Thomas v. Housing Authority of City of Bremerton

• Court: Washington Supreme Court
• Writing for the Court: FINLEY; DONWORTH, HAMILTON, ROSELLINI, JJ., and BARNETT
• Citation: Thomas v. Housing Authority of City of Bremerton, 426 P.2d 836, 71 Wn.2d 69 (Wash. 1967)
• Decision Date: 13 April 1967
• Docket Number: No. 38561
• Parties: Carrie THOMAS, a minor, by Roger R. Thomas, her Guardian ad Litem, Respondent, v. HOUSING AUTHORITY OF the CITY OF BREMERTON, a Public Body Politic and Corporate, Appellant.

Page 69

71 Wn.2d 69

426 P.2d 836

Carrie THOMAS, a minor, by Roger R. Thomas, her Guardian ad Litem, Respondent, v. HOUSING AUTHORITY OF the CITY OF BREMERTON, a Public Body Politic and Corporate, Appellant.

No. 38561.

Supreme Court of Washington, Department 2.

April 13, 1967.

Hullin, Ehrlichman, Carroll & Roberts, Jack E. Hullin, Seattle, Helen Graham Greear, Bremerton, for appellant.

Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Harold Fardal, Seattle, Greenwood, Shiers & Kruse, Frank A. Shiers, Port Orchard, for respondent.

FINLEY, Chief Justice.

One morning, Carrie Thomas, then age 18 months--now the minor plaintiff in this lawsuit--was playing in the low-rent, one-bedroom apartment which her parents leased from the defendant public housing authority. Her mother was not feeling well and was taking a nap in the bedroom. Carrie's 17-year-old uncle, Floyd Grubs, was engaged in washing and rinsing dishes in a mixture of hot and cold water. Suddenly Carrie screamed. Her young uncle rushed into the bathroom. He found the child standing beside a small pool of water which had overflowed from the washbasin. Her nightgown was soaking wet on the left side. Water so hot it approached boiling temperature filled the basin. The hot-water faucet handle was too hot to touch. Apparently Carrie had climbed up, turned on the faucet, and fallen into the washbasin after it had filled with water. The entire left side of her body was severely scalded. Second and third degree burns and permanent injuries resulted.

Carrie Thomas and her parents had moved into their low-rent apartment unit some four months before the accident. It was one of 582 living units in the project known as West Park, operated by the defendant public housing authority. The Thomases' written lease with defendant contained, Inter alia, the following provisions:

Liability--The Management shall not be responsible for loss or damage to property, nor injury to persons, occuring (sic) in or about the demised premises, by reason of any existing or future condition, defect, matter or thing in said demised premises or the property of which the premises are a part, nor for the acts, omissions or negligence of other persons or Tenants in and about the said property. The Tenant agrees to indemnify and save the Management, its representatives and employees harmless from all claims and liability for damage to property or injuries to persons occuring (sic) in or about the demised premises

TENANT'S RESPONSIBILITIES

b. Entry--The Management may enter the premises during all reasonable time for inspection or repairs, or to remove signs, alterations or additions placed on the premises without permission.

c. Damage--The tenant shall notify the Management immediately of necessary repairs or of damage to buildings or fixtures.

The heating appliance which furnished hot water for the Thomases' apartment was about 22 years old at the time of the accident. A small plate or cover on the side of the water heater bore a legend reading 'remove plate for adjustment.' Underneath the cover was a set screw which in effect operated as a lever to adjust the thermostat and the temperature of the water from extreme 'hot' to extreme 'cold' or some intermediate point. At the time plaintiff suffered her injuries, the mechanism was set all the way to the 'hot' position. Even if the mechanism had been set at a lower or colder temperature reading, nevertheless, the water temperature Actually produced could have been extremely hot. This is because the set screw could be unscrewed, moved, and reset to vary and to make the entire temperature range either higher or lower. Testimony introduced at the trial was capable of supporting a jury finding that no one checked the position of the set screw or the temperature range of the water before Carrie and her parents moved into the apartment, nor while they resided there. Three times during the period in which the Thomases resided in the apartment, defendant's maintenance man serviced the water heater at the Thomases' request. The servicing consisted of cleaning out soot, adjusting the air on the burner, and, on one occasion, relighting the pilot light; but it did not entail checking or changing the thermostat adjustment.

