| Simmons v Sacchetti |
| 2009 NY Slip Op 06295 [65 AD3d 495] |
| August 25, 2009 |
| Appellate Division, First Department |
| Sapphire Simmons, an Infant, by Her Mother and NaturalGuardian, Rosemary Simmons, et al., Respondents, v Vito Sacchetti et al., Appellants,and Ambassador Fuel and Oil Burner Corp. et al., Appellants-Respondents, et al.,Defendant. |
—[*1] Arnold E. DiJoseph, New York, for Simmons respondents. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for AmbassadorFuel and Oil Burner Corp., respondent. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel),for F&B Fuel Oil Co., Inc., respondent.
Orders, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered October 20 and 21,2008, which, in an action for personal injury to an infant, denied respective motions bydefendants building owner and management company, and by defendant boiler servicecontractor, for summary judgment dismissing the complaint and all cross claims against them,reversed, on the law, without costs, the motions granted, and the complaint and all cross claimsagainst those defendants dismissed. The Clerk is directed to enter judgment accordingly.
This action arises from an accident on December 15, 2005 at 2513 Tratman Avenue in theBronx, where plaintiff Sapphire Simmons, then 17 months old, was injured when she fell into abathtub containing scalding hot water. The building complex was owned by defendant VitoSacchetti, and managed by his son Michael, an employee of defendant TMS ManagementCompany.
Defendant Ambassador Fuel and Oil Burner Corp. had an oral contract with Sacchetti.Sacchetti claims that Ambassador's obligations included maintaining and repairing the building'shot water system, while Ambassador asserts its only responsibilities were to supply fuel oil andconduct annual inspections of the boiler sufficient to satisfy New York City BuildingDepartment [*2]requirements. The complaint alleged thatSapphire's injuries were caused by defendants' negligence in failing to properly maintain thewater system in the building.
At her deposition, Rosemary Simmons, Sapphire's mother, testified that she was in bed withSapphire, watching televison, when she heard the steam coming up in the apartment. She told her13-year-old son, Giovanni, that it was time for him to take a bath. Giovanni came into the roomto get his underwear and left. A few seconds after he left, Sapphire got off the bed and left theroom. Rosemary was still watching television. A few minutes later, she heard Sapphire scream.By the time she got to the bathroom, Giovanni was holding Sapphire. Sapphire's legs and thefront of her body were wet, and there was steam coming from her clothing. Rosemary yanked offSapphire's clothes and saw that skin was coming off as well. She told her 18-year-old son,Anthony, to call 911.
Giovanni testified that Sapphire went to follow him, but he told her that he had to a take ashower, and he asked Anthony to watch her. Giovanni went to the bathroom and turned on thehot water only. He realized he had forgotten his shirt so he went back to his bedroom, but did notclose the bathroom door and left the water running. At that time, Sapphire was in anotherbedroom with Anthony. Two minutes later, he heard Sapphire crying. His mother asked him tocheck on her, so he went into Anthony's room. When he did not see her, he knew she was in thebathroom. He heard the water still running in the tub. A minute later, he saw Sapphire in the tubwith her body close to the faucet and he picked her up. Approximately five minutes had elapsedfrom the time he turned on the water until the time he saw Sapphire in the tub.
Wanda Baez, plaintiffs' neighbor and a tenant of the building, testified that her child hadbeen burned by the hot water in the building in 1998. Another tenant, Arleen Delgado, testifiedthat she had complained to building management about the water temperature in 2003, and thather daughter had been burned when she was taking a bath. Griselle Gonzalvo, also a tenant,testified that before the accident she had complained many times about the water temperature.
The Sacchetti defendants and Ambassador moved separately for summary judgmentdismissing the complaint. The court denied both motions, finding issues of fact as to themalfunctioning of the water system and as to Ambassador's responsibilities with regard to thesystem.
It is undisputed that this accident occurred when the unattended, 17-month-old child wasscalded after getting or falling into a bathtub after her brother had turned on hot water only, andwhile her mother was in another room. As this Court has previously stated, "A landlord cannotbe required to adjust the hot water temperature in order to protect children from adults who failto do so" (Williams v Jeffmar Mgt.Corp., 31 AD3d 344, 347 [2006], lv denied 7 NY3d 718 [2006]). "People usinghot water . . . must be expected to monitor the mixture of hot and cold water toensure a temperature that is safe for bathing" (id.).
The dissent's attempt to distinguish Williams by stating that this is not a case of anegligent mother leaving an infant alone in a tub is perplexing. The mother in this caseconcededly left her infant unsupervised, and, as a result, the child was injured when she enteredor fell into a bathtub the mother knew was being used. The older brother's act of leaving thebathroom did not negate the mother's negligence, or transpose liability to the landlord.
