Williams v. Briggs Co.

• Decision Date: 21 August 1995
• Docket Number: O-D,No. 94-60539,94-60539
• Citation: 62 F.3d 703
• Parties: Prod.Liab.Rep. (CCH) P 14,319 Melody WILLIAMS, Individually and as Next Friend of Sherman Marion Williams, et al., Plaintiffs-Appellants, v. BRIGGS COMPANY, et al., Defendants, Standard Enterprises and Therm-isc, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 703

62 F.3d 703

Prod.Liab.Rep. (CCH) P 14,319

Melody WILLIAMS, Individually and as Next Friend of Sherman

Marion Williams, et al., Plaintiffs-Appellants, v. BRIGGS COMPANY, et al., Defendants, Standard Enterprises and Therm-O-Disc, Inc., Defendants-Appellees.

No. 94-60539.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1995.

T. Jackson Lyons, Jane Sanders Lewis, Legal Resources, Jackson, MS, John Arthur Eaves, Jackson, MS, for appellants.

R.E. Parker, Jr., Varner, Parker, Sessums & Akin, Vicksburg, MS, for Standard.

Francis H. Brown, III, James F. Shuey, Lemle & Kelleher, New Orleans, LA, for Therm-O-Disc.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, DUHE and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Melody Williams, et al., appeal from a judgment as a matter of law. We AFFIRM.

I.

On May 23, 1991, Summer Jewel Williams, Melody Williams' 11-month old daughter, was severely burned by water in a bathtub in Melody Williams' apartment in Vicksburg, Mississippi. While Melody Williams was in the kitchen, her three-year-old son began to fill the bathtub with hot water. Melody Williams heard the running water, and told her son to turn it off. Immediately thereafter, and before her son did so, Melody Williams heard a splash, followed by screams from her daughter. Melody Williams found her daughter in the bathtub in at least several inches of hot water. Summer Jewel Williams' treating physician estimated that she had sustained partial thickness (second degree) burns on 43% of her body. She died several days later from an infection resulting from the burns.

Suit was filed against, among others, Therm-O-Disc, Inc., the manufacturer of the thermostat on the water heater, and Standard Enterprises, the manager of the apartment building; trial was held against only those two defendants. On their motion for judgment as a matter of law at the close of Williams' case, the district court found that Williams had failed to offer sufficient proof on any of her theories of recovery, including strict product liability and negligence, and therefore granted the motion.

II.

In this diversity action, we must, of course, apply Mississippi law. Subsumed within the challenge to the judgment as a matter of law are whether the thermostat manufactured by Therm-O-Disc was defectively designed, evidentiary rulings by the district court, and the proper rule of decision under Mississippi law for a landlord's liability for a defect on its premises. Needless to say, we freely review a judgment as a matter of law, and must view the evidence in the light most favorable to the nonmoving party. E.g., Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969).

A.

For strict product liability, Mississippi requires the plaintiff, inter alia, to demonstrate that the product was "in a defective condition unreasonably dangerous to the user or consumer". Sperry-New Holland v. Prestage, 617 So.2d 248, 253 (Miss.1993) (emphasis in original) (quoting Restatement (Second) of Torts Sec. 402A). And, for determining whether a product is unreasonably dangerous, Mississippi has made it clear recently that it applies a risk-utility analysis. Id. Under that analysis, "a product is 'unreasonably dangerous' if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product." Id. at 254. Mississippi law further advises:

In balancing a product's utility against the risk of injury it creates, a trial court may find it helpful to refer to the seven factors enumerated in Professor John Wade's article, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825. The factors are:

(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 product--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.

(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, of spreading the loss by setting the price of the product or carrying liability insurance.

Id. at 837-838.

Id. at 256 n. 3.

