Burn cases can be difficult to defend. In a catastrophic case, the ensuing disfiguring injuries pull at the hearstrings of the jurors, sometimes making it impossible for them to objectively evaluate the liability issues. In New York City, building owners sometimes feel that they are between a rock and a hard place: tenants complain if their water is not hot enough yet the owner gets sued if someone is burned for excessively hot water.
The Appellate Division recently ruled that an owner has no duty to ensure that a building’s hot water does not exceed a certain temperature. In Savory, the decedent, a mentally disabled adult, was left unattended in the bathtub by her health care attendant. The decedent turned on the hot water and was badly scalded. Plaintiff’s expert engineer estimated that the water was 161 degrees as it exited the tub’s faucet and 168 degrees as it exited the main boiler.
A New York City Adminstrative Code provision required landlords to provide water with a minimum temperature of 120 degrees “from the central source of supply.” Plaintiff argued that water in the range of 160 degreees was excessively hot and that an owner should not send water with a temperature in excess of 120 degrees to a kitchen or bathroom fixture. Not surprisingly, the defense countered that the controlling code provision only sets a minimum standard and imposes no duty on the owner to limit the maximum temperature of the hot water supply.
In a close 3-2 decision, the Appellate Division sided with the defense and dismissed the action. Since there were 2 dissenting judges, the case can be appealed to New York’s highest court as of right.