GONZALEZ BY GONZALEZ v. Morflo Industries, Inc.

• Decision Date: 02 July 1996
• Docket Number: No. 94-CV-0111 (JG).,94-CV-0111 (JG).
• Citation: 931 F. Supp. 159
• Parties: Angel GONZALEZ, an infant under the age of fourteen years, by his mother and natural guardian, Maria GONZALEZ, and Maria Gonzalez, Individually, Plaintiffs, v. MORFLO INDUSTRIES, INC., Sabh Water Heater Group, and Robertshaw Controls, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

931 F. Supp. 159

Angel GONZALEZ, an infant under the age of fourteen years, by his mother and natural guardian, Maria GONZALEZ, and Maria Gonzalez, Individually, Plaintiffs, v. MORFLO INDUSTRIES, INC., Sabh Water Heater Group, and Robertshaw Controls, Inc., Defendants.

No. 94-CV-0111 (JG).

United States District Court, E.D. New York.

July 2, 1996.

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Edmund Rothschild, Queller & Fisher, New York City, for plaintiffs.

Matthew K. Flanagan, Bivona & Cohen, New York City, for defendants Morflo Industries, Inc. and Sabh Water Heater Group.

Gerald Neal Swartz, New York City, for defendant Robertshaw Controls Company, Inc.

MEMORANDUM AND ORDER

GLEESON, District Judge:

Angel Gonzalez and his mother, Maria Gonzalez, brought this action against Morflo Industries, Inc. ("Morflo"), Sabh Water Heater Group ("Sabh")¹ and Robertshaw Controls Company ("Robertshaw") seeking damages for injuries sustained when an infant was scalded by hot tap water in a bath tub. Plaintiffs claim that the injuries were caused by a defective water heater and temperature control device. Morflo and Sabh filed cross-claims against Robertshaw. All defendants now have moved for summary judgment on plaintiffs' claims. For the reasons stated herein, their motions are granted.

FACTS

In October 1992, the Gonzalez family lived in a rental unit in a house in Queens, New York. The water supplied to their apartment was heated by a Morflo water heater, which had a temperature control device on its exterior that was manufactured by Robertshaw and sold to Morflo. This water heater had been purchased by Maria Garcia, the owner of the Gonzalezes' apartment, and installed by a plumber hired by Garcia in 1992. The Morflo heater, which had been design-certified by the American Gas Association, was located in the basement of the apartment house, which was locked and inaccessible to tenants. As a result, none of the Gonzalezes had ever even seen the water heater.

There were extensive warnings on the heater itself and in the manual supplied to Garcia when she purchased the heater. The Robertshaw temperature control device on the heater included a white dial and bore the following statement in red letters: "CAUTION: Hotter water increases the risk of scald injury." The heater itself also bore a warning label affixed to its exterior reading "DANGER" and bearing a picture of hot water coming from a faucet and burning a hand beneath it. Additionally, it stated:

Water temperature over 120 degrees Fahrenheit can cause severe burns instantly or death from scalds. Children, disabled, and elderly are at highest risk of being scalded. See instruction manual before setting temperature at water heater. Feel water before bathing or showering. Temperature limiting valves are available, see manual.

In the manual that accompanied the Morflo heater, the following warning and information appeared:

DANGER! The thermostat is adjusted to its lowest temperature position when shipped from the factory. Adjusting the thermostat past the 120 degree Fahrenheit bar on the temperature dial will increase the risk of scald injury. The normal position is approximately 120 degrees Fahrenheit.

DANGER: WARNING. Hot water can produce first degree burns in 3 seconds at 140 degrees Fahrenheit (60 degrees Celsius), in 20 seconds at 130 degrees Fahrenheit (54 degrees Celsius), in 8 minutes at 120 degrees Fahrenheit (49 degrees Celsius).

At the time the water heater was installed, the temperature control device was set on "medium," which Garcia stated was 140 degrees Fahrenheit, and apparently remained on the medium setting until Angel Gonzalez was burned.

This occurred on October 1, 1992, when fifteen month-old Angel was being given a bath by his fifteen year-old brother, Daniel. Upon hearing the telephone ring, Daniel left Angel alone in the tub and went to answer the telephone. No one else was in the apartment with the two boys. The water was running when Daniel left the bathroom. Although the record does not reveal exactly what happened next, it is undisputed that Angel was scalded by hot water that came out of the tap when Daniel went to the telephone.

