          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


                                         -2-
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




                                        -3-
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.

                                     -4-
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.

                                    -5-
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.

                                      -6-
            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.

                                      -7-
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




                                 -8-
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."

                                        -9-
          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."

                               -10-
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


                                    -11-
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


                                   -12-
          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

                                 -13-
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


                                  -14-
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

                                     -15-
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.

                                    -16-
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.

                                      -17-
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.

                                  -18-
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,

                                -19-
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.




                                 -20-
