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Back Pain

New York State Court of Appeals

Simmons v. Sacchetti

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.  

Arnold E. DiJoseph, III, for Plaintiffs-Appellants    

Decided August 31, 2010                                                         

In this case, the 1½ year-old infant Plaintiff suffