HomeMy WebLinkAbout98-1153 CIVILJAMES L. FRALISH and JEAN L.
FRALISH, as Administrators of
the ESTATE OF HEATHER L.
JOHNSON and on behalf of the
INTESTATE HEIRS OF HEATHER
L. JOHNSON,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 98-1153
A.O. SMITH CORPORATION, PAUL :CIVIL ACTION-LAW
R. LAY and DORIS F. LAY,
Defendants,
LEA ANNE FRALISH,
Additional Defendant
:JURY TRIAL DEMANDED
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before HOFFER, P.J. and OLER, J.
OPINION
On March 11, 1996, nineteen-month old Heather Johnson was scalded to
death by hot water in the bathtub of an apartment where she lived with her
mother, Lea Anne Fralish. Defendants Lay own the apartment building.
Defendant A.O. Smith Corporation manufactured the water heater serving the
apartment complex. The Fralish plaintiffs are the grandparents of Heather
Johnson.
Plaintiffs contend that at some point during the morning of March 11,
1996, Lea Fralish fell asleep on a couch in the apartment. Heather Johnson
was awake at the time. While Ms. Fralish was sleeping, Plaintiffs contend that
this nineteen-month old baby ventured into the bathroom, turned on the hot
water faucet of the bathtub, and, in the process, fell into the tub. Upon hearing
her daughter scream, Ms. Fralish entered the bathroom to find that her daughter
had suffered serious burns from the hot water in the tub, resulting in her death.
Both defendants have filed motions for summary judgment. The motions
for summary judgment have been consolidated into this opinion. The standard
for summary judgment is well settled. Pennsylvania Rules of Civil Procedure
1035.2 provides:
After the relevant pleadings are closed, but within such time as
not to unreasonable delay trial, any party may move for summary
judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defenses which
could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion,
including the production of expert reports, the adverse party who
will bear the burden of proof at trial has failed to produce evidence
of facts essential to the cause of action or defense which in a jury
trial would require the issues to be submitted to a jury.
Pa.R.Civ. P. 1035.2.
Summary judgment may be granted when "the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issues as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Flanaqan v. Labe, 446 Pa.
Super. 107, 110, 666 A.2d 333, 335 (1995).
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SUMMARY JUDGMENT MOTION OF DEFENDANTS PAUL AND DORIS LAY
Plaintiffs contend that there was a defective condition upon the premises
owned by Paul and Doris Lay involving the hot water heater manufactured by
A.O. Smith. Specifically, plaintiffs contend that the Lays had constructive
notice that the water temperature setting on the hot water heater temperature
dial was unsafe for normal human use. Plaintiffs contend that as a result of the
Lays' failure to set the hot water heater at a lower setting, Heather Johnson
suffered severe and extensive burns, resulting in her death. Plaintiffs contend
that the Lays were negligent in permitting the hot water heater to be set at a
temperature which was allegedly unsafe for the normal and regular use. As
such, the plaintiffs contend that there was a defective condition upon the
premises of which the Lays should have known, and failed to take corrective
measures or provide appropriate warnings thereof. The defendants contend
that they had no actual or constructive notice of an alleged defective condition
with the hot water heater.
No two reasonable minds can differ that the Lays had no actual or
constructive notice of any alleged defective condition upon the premises
involving the hot water heater. Pennsylvania law provides that
where the landlord retains control of a part of a leased premises,
which is necessary to the safe use of the leased portion, he is liable
to the lessee and others lawfully on the premises for the physical
harm caused by a dangerous condition existing upon that part over
which he retains control, if by the exercise of reasonable care he
could have discovered the condition and the risk involved, and
made the condition safe.
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Smith v. M.P.W. Realty Company, Inc., 423 Pa. 536, 225 A.2d 227, 229 (1976).
Stated differently, "an owner of a building is not liable for injuries to a servant, or
to persons lawfully upon his premises, by reason of latent defects of which he
was ignorant, and which would not have been discovered by the exercise of
reasonable care and diligence." Mathis v. Lukens Steel Co., 415 Pa. 262, 203
A.2d 482,487 (1964).
Based upon the foregoing legal principles, the issue before the Court is
whether, if by the exercise of reasonable care, the defendants Lay could have
discovered the condition upon the premises involving the hot water heater.
Instantly, there is no doubt that the Lays had no actual knowledge of the alleged
defective condition on the premises.
The Superior Court of Pennsylvania in Felton v. Spratley, 433 Pa. Super.
