Rietze v. Williams

• Citation: 458 S.W.2d 613
• Parties: George C. RIETZE, Appellant, v. Lisa WILLIAMS, Infant, by Leonard Williams, Next friend, Appellee.
• Decision Date: 01 May 1970
• Court: United States State Supreme Court — District of Kentucky

Page 613

458 S.W.2d 613

George C. RIETZE, Appellant, v. Lisa WILLIAMS, Infant, by Leonard Williams, Next friend Appellee.

Court of Appeals of Kentucky.

May 1, 1970.

As Modified on Denial of Rehearing Sept. 25, 1970.

Frank P. Doheny, Jr., Woodward, Hobson & Fulton, Louisville, for appellant.

Richard L. Drye, Raymond C. Stephenson, Louisville, for appellee.

PALMORE, Judge.

George C. Rietze appeals from a judgment entered on a jury verdict awarding Lisa Williams, an infant, $21,339.92 for personal injuries sustained by her while she was a visitor in rental property managed by Rietze under a contract with its owner, the Federal Housing Authority (hereinafter FHA).

FHA owned 310 houses in a project called Lincoln Park Subdivision. A couple named Stroudmire and their children were the tenants of one of these houses. During the week Mrs. Stroudmire kept Lisa Williams for Lisa's parents through the daytime while they were at work. On January 19, 1967, the date of the accident, Lisa was about 1 1/2 years old. Around noontime Mrs. Stroudmire put Lisa and her own small child of about the same age to bed in a room situated across a narrow hallway from a closet in which a 30-gallon automatic hot water heater was located. Mrs. Stroudmire then went into the kitchen and was ironing a work uniform for her sister, Mayme Gillespie, when suddenly she noticed a 'thomping and sizzling sound' and heard Lisa screaming. She found Lisa standing in the hallway at or near the door to the room in which the children had been put to bed. There was scalding water all over the floor, which appeared to be coming from the door of the closet containing the hot water heater. Mrs. Stroudmire immediately lifted the little girl up and summoned help. At about this time Mayme Gillespie arrived to pick up her uniform. She observed that the floor was wet and that the child's feet had been badly blistered. A police ambulance took Lisa to the hospital, where she remained until February 15, 1967.

The plaintiff's case is pitched on the theory that the water in the automatic heater became overheated and escaped through the relief or 'pop-off' valve at the top.

Both of Lisa's feet were burned, the right foot being affected the more seriously. The top instep of the right foot sustained a third degree burn and required a grafting operation in which an area of skin approximately 1 1/2 by 2 1/2 inches was transferred from her thigh. This portion of her right foot remains badly scarred and has what is described as a large keloid formation, a thick piling up of scar tissue. The plastic surgeon who treated her and performed the surgery testified that in his opinion the injuries will not limit her future employment opportunities and that he hopes she will not require any further medical treatment, but 'would advise that she not wear a shoe that would be tight over the graft or the scar, and one that would not rub or irritate it.' Dr. Allan Zoeller, an orthopedic surgeon who examined Lisa just before the trial, said that an ordinary shoe on the right foot will rub and irritate it and that as she grows the heavy scar tissue will cause her toes to be drawn into a deformed position, which probably will require release by further skin graft.

It is of importance to the appellant's contentions in the case to note that most of the damage was done to the tops of Lisa's feet, though it is obvious, as brought out in the medical testimony, that the soles of one's feet ordinarily are thicker, tougher, and less susceptible to injury by scalding than the topside portions. The significance sought to be ascribed to this circumstance is that although Mrs. Stroudmire testified that the water in which Lisa was standing was 'ankle deep,' it would not have been physically possible for it to flow out to such a level from the 1/4-inch clearance space between the floor and the bottom of the closet door without inundating the entire floor area of the house (which was proved to have been level). And if there was no way for water seeping or flowing from underneath the closet door to reach the tops of Lisa's foot or feet, it is possible to infer that the accident may have occurred in some other way--for instance, if Lisa opened the closet door and turned on the spigot at the bottom of the heater.

At this point it is convenient to discuss the first ground on which appellant claims he was entitled to a directed verdict, which is that the physical evidence conclusively refutes Lisa's theory of the case and destroys the probative value of Mrs. Stroudmire's testimony.

