocation, which included setting up and fixing machines, and was an automobile mechanic by avocation. For at least three months, he lived in a home with gas heat and with a gas stove. His family testified that they smelled natural gas during these three months and were disturbed by it and apparently aware of its dangers. The smell was strongest in the kitchen. Among persons living in a home with a gas stove, it is a matter of common everyday practical knowledge that the smell of natural gas in the kitchen is a warning of danger from asphyxiation or from an explosion should a match be lighted. In addition, if the jury believed that the fire on November 5th was caused by a gas explosion, they could also conclude that because of the considerable concentration of gas in the kitchen, the odor of gas must have been very strong that morning. All of these factors taken together are clearly evidence from which the jury could conclude that Mr. Bruno, on the morning of November 5th, knew of the strong odor of natural gas in the kitchen, was aware of the danger this presented and appreciated the risk that an explosion could occur when he voluntarily struck the match to light the stove. Therefore, the jury was properly charged on assumption of risk and under these facts it would have been improper for the Court to exclude assumption of risk from this case. See Comment e of Section 496D, Restatement (Second) of Torts (1965).

 My charge on assumption of risk is particularly mandated by the Third Circuit's decision in Green v. Sanitary Scale Co., 3 Cir., 431 F.2d 371 (1970). In that case the district court judge failed to charge on assumption of risk, and the Court of Appeals reversed the plaintiff's verdict. The plaintiff, a boy, had pushed meat into an electric meat grinder with his bare hand, his fingers were caught in the gears and four of his fingers had to be amputated. The question was whether the evidence indicated that the plaintiff was aware of the risk that he would or was likely to be injured by his conduct. The Court emphasized the importance of leaving issues of assumption of risk for the jury.

"We would usurp the traditionally broad discretion of juries to apply their common sense were we to declare that a jury which has heard a party testify that he knew the danger of putting his hand in a moving gear was barred from drawing the inference that he also knew there was a risk in putting his hand too close to the gear, simply because he had not acknowledged that he was expressly aware of that extent of the risk." Id. at 374.

 While the Third Circuit was dealing with a personal injury case in which the plaintiff had taken the stand, the emphasis the court placed on leaving this issue to the jury is ...

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