474, 640 A.2d 1358 (1994), specifically addressed the question of what
"reasonable care" must be exercised by a landlord out of possession to discover
an alleged defective condition on the premises to provide himself with a
corresponding opportunity to remedy the defective condition. As in the case at
bar, deciding this issue turned on whether the landlord had constructive notice
of the defective condition. Id~ at 480, 640 A.2d at 1361.
The Superior Court described constructive notice as follows:
A person is charged with having constructive notice
when he has knowledge of facts putting him upon inquiry.
Once the duty to inquire is raised, the party is deemed to
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have such knowledge as he would have acquired by the
exercise of ordinary intelligence and understanding.
A party is not charged with a duty to make an inquiry
unless the allegedly-provoking information has come from a
source entitled to respect. A person is not put on notice by
general rumor, the loose conversation of bystanders, or
published notices or the distribution of hand bills, at least
unless it established that the parties saw the material.
.The knowledge or notice of defect or danger which is
necessary in order to impose liability for negligence need not
be actual, but before knowledge of a dangerous condition in
an instrumentality can be visited constructively the situation
must not only have existed for a sufficient length of time to
enable it to be duly discovered, but it must also be capable of
ascertainment upon the inspection, observation, or
supervision legally required of the one sought to be bound
with such knowledge. (emphasis in the original)(citation
omitted)
Id~ at 483, 640 A.2d at 1362-63.
In addition, the Court in Felton noted that, "to hold the [defendant-
landlord] accountable necessitates a finding that 'inquiry' on the part of the
landlord rose to the level of a 'duty', and would lead to the knowledge of a
requisite fact by the exercise of ordinary diligence and understanding." (citation
omitted) Id. at 484, 640 A.2d at 1363. The Court asserted that, "the liability of a
landlord to a tenant premised on a negligence theory must be established by
proof of some direct omission by the lessor of the performance of a duty which
he/she owed to the lessee in order to make a landlord liable." (emphasis added
in the original)(citations omitted) Id~ at 484, 640 A.2d at 1363.
In the instant case, in deciding the issue of constructive notice, plaintiffs
have produced no evidence and can point to no authoritative source which
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holds that the defendants Lay had a legally imposed duty to inspect the hot
water heater to determine whether the temperature setting on it was safe for
human use. They did not have prior knowledge of the condition, thus putting
them upon inquiry and triggering a duty to the plaintiffs. Without that duty, the
defendants Lay cannot be negligent.
Instead, plaintiffs contend that the danger of having the hot water heater
set at a temperature of 150 degrees Fahrenheit was generally known to the
public at large as too hot of a setting for personal use and the Lays should have
known this. As such, plaintiffs contend that, based upon this general public
knowledge, the Lays are charged with constructive notice, thereby creating an
affirmative duty on their part to check the water heater on the premises in
question to make sure it was set at a lower temperature than 150 degrees
Fahrenheit. But plaintiffs have presented no evidence as to a supposed general
understanding in the public at large that a temperature setting of 150 degrees
Fahrenheit is unsafe for personal use. Additionally, there was no indication on
the temperature dial of the hot water heater that any of the available
temperature settings on the dial were unsafe for personal use. Specifically,
there was no indication that it should not be set at 150 degrees Fahrenheit for
personal use. The water temperature dial on the water heater contained
temperature settings of 120, 140, 160, and 180 degrees Fahrenheit. According
to the A.O. Smith operation manual the four settings are as follows:
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120 - warm
140- normal
160- hot
180- dishwasher rinse only.
Thus, the midrange of the settings would have been 150 degrees Fahrenheit.
As such, the temperature setting was between normal and hot. The water
heater had no indication that the 150-degree temperature would be too hot for
personal use. As such, without any underlying reason triggering notice to the
landlords of defects on their premises, the defendants cannot be held liable.
There is no evidence that the defendants were placed on notice throughout the
entire 16 year period of owning the apartment complex.
Simply put, the plaintiffs cannot point to any underlying reason which
establishes that the Lays had constructive notice of an alleged defective
condition on the premises which would then, in turn, have raised an affirmative
duty to correct the action. Thus, since there is no actual notice and there are no
facts which support constructive notice on part of the defendants, plaintiffs are
unable to meet their burden of proof on negligence. Therefore, this cause of
action against the Lays is dismissed.
SUMMARY JUDGMENT MOTION OF DEFENDANT A.O. SMITH
CORPORATION
Next we consider A.O. Smith's summary judgment motion. In the
Complaint, plaintiffs assert that A.O. Smith is strictly liable through the doctrine
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of strict liability for manufacturing a defective and unreasonably dangerous
product and that it was negligent in the following respects:
73.