Lisa herself was too young to testify. The evidence of how the accident happened is circumstantial. We grant that it does not justify an inference that boiling water was standing or flowing on the hallway floor at a level deep enough to cover Lisa's insteps. That Mrs. Stroudmire's impression of its being 'ankle deep' must have been mistaken does not, however, undermine the plaintiff's case. The probability of what took place under given circumstances often may be deduced on the basis of common knowledge. We know that water will splash. We know that a sudden contact of bare feet on a scalding surface will produce instant gymnastics of a most violent order. It is impossible to think that a little barefooted child, with the tender feet of a child, would stand in or on boiling water with the equanimity of a Hindu fakir. Some amount of bodily reaction, attended by a sloshing of whatever water was around and under her feet, is bound to have occurred. If water had flowed out of the closet in sufficient quantity to cover the floor area on which Lisa was attempting to walk when she was injured (and we think the evidence certainly justifies the conclusion that it had), we cannot say it was physically impossible, or even improbable, for her to be injured as she was.

The house in which the Stroudmires lived was built on a concrete slab foundation with no basement. The hot water heater was furnished by the housing project and was installed on November 4, 1965, by a plumber named Carby at the direction of Rietze. Carby was not a licensed master plumber and, under the state plumbing code, was not legally authorized to do the work. He did not secure a permit and did not report the job for state inspection after it had been completed. The relief valve at the top of the heater was 5 1/2 to 6 feet above floor level and was turned toward the inside wall. It is admitted that there was no pipe or conduit to carry its discharge to a floor drain or to the outside of the house. Shortly after the accident it was observed by Rietze's maintenance foreman that the wall of the closet opposite the relief valve was wet. Rietze testified that 'we called Carby * * * to correct the fault,' and Carby's bill for the work, dated January 23, 1967, shows that he replaced the relief valve.

From what has been recited thus far it would seem beyond cavil that in the absence of evidence to the contrary (and there was none) it is permissible to infer that the hot water on the floor at the time Lisa was injured emanated from the relief valve.

As already mentioned, Rietze was not the landlord, but managed the rental project under a contract with FHA. Citing Whitehouse v. Lorch, Ky., 347 S.W.2d 512 (1961), a tree-falling case which stands for the common law principle that ordinarily, unless he has contracted otherwise, a landlord has no duty to furnish safe premises to his tenant, he reasons that the landlord would not be liable and that the property manager cannot be held to a higher duty than the landlord. That principle, however, is subject to exceptions, one of which is that any person whose noncompliance with applicable safety laws and regulations results in injuries of the kind the laws or regulations are designed to prevent is negligent and is liable for the injurious consequences suffered by persons embraced within the scope of the statutory or regulatory protection. See Blue Grass Restaurant Co. v. Franklin, Ky., 424 S.W.2d 594, 597 (1968), and other authorities therein mentioned.

'It is a firmly fixed rule that one injured by a violation of a statute may recover from a defendant such damages as he has sustained by reason of a violation of it.' Pirtle's Adm'x v. Hargis Bank & Trust Co., 241 Ky. 455, 44 S.W.2d 541, 546 (1932). No question is raised with respect to the official status of the state plumbing code promulgated pursuant to KRS 318.130. Administrative regulations properly adopted and filed have the force and effect of law, KRS 13.081, and as abserved by Chief Judge Swinford in Home Insurance Co. v. Hamilton, 253 F.Supp. 752 (E.D.Ky.1966), there is no reason why they should be considered differently, in the aspect here presented, from statutes or municipal ordinances. This means, of course, and we so hold, that they have the same effect as statutes or ordinances enacted directly by the legislative body from which the administrative agency derives its authority.

As of the time or times pertinent to this case Section PC--9, subsection 10, of the state plumbing code provided as follows:

'Temperature and Pressure Relief Valves. Temperature and pressure relief values shall be installed on all water heaters on the hot water side not more than 3 from the top of the heater. Temperature and pressure relief valves shall be of a type approved by the Department. When a water heater is installed in a location that has floor drain the discharge from the relief valve shall be piped to within 2 of the floor; when a water heater is installed in a location that does not have a floor drain, the discharge from the relief valve shall be piped to the outside of the building with an ell turned down and piped to within 4 of the surface of the ground. Relief valves shall be installed on a pneumatic water system.'

Insofar as Rietze's argument rests on the premise that a landlord would not himself be liable under circumstances similar to those in this case, we must...