Torts

Fact pattern

A homeowner hires a plumber to repair a broken pipe. The pipe is behind a wall on the second floor of the house. To get to the pipe, the plumber first cuts a small access hole in the wall. He then makes the repair by splicing in a new section of pipe to replace the broken section. 

The house has copper pipes. Therefore, the plumber must solder the joint between the new pipe and the existing pipe. Soldering is a process in which the joint is heated by a blowtorch, and a piece of soft metal, called solder, is melted into the joint to make a watertight connection.

The temperatures used in soldering are high enough to burn wood. Thus, soldering pipes inside walls requires great caution. With sufficient care, it is possible to solder inside a wall without starting a fire. For this reason, the local building code does not require the use of any special equipment when soldering inside walls. However, in the city where the plumber works, it is customary for plumbers to place a small asbestos blanket behind the pipe during soldering. The blanket shields any nearby wood from the heat, and reduces the risk of fire. The blankets are small, light, and easily inserted behind the pipes. The blankets cost approximately $10 each, and they are reusable. 

The plumber solders the homeowner’s pipe without using anything to shield the wall from heat. When the repair is finished, the plumber fails to notice that a piece of wood inside the wall has started to smolder as a result of the soldering operation. The homeowner, distracted by other tasks, does not go upstairs to inspect the repair. Approximately one hour later, the smoldering wood inside the wall bursts into flame and starts a fire, which damages the house.

The homeowner sues the plumber on a theory of negligence. At trial, the homeowner’s expert witness testifies that the use of an asbestos blanket is customary throughout the plumbing trade when soldering inside a wall. The expert also testifies that this custom reduces the risk of fire by 75 percent. Additionally, the expert states that aside from not using the blanket, the plumber did a competent job of repairing the pipe. 

The judge instructs the jurors that when assessing negligence, they may consider the plumber’s failure to use an asbestos blanket. The plumber objects to this instruction, arguing that the use of a blanket is not required by law, and would not have eliminated the risk of fire. The judge overrules the plumber’s objection, and the jury finds in favor of the homeowner.

Questions

1. Did the judge correctly instruct the jurors that in assessing negligence, they could consider the plumber’s failure to use an asbestos blanket? Explain.
2. If the plaintiff did not present any expert testimony, could the jury find the plumber to be negligent based on res ipsa loquitur? Explain.