Defendant, A.O. Smith Corp., breached its duty to intended
and foreseeable users, including plaintiffs' decedent, in one
or more of the following ways:
By designing and manufacturing the subject hot water
heater so that it was capable of producing hot water
that is so hot as to create an unreasonable risk of
injury and/or death to foreseeable users, including
plaintiffs' decedent;
By negligently failing to design and manufacture the
subject hot water heater with safeguards, or
reasonable and adequate safeguards, to prevent
intended and foreseeable users from adjusting the
thermostats on the water heater as to produce hot
water at a temperature that creates an unreasonable
risk of injury or death to foreseeable users, including
plaintiffs' decedent.
By negligently failing to warn, or reasonably and
adequately warn, foreseeable users of the danger of
injury and/or death that would result from adjusting the
thermostats so as to produce water at temperatures
that create an unreasonable risk of injury and/or death
to foreseeable users, including plaintiffs' decedent;
and/or
By negligently failing to include reasonable and
adequate user instructions and/or user training
materials, as part of the product.
This products liability case based upon a defective design can be
disposed of by determining whether the product is "unreasonably dangerous"
and thus should have been designed more safely. In regards to "unreasonably
dangerous", Pennsylvania has adopted the Restatement (Second) of Torts,
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Section 402(a). Monahan v. Toro Co., 856 F. Supp. 955, 958 (E.D. Pa. 1994)
(citing Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966)). This section provides,
"One who sells any product in a defective condition unreasonably dangerous to
the user or consumer.., is subject to liability for physical harm thereby caused
to the ultimate user or consumer .... "Id. (quoting Gri.q.qs v. BIC Corp., 981
F.2d 1429, 1431 n.3 (3d Cir. 1992)). In a Section 402(a) type case, the plaintiff
must prove: (1) the product was unreasonably dangerous and (2) the defect
caused the plaintiff's injuries. Walton v. AVCO Corp., 530 Pa. 52,575 A.2d 100
(1990).
Whether a product is "unreasonably dangerous" is generally a question
for the Court to decide. Monahan, 856 F. Supp. at 958 (citing Azzarello v. Black
Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020, 1026 (1978)). Our courts employ
the risk/utility analysis to answer such a question. Id~ at 958 (citing Jordan by
Jordan v. K-Mart Corp., 417 Pa. Super. 186, 611 A.2d 1328, 1330 (1992)).
Courts have identified several factors to consider when performing the risk/utility
analysis. The factors are as follows:
(1) The usefulness and desirability of the product--its utility to the
user and to the public as a whole.
(2) The safety aspects of the produce--the likelihood that it will
cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the
same need and not be as unsafe.
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(4)
The manufacturer's ability to eliminate the unsafe character of
the product without impairing its usefulness or making it too
expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care in the
use of the product
(6)
The user's anticipated awareness of the dangers inherent in
the product and their avoidability, because of general public
knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions.
(7)
The feasibility, on the part of the manufacturer, or spreading
the loss of setting the price of the product or carrying liability
insurance.
Id. at 958 (citing Shetterly v. Crown Controls Corp., 719 F. Supp. 385, 400
(W.D. Pa. 1989), afl'd, 898 F.2d 142 (3d Cir. 1990)).
In a motion for summary judgment,
the record must be viewed in the light most favorable to the
nonmoving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party .... Summary judgment may be entered only in
those cases where the right is clear and free from doubt.
Albright v. Fa.qan, 448 Pa. Super. 395, 398-399, 671 A.2d 760, 761-762
(1996) (quoting Duciai v. Dennis, 540 Pa. 103, 113, 656 A.2d 102, 107
(1995)).
A review of the record shows that the water heater was not unreasonably
dangerous. This finding has been determined by an application of the
aforementioned risk/utility analysis.
1. The usefulness and desirability of the product.
Without question, a water heater is an extremely useful and desirable
product. Plaintiffs concede this point that water heaters are useful and
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desirable consumer products. Water heaters heat water for various household
applications, including personal hygiene, dishes, laundry, and cooking.
2. The safety aspects of the product-the likelihood that it will cause
injury, and the probable seriousness of the injury.
Plaintiffs contend that the seriousness of injury from being exposed to tap
water heated to 150 degrees Fahrenheit is among the most dangerous that a
consumer product can produce. However, this water heater was used for
approximately 16 years prior to the incident and no complaints were ever
registered regarding any alleged defective condition or malfunction. It is
undisputed that in the 16 years that the Lays owned the apartments, numerous
tenants resided in the apartment complex and no complaints were ever
received that the water was too hot.