Angel and his mother, Maria Gonzalez, brought this suit against Morflo, Sabh and Robertshaw, alleging that Angel Gonzalez was burned as a result of design and manufacturing defects in Morflo's water heater and Robertshaw's temperature control device and inadequate warnings and instructions accompanying them. Plaintiffs claim that there were (1) manufacturing defects for which defendants are strictly liable and which constitute negligence and a breach of implied and express warranties; (2) design defects for which defendants are strictly liable and which constitute negligence and breach of implied and express warranties; and (3) inadequate warnings for which defendants are strictly liable and which constitute negligence.

DISCUSSION

A. Standard For Summary Judgment

Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is upon the moving party to demonstrate that no genuine issue of material fact exists. All ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223 (2d Cir.1994).

Where the moving party demonstrates that if the case went to trial there would be no competent evidence to support a judgment for its opponent, the moving party has met its burden. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Apex v. Di-Mauro, 822 F.2d 246, 252 (2d Cir.1987), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987); Wright, Miller & Kane, 10A Federal Practice and Procedure § 2727 (1983).

To survive the summary judgment motion, the non-moving party must make a showing sufficient to establish the existence of the elements essential to that party's case. Mount Vernon Fire Ins. v. Creative Housing, 797 F.Supp. 176, 179 (E.D.N.Y.1992). When no rational juror could find in favor of the nonmoving party because the evidence to support its case is so slight or non-existent on a material element, there is no genuine issue of material fact and a grant of summary judgment is proper. Gallo, 22 F.3d at 1224.

B. The Design Defect Claims²

Defendants argue that they are entitled to summary judgment because there is no genuine issue of material fact as to whether the water heater and the temperature control device were defectively designed. Specifically, they argue that the water heater and the temperature control device were not unreasonably dangerous under theories of negligence or strict liability, and did not breach an implied warranty because they were fit for their ordinary purpose. Plaintiffs argue that the water heater and temperature control device were designed to allow the heater to raise the temperature of water to a dangerously high level, the utility of which did not justify its risk of injury. Plaintiffs further claim that the temperature control device was defectively designed because it was not labeled clearly enough to indicate the temperature of the water. Finally, plaintiffs argue that the question whether the water heater and the temperature control were unreasonably dangerous must be submitted to a jury.

1. Tort Versus Contract Action For Design Defect

Recently, the New York Court of Appeals addressed the differences between the tort and contract causes of action that arise out of a defectively designed product. Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995). The tort cause of action is brought as a strict liability or negligence claim, while the contract action is brought as a breach of warranty claim. The court held that while the tort and the contract claims are often invoked together, the core element of "defect" is "subtly different in the two causes of action." Id. at 256, 639 N.Y.S.2d at 254, 662 N.E.2d at 734.

Under the strict liability theory for a defectively designed product, a plaintiff makes out a prima facie case by showing that the manufacturer marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing the plaintiff's injury. Voss v. Black & Decker Manufacturing Company, 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983). A product is not reasonably safe if a reasonable person, who knew of the defect at the time the product was manufactured, would have concluded that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner. Voss, 59 N.Y.2d at 107, 463 N.Y.S.2d at 402, 450 N.E.2d at 208.³

The factors to be considered in determining whether a product is reasonably safe include: (1) the likelihood that the product will cause injury; (2) the product's utility to the public as a whole and to the individual user; (3) the technological and economic feasibility of a safer design; (4) the plaintiffs awareness of the danger and ability to have avoided injury by careful use of the product; and (5) the manufacturer's ability to spread the cost of any safety-related design changes. Fallon v. Clifford B. Hannay & Son, Inc., 153 A.D.2d 95, 550 N.Y.S.2d 135 (3d Dep't. 1989); see also Denny 87 N.Y.2d at 257, 639 N.Y.S.2d at 255, 662 N.E.2d at 735 (citing Voss v. Black & Decker Manufacturing Co., 59 N.Y.2d at 109, 463 N.Y.S.2d at 402, 450 N.E.2d at 208). This analysis "is rooted in the recognition that there are both risks and benefits associated with many products and that there...