The water heater in question was tested after the accident. On the hottest setting, it produced water ranging from 180 to 208 degrees Fahrenheit. On six arbitrarily chosen lower settings, it produced lower ranges of temperature down to 122 to 126 degrees on the lowest setting, with the one exception that it once produced water of 200 degrees on the middle setting after the burner was left on overnight. Expert testimony produced at the trial tended to show that, based on the distortion of a plastic toothbrush which had been in the washbasin, the water which scalded Carrie was approximately 200 degrees Fahrenheit, or hotter.

This lawsuit was instituted by her guardian ad litem alleging that her injuries were proximately caused by the negligence of the defendant-appellant public housing authority. The jury returned a verdict for the plaintiff upon which judgment was entered, and the defendant appeals contending it is entitled to a judgment of dismissal as a matter of law. Defendant-appellant's three assignments of error raise three questions which we will now discuss:

First, the defendant housing authority maintains that it was under no duty to prevent the injuries posed in plaintiff's complaint; i.e., it is not chargeable with negligence because the occurrence of the accident was not reasonably foreseeable. Anderson v. Reeder, 42 Wash.2d 45, 253 P.2d 423 (1953), and Fritsche v. City of Seattle, 10 Wash.2d 357, 116 P.2d 562 (1941), stand for the unquestioned proposition that when an accident occurs which is not reasonably foreseeable and which, according to common experience, is not likely to happen, a defendant is not chargeable with negligence. However, for a defendant to be held liable for maintaining a dangerous condition, proof as to foreseeability of the particular manner or nature of the occurrence is not necessary. It is sufficient if the general type of danger is reasonably foreseeable. Fleming v. City of Seattle, 45 Wash.2d 477, 275 P.2d 904 (1954).

The defendant's maintenance superintendent admitted on the witness stand that water even as hot as 180 degrees Fahrenheit was dangerously hot. The fact that he considered it dangerous clearly implies that he could foresee that people could be exposed to it long enough to cause injury. This seems particularly pertinent in view of the well known fact that many small children were living in the low-rent public housing project.

As indicated hereinbefore, there was substantial evidence produced at the trial to support a jury determination that the water which scalded Carrie was 200 degrees Fahrenheit, or hotter. There was also evidence that the defendant's maintenance employees knew that the hot water from this type of hot water tank could and did reach 200 degrees, and hotter, when the thermostat was out of adjustment or the lever was on the highest setting. It should reasonably have been known to the defendant's agents that exposure to water of that heat even momentarily could cause serious injuries. Tending to support a conclusion that the injuries suffered by the plaintiff were a foreseeable consequence of the overly hot water is our decision in Kidwell v. School Dist. No. 300, 53 Wash.2d 672, 335 P.2d 805 (1959). Therein, this court held that an injury to a child which occurred in the moving of a precariously balanced, high up-right piano in a school activities room was sufficiently foreseeable to sustain liability.

We find further support for concluding that the injuries were reasonably foreseeable in a case involving a somewhat analogous factual pattern. In Thompson v. Paseo Manor South, Inc., 331 S.W.2d 1 (Mo.App.1959), a 22-month old child fell from her bed and came into contact with uninsulated and unprotected heating pipes which caused injuries for which suit was brought against the landlord. In reversing a judgment for the defendant landlord, the court, 331 S.W.2d at 6-7, made the following observation in regard to foreseeability:

It may be conceded that this child falling from its bed and becoming entangled in the pipes and receiving the injuries complained of was an unusual occurrence. But the landlord knew that the child occupied the apartment, and no doubt knew of children occupying other similar apartments. It is not the unusual manner of receiving injuries that determines liability, but whether the defendant could have reasonably anticipated that a child would receive injuries from the pipes. In Hammontree v. Edison Bros. Stores, Inc., Mo.App., 270 S.W.2d 117, 126, it is said: 'Relating to those dangers to be reasonably anticipated--if there is some probability or likelihood, not a mere possibility, of harm sufficiently serious that ordinary men would take precautions to avoid it, then the failure to do so is negligence. While the likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor of the happening must exceed those against it. The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it.' (Italics ours)

We think that the evidentiary pattern of the instant case meets the test or standard for establishing liability, i.e., the overly hot water posed a danger to tenants and children of tenants of the housing project which was sufficiently foreseeable to support a determination of liability. See also Housing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14 So.2d 527 (1943).

Next, the defendant maintains that assuming the water was excessively hot, it is not liable under applicable landlord-tenant law. The defendant cites such cases as Flannery v. Nelson, 59 Wash.2d...