Even if the dissent's characterization of the mother's conduct were accurate, the result [*3]would be the same. There is no prescribed maximum temperatureunder the Administrative Code of the City of New York for the water that is supplied to anindividual apartment (id. at 346). For that reason, we decline to follow the analysis of thedissent, even if New York City Building Code Reference Standard RS 16 § P107.26 (b)(Administrative Code, tit 27, ch 1, Appendix) is applicable.
Consequently, we cannot find that there was any negligence on the part of either the buildingdefendants or the fuel company that could be construed as the proximate cause of the infant'sinjuries. Concur—Friedman, J.P., Sweeny, Nardelli and Richter, JJ.
Acosta, J., dissents in a memorandum as follows: I disagree with the majority and wouldvote to affirm inasmuch as there are issues of fact preventing summary dismissal of thecomplaint. With respect to the building defendants, there are issues of fact as to whether theyviolated their duty to ensure that the water temperature was at a level where it would not causeburns (see e.g. Rosencrans vKiselak, 52 AD3d 492 [2008]; Carlos v 395 E. 151st St., LLC, 41 AD3d 193, 195-196 [2007]; Lindsey v H.B. Assoc., L.L.C., 24AD3d 274 [2005]; Greene vSimmons, 13 AD3d 266 [2004]; Parker v New York City Hous. Auth., 203AD2d 345 [1994]). That duty is part of the responsibility of an owner of residential property tomaintain the premises in a reasonably safe condition (Rosencrans, 52 AD3d at 492).Such issues are raised by evidence that, inter alia, 20 days after the accident, the watertemperature in the apartment was measured at between 151 and 186 degrees; water temperatureof 150 degrees will instantly scald an infant's skin; the building's hot water system did not have atemperature relief valve, in violation of New York City Building Code Reference Standard RS16 § P107.26 (b) (Administrative Code, tit 27, ch 1, Appendix), which would haveprevented excessively hot water from flowing to the infant's apartment; the boiler contractor hadpreviously issued a violation notice to the building defendants based on the absence of atemperature relief valve in a boiler that serviced other buildings in the complex, indicating thatthe building defendants were on notice that such a valve was required; and other tenants hadcomplained to building management about excessively hot water.
Issues of fact also exist as to whether the boiler contractor launched a force or instrument forharm, rendering it liable in tort to third persons (see Espinal v Melville Snow Contrs., 98NY2d 136, 140 [2002]). Such issues are raised by evidence that, inter alia, the buildingdefendants relied on the contractor to inspect the hot water system as well as the boiler system,and to report any problems (see Gottlieb v 31 Gramercy Park S. Owners Corp., 276AD2d 417 [2000] [issues of fact exist as to extent of defendant's obligation to inspect and/orrepair boiler and "accessories"]), and the contractor's issuance of a violation for lack of atemperature relief valve on another boiler in the complex, tending to show that a check for thisvalve was part of its inspection process, and that reasonable care in the performance of its annualinspections would have resulted in its discovery of the missing valve and issuance of a citation.
Summary judgment is also inappropriate based on uncontested evidence that the infant wasinjured after her older brother, intending to take a bath, had turned on only the hot water and[*4]briefly left the bathroom. Whether the brother's act of turningon only the hot water was a superseding cause is a question of fact for the jury (Parker,203 AD2d at 346; see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315[1980]).
Finally, Williams v Jeffmar Mgt.Corp. (31 AD3d 344, 347 [2006], lv denied 7 NY3d 718 [2006]), relied on bythe majority for its proposition that a "landlord cannot be required to adjust the hot watertemperature in order to protect children from adults who fail to do so," is inapposite to the factsof this case. Unlike Williams, where the mother, who left the infant child unattended inthe tub, pleaded guilty to assault in the second degree, Administration for Children's Servicesfound the abuse and neglect allegations against the mother in the instant case to be unfounded.This is not a case of a negligent mother leaving an infant alone in a tub. Rather, this was anaccident where the older brother left the bathroom momentarily. Moreover, Williams isdistinguishable because in that case "[n]othing in plaintiff's submissions permit[ted] a finding. . . that a maximum setting of 140 degrees [wa]s unsafe" (31 AD3d at 346-347).Here, however, plaintiffs' expert found soon after the incident that the water emanating from thehot water tap was in excess of 150 degrees (and as high as 186 degrees), and stated that watertemperature of 150 degrees will instantly scald an infant's skin. And, as noted above, the buildingdefendants in the present case knew that the hot water problem could result in injury since theyhad received numerous complaints from tenants as well as the aforementioned violation issuedby their own contractor. Accordingly, I would affirm.