The only strict product liability claim urged here is that the water heater thermostat, manufactured in 1973, was defectively designed, in that its upper setting, 170 degrees, is too high for residential use. Against the above risk-utility backdrop, Williams states that a corollary to her claim "is whether there is any utility whatever to a design which would allow a water heater to heat residential hot water to 170" degrees. Leonard Mandell, Williams' expert in the fields of mechanical engineering, thermodynamics, and heat transfer, testified that he knew of no household use for 170 degree water; in his opinion, a thermostat capable of that setting is unreasonably dangerous. ¹

The district court's duty, as well as ours, is not to determine whether there is any evidence supporting Williams' claim, but whether there is sufficient evidence to support a verdict in her favor. See Fed.R.Civ.P. 50(a)(1); Boeing Co., 411 F.2d at 374-75. Williams asserts that Mandell's testimony was sufficient to warrant submission of the case to the jury. As discussed below, we agree with the district court that it was not.

To begin with, any discussion regarding the utility of 170 degree water is largely irrelevant in this case. According to Mandell's highest estimation, the water in the bathtub at the time of the accident was 155 degrees, and was perhaps as low as 145 degrees. Other evidence suggests the water was less than 140 degrees. ² As such, the focus of the case narrows, and our question is not the utility, vel non, of 170 degree water, but of 140-155 degree water.

On this utility question, Mandell acknowledged that widely-accepted industry standards called for 140 degree water in residential dishwashers and washing machines. He also noted "a very excellent reference book" that requires temperatures as high as 160 degrees for certain household dishwashing needs. Another of Williams' exhibits notes that manufacturers of washing machines have recommended 165 degree water.

Another of Williams' experts, Dr. Richard Forbes, noted an additional benefit of Therm-O-Disc's thermostat: by permitting the water heater to produce water that is hotter than needed, that water can be combined with cold water at the faucet to produce more water of an appropriate temperature. Dr. Forbes suggested that this was an important function, given the limited capacity of most residential water heaters.

This common sense application may be one reason why industry safety standards in 1973 (when the thermostat was manufactured) permitted thermostats with settings of 170 degrees. Although not conclusive, Therm-O-Disc's compliance with industry standards certainly weighs in our analysis. See William Cooper & Nephews, Inc. v. Pevey, 317 So.2d 406, 409-10 (Miss.1975) (Reversing a jury verdict for plaintiff when, among other things, defendant's product was "within the range of United States Department of Agriculture regulations"). In this regard, however, Mandell was of the opinion that all water heater thermostats were defective.

Finally, Mandell and Dr. Forbes recognized that there is always temperature loss between the water heater and the faucet. Mandell testified that the heat loss in this case from the water heater to the bathtub would be "[i]n the order of five degrees". The implication is unmistakable: a higher thermostat setting is necessary to compensate for heat loss, among other things, between the water heater and the faucet. (Obviously, other factors, such as length of time of the water in the bathtub, have a bearing on heat loss. Although the thermostat was set for 170 degrees, Mandell estimated that the water temperature in the bathtub was no greater than 155 degrees, a drop of at least ten degrees more than the estimated five degree loss between the water heater and faucet.)

Against the considerable utility of Therm-O-Disc's thermostat, we must also examine the risk of injury associated with it. As noted by the Mississippi Supreme Court, "[i]n balancing the utility of the product against the risk it creates, an ordinary person's ability to avoid the danger by exercising care is also weighed." Prestage, 617 So.2d at 256. No reasonable jury could disagree that an "ordinary person" is capable of avoiding the danger presented by Therm-O-Disc's thermostat. Williams essentially agreed. She testified that she always turned the hot and cold water on together when filling the bathtub. Perhaps, as a result, she had never before complained that the water in her apartment was too hot.

This points up another means by which the consumer may protect herself: the thermostat was adjustable. Therm-O-Disc's design allowed for an adjustment of temperature as the consumer saw fit. In this connection, notwithstanding Mandell's testimony that an ordinary person has no conception of how hot water of a given temperature is, we think an ordinary person is fully aware of when water is too hot for his liking, and can protect himself accordingly.

Obviously, Williams' 11-month old daughter was incapable of exercising care for her own safety. But, it goes without saying that manufacturers cannot make an absolutely safe product, especially for 11-month old children. See Prestage, 617 So.2d at 256...