On June 25, 2002, at the age of two, Tyrese Williams suffered second- and third-degree burns, caused by "excessively hot bath water." According to his mother, Yvonne Graham, Tyrese was allowed into the bathtub while the water was running and, after a minute, he was scalded on his feet, ankles and buttocks.
When police officers reported to the scene, the bathwater temperature measured 96 degrees after one minute, 124 degrees after two. But based on the injuries Tyrese sustained, a physician speculated that the water was likely much higher than 124 degrees. (Evidence subsequently uncovered by Graham's counsel revealed that the building's hot water mixing valve was actually set at 140 degrees and that the water at the valve occasionally ranged above that setting.)
In response to an investigation conducted by the Administration for Children's Services, which concluded that Ms. Graham had failed to properly supervise her child, Graham pled guilty to the crime of "assault in the second degree," and conceded that she "knew the water was hot in her building but let her son into the tub." Notwithstanding these admissions (and her conviction), Graham later filed a negligence suit against the building's landlord on her son's behalf.
On motion to the Bronx County Supreme Court, the landlord sought to have the case dismissed based on Graham's conviction. The owner further cited to the lack of any defect with respect to the building's hot water supply and the absence of any notice of an excessively hot water condition. When that motion was denied by the Supreme Court, the owner appealed to the Appellate Division, First Department, which concluded that the lower court was in error and that the action should have been dismissed.
Since the governing law sets a "minimum" temperature of 120 degrees, the Appellate Division did not find a hot-water setting at 140 degrees to be unsafe or otherwise violative of law. In fact, the court suggested that a higher setting had salutary effects. As the court noted in its decision:
Nothing in plaintiff's submissions permits a finding that a building's hot water mixing valve must be set at a maximum of 120 degrees, or that a maximum setting of 140 degrees is unsafe. A building's maximum hot water is not intended to be at a temperature appropriate for bathing. Indeed, as defendant's expert pointed out, keeping hot water in excess of 120 degrees ... aids in killing certain microorganisms when washing dishes or clothing.
Rather than address the perils presented to our young by allowing such excessively high water-temperative levels, the AD opted to counsel as follows:
People using hot water, especially when bathing infants and toddlers, must be expected to monitor the mixture of hot and cold water to ensure a temperature that is safe for bathing. A landlord cannot be required to adjust the hot water temperature in order to protect children from adults who fail to do so.
Experts report that young children have the highest rate of scald burn hospitalizations.* Yet, despite that compelling statistic, our appellate courts seem reluctant to espouse a standard which would ensure that such injuries are drastically reduced or eliminated.** Why do you think they're so cold to that idea?
For a copy of the Appellate Division's decision in Williams v. Jeffmar Mgt. Corp., please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_06053.htm
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* See, e.g., "Tap Water Scald Burns in Children," published in Pediatrics, the official journal of the American Academy of Pediatrics (AAP): http://pediatrics.aappublications.org/cgi/content/full/102/1/S1/256
**The AAP recommends that hot-water thermostats be set at 49 to 53°C (120 to 130°F). (See, e.g., http://pediatrics.aappublications.org/cgi/content/abstract/94/4/573-b?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&minscore=5000&resourcetype=HWCIT )