The water heater was not designed for unfettered use by an
unsupervised nineteen-months-old child. In fact, the misuse of the product
contributed to the injury claimed in this action.
minimal with proper use and reasonable care.
The likelihood of a scald injury is
Plaintiffs had adequate warning
of the potential for a scald injury, notwithstanding the fact that the injury here
resulted from misuse of hot water, which is an open and obvious danger for
anyone, adult or child.
Further, the fact that some injuries have occurred with the use of a
product does not in and of itself make that product unreasonably dangerous.
Shetterly, 719 F. Supp. at 400. Many products are in fact inherently dangerous,
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but regularly used regardless. For example, common household products such
as irons, stoves, curling irons, electric heaters all present inherent dangers.
Manufacturers are not expected to make these products safe for any and all
users.
3. The availability of a substitute product which would meet the same
need and not be as unsafe.
The necessity of a residential hot water heater cannot be disputed, as
there is no substitute for a hot water heater. Although there are different
manufacturers, the product, hot water, is without substitute.
4. The manufacturer's ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too expensive to
maintain its utility.
While the manufacturer is capable of producing a water heater that
produces hot water no hotter than the one in question, not all consumers would
be satisfied with such a limitation. There is no evidence that a different design
and/or temperature setting would have created a safer design as well as have
prevented this death.
The manufacturer is not charged with producing a water
heater tailored to the specific needs of a single consumer. A.O.
Smith manufactures water heaters to meet the needs of the general
population. The injuries prevented [by manufacturing a hot water
heater with a lower temperature] would not outweigh the loss in
utility to the average consumer.
Raspatello v. Aosco, Inc., A.O. Smith Corp., et al., No. 93 CP 958 (1996).
(Blair County, PA).
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Plaintiffs contend that A.O. Smith should have provided the appropriate
warnings regarding the risk of scald injury. However, the risk of injury was open
and obvious and the placement of a warning would not have eliminated the risk
of injury.
5. The user's ability to avoid danger by the exercise of care in the use of
the product.
In order to avoid the danger of being scalded by hot water, the most
obvious method for the ordinary user of hot water is to mix hot water with cold
water to obtain a comfortable temperature. Lea Fralish was aware of the
possible concerns regarding hot water and took certain precautions to temper
water when cooking or bathing. As such, no warnings would have been
necessary. In addition, neither plaintiff complained about the temperature of the
water prior to this incident. The water temperature had not been at issue, nor
had it ever been a problem, prior to this incident. In fact, it is undisputed that
the water heater in question performed safely for 16 years without causing the
injuries of the kind incurred by Heather Johnson.
6. The user's anticipated awareness of the dangers inherent in the product
and their avoidability, because of general public knowledge of the obvious
condition of the product, or of the existence of suitable warnings or
instructions.
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The general public typically uses hot water every day. While it may not
be common knowledge that the specific degree of burns experienced by
Heather can be caused from hot tap water, we do find the general public is
aware that tap water can scald and burn, as Lea Fralish testified to her
awareness of the dangers of hot water.
7. The feasibility, on the part of the manufacturer, or spreading the loss of
setting the price of the product or carrying liability insurance.
Based on this risk/utility analysis and the evidence presented, the Court
finds that this water heater is not unreasonably dangerous. In Gri.cl.cls, the Court
determined that the question of whether a product is unreasonably dangerous is
a judicial determination that as a matter of public policy the risk of loss should
be placed on the supplier of the product. Gri.cl.cls, 918 F.3d at 1431. A finding
that social policy does not support placing the risk of loss on the manufacturer
in a strict product liability case is the equivalent of a determination that the
product is not defective. Id. By determining a product is not unreasonably
dangerous and therefore not defective, as a result the manufacturer and its
customers should not have to bear the economic loss resulting from injuries
from such a product and for which the risk of harm is obvious and can be
effectively eliminated through the exercise of caution by the consumer.
Because the Court has determined that the hot water heater was not in
fact unreasonably dangerous and therefore not defective, A.O. Smith is not
negligent in respect to the design of the product or in its failure to warn the
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plaintiffs. A.O. Smith's request to this Court for a dismissal of Plaintiffs' claim is
granted. Absent any proof that the water heater malfunctioned or contained a
design defect, this case must be dismissed as a matter of law.
Because we have granted A.O. Smith's motion for summary judgment,
we need not address the issue of punitive damages.
CONCLUSION
For the reasons stated above, motions for summary judgment for
defendants Lay and defendants A.O. Smith are granted.
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