A. Shapiro Realty Corporation, Plaintiff-appellant, v. Burgess Brothers, Inc., Defendant-appellee.a. Shapiro & Sons, Inc., Plaintiff-appellant, v. Burgess Brothers, Inc., Defendant-appellee, 491 F.2d 327 (1st Cir. 1974)

Plaintiffs (collectively 'Shapiro') owned two buildings in North Adams, Massachusetts, the 'Old Eagle Mill' and an adjacent modern structure built in the 1950's. Shapiro hired defendant Burgess, a Vermont wrecking firm, to tear down the Old Eagle Mill, under a contract which called for burgess to leave the newer building intact. While Burgess was engaged in wrecking the older building, a fire suddenly occurred destroying both buildings. Shapiro brought a diversity action for damages against Burgess in the district court. The jury returned a verdict for Burgess.

The only issue raised on appeal is the adequacy of the court's charge on Shapiro's negligence claim. The court gave a normal negligence charge. It instructed that Shapiro had to prove that it was more likely than not that the fire was proximately caused by Burgess' negligence, and that proof of negligence could be by direct evidence or could be in the form of reasonable inferences drawn from proven facts.¹  The court instructed that there could be no inference of negligence from 'the mere fact an accident happened, considered alone, and standing by itself.'

Shapiro registered a timely objection both to the last-mentioned instruction, and to the court's failure to give requested instructions.²  Under these, the jury would, in essence, have been told that it might infer Burgess' negligence from its exclusive control of the premises or that the burden was on Burgess to prove due care.

The facts can be summarized briefly: Burgess began to dismantle the four story Old Eagle Mill in December of 1970. By the day of the fire, March 31, 1971, much of its floors and much of the roof over the wing had been removed. Debris was piled in the basement. Elsewhere were several bales of rags, some broken carts, and perhaps barrels. There were no known inflammables anywhere. Burgess' men did not smoke and brought to the site no torches requiring gas or other volatiles. Shapiro had responsibility under the contract for shutting off utilities. An electrician had appeared a week or so before the fire to turn off the power, and a day before the fire someone from the gas company came and was understood to have capped the gas line in the basement. Mr. Shapiro testified that his personnel did not go into the Old Eagle Mill, although it was disputed whether fire doors between the new and old buildings had been locked. There was easy ingress to the Old Mill through open outside doors, and most of the windows were out.

On the day of the fire, Mr. Shapiro and his son went by the Mill, looked in, and left. Burgess' men were at work in or near the wing area. They had just removed an elevator from the shaft, using a crane to which was attached a clamshell bucket, when a loud noise was heard. Burgess' employees went outside to investigate, and some minutes later saw smoke from the top of the exposed elevator shaft. They ran to sound the alarm, and soon found the lawer floors of the main section of the Mill to be in flames. There were several explosions. Almost instantly the Mill and the adjoining new building were engulfed. After the fire, nothing remained to tell how it began. No likely source of spontaneous combustion was identified. Except for the Shapiros, father and son, who, while smokers, had not actually entered the Old Mill and had left several hours before the fire, only Burgess' men were known to have been on the premises. However, onlookers were observed on nearby streets prior to the fire.

Plaintiffs' experts testified that the most probable cause of the fire was a dust explosion ignited by sparks from the clashing of the metal jaws of the clamshell. Although the clamshell had been working on the upper stories of the wing, and the fire was first seen on lower stories of the main part of the Mill, it was theorized that a dust explosion chain could have ignited the lower part. Burgess' expert impressively disputed the theory,³  but could come up with none of his own, other than that the debris piled in the basement was somehow ignited. There was a dispute whether good practice called for wetting down the areas being demolished as a safety precaution; Burgess had not done so. A demolition expert called by Burgess testified that he never knew of dust explosions when dismantling buildings, and that wetting down was done for environmental, not safety, purposes, and then only in the summer.

We conclude that Massachusetts law gave the plaintiff no right to instructions beyond those given. The court, apparently responding in part to plaintiff's proffered instructions, told the jury in understandable language that it could rely on circumstantial evidence as proof of negligence and that the plaintiff had to establish merely that defendant's negligent act was probably the cause of the fire. The court did not limit the jury to the dust explosion theory. Its instructions correctly permitted recovery on 'a more generalized inference of negligence' as well as on the particular theory advanced. See United States v. Hull, 195 F.2d 64, 65 (1st Cir. 1952); Cassady v. Old Colony St. Ry., 184 Mass. 156, 68 N.E. 10, 12-13(1910).

Res ipsa loquitur subsumes a variety of subtly different concepts; for this reason, commentators and courts have retreated from the term. See Gelinas v. New England Power Co., 359 Mass. 119, 268 N.E.2d 336, 338 (1971). In Massachusetts the doctrine never causes a shift in the burden of proof, and in recent times has simply been described as

'whether the evidence, considered in its entirety and in its light most favorable to the plaintiff, was sufficient to permit the jury as the trier of facts to infer that some negligent act or omission by the defendant caused the injuries sustained by the plaintiff. The test is not whether the evidence was such that it required the jury to infer negligence by the defendant, but only whether it was sufficient to permit such an inference.' Gelinas v. New England Power Co., supra, 268 N.E.2d at 338-339.

Here plaintiffs 'got to the jury', United States v. Hull, supra, 195 F.2d at 66; but they say the doctrine entitled them to have the judge tell the jury that, in essence, negligence could be inferred from defendant's control and possession of the Old Mill at the time of the fire.⁴ 

The plaintiffs might be right if logic or the law plainly gives rise to such an inference.⁵  While there is little authority on when a res ipsa instruction is required, we assume that in a sufficiently clear case, upon request, an instruction must be given. Cf. Ryan v. George L. Lilley Co., 121 Conn. 26, 183 A. 2 (1936) and Annot., 173 A.L.R. 880 (1948).

But there was here no such readily discernible connection between the fire and Burgess' responsibilities as to require a special instruction. While the sum total of circumstantial evidence would have supported a plaintiff's verdict had there been one, no particular feature of Burgess' relation to the fire, or to the premises, was so suspect that the court had to single it out. We do not say the jury could not have drawn its own inferences from Burgess' control of demolition and, when the fire occurred, of the premises; but the inference of negligence from those facts was not so manifest as to compel calling it to the jury's attention, with the risk of giving it undeserved prominence. Burgess shared control of the premises with Shapiro. The latter was responsible for turning off the electricity and gas. The fire could have started from gas in the basement; a gas company workmen had visited the premises shortly before the day of the fire to cap the pipes. Power remained in the new building, and there was some possibility of an electrical cause. Anyone could have entered the Old Mill from the street and there was perhaps access from the new building. Militating most strongly against any 'common-sense' inference was the inability of either party's experts to suggest-- apart from the dust explosion theory, which the jury plainly rejected-- how the fire began. The possibilities were canvassed in detail at trial. Where the experts had failed, it would have been illogical for the court to specifically point out to the jury that the event might speak for itself.

The Massachusetts cases reveal no judicial rule of thumb supportive of plaintiff's contention. Outbreak of a fire is not evidence of negligence on the part of the owner of premises. Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 16 N.E.2d 688 (1938). In Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234, 200 N.E. 883 (1936), the court declined to hold that common knowledge would warrant a finding of the owner's negligence from the mere fact of an explosion in an oil refinery. In Zezuski v. Jenny Mfg. Co., 1973 Mass.Adv.Sh. 475, 293 N.E.2d 875 (1973), the court sustained a jury verdict against a supplier of gasoline for injuries from an explosion occurring during delivery. There is language in Zezuski that negligence could be inferred from the supplier's 'exclusive control' of the truck and hose, but other evidence supporting the verdict is also cited, and the case most likely reflects the higher duty of care imposed upon those dealing in ultra-hazardous substances. W. Prosser, Torts 78 (4th ed. 1971). Cf. Triangle Dress, Inc. v. Bay State Service, Inc., 356 Mass. 440, 252 N.E.2d 889 (1969). In modern times, the Massachusetts court has most often avoided judicial rules of thumb except in clear cases, see Wilson v. Colonial Air Transport, Inc., 278 Mass. 420, 180 N.E. 212 (1932); and has left the jury to its own inferences.

Proposed instructions 2A and 3 which, in large part, were invitations to infer negligence from defendant's purported 'exclusive control and possession' were thus properly denied. Request No. 4 added nothing legally necessary to what had been said and was more favorable in tone to plaintiff than the court had to accept. The court was not required to put its thumb to the scales.

Request No. 2 was not a res ipsa instruction but was based on the recent case of Knowles v. Gilchrist Co., 1972 Mass.Adv.Sh. 1783, 289 N.E.2d 879, holding that a bailee, once a bailor proves delivery, has the burden of proving that he exercised dur care to prevent loss of the property. As a possible harbinger it is not without interest. Burgess agreed to demolish the Mill and to leave the new building intact, and might be likened to a bailee who contracts to hold and restore property intact. But we think it impermissible to read Knowles as setting down a rule applying not only to bailees but to contractors who, because of fire or other disasters, fail to comply with their contract. The court said, 'our decision in this case creates only a specific rule for a specific class of cases, bailment for hire', Id. n. 4, and its analysis was largely based upon the rules growing up in bailment cases. There are significant differences between a bailee and a contractor like Burgess. While the latter exercises some control, he shares it with others; a bailee, on the other hand, retains exclusive dominion. Whether to extend the Knowles rule to contractors is a matter we must leave to the Massachusetts courts.

Finally, we find no error in the court's instruction that there could be no inference of negligence from the mere fact an accident happened, 'considered alone, and standing by itself.' The instruction did not negate the jury's right to infer negligence from the facts as a whole or any part of them. See Carmody v. Boston Gaslight Co., 162 Mass. 539, 39 N.E. 184, 185 (1895).

Affirmed.