Nicoletti, Gonson, Spinner, LLP

Divided Court finds Landlord Not Liable for Fatal Scalding

The plaintiff’s decedent, then 58 year-old, due to severe mental infirmities, had the mental capacity of a two year old. On August 25, 2003, her home healthcare aide left her in the bathroom unattended while giving her a bath. The decedent accidentally turned on the hot water and suffered severe second and third degree burns, subsequently leading to her death. The plaintiff sued the building owner under the theory that it negligently permitted the building’s water temperature to reach a dangerous temperature. Plaintiff’s expert noted that the bathtub hot water temperature reached 161 degrees which was unsafe and should not have exceeded 120 degrees. The defense argued that it had a statutory duty to provide water that reached a minimum temperature of 120 degrees but no duty to ensure that the water did not surpass any set maximum temperature. In fact, a minimum temperature of 120 degrees was required for bathing, dishwashing and laundry. The lower court denied the owner’s motion for summary judgment. However, the Appellate Division, 2nd Department, in a 3-2 decision, reversed the lower court, stating that there was a lack of statutory authority setting forth any maximum allowable temperature. The majority wrote that people using hot water, especially when bathing infants and toddlers, must be expected to monitor the mixture of the hot and cold water to ensure a temperature safe for bathing.

Savory v. 2120 Realty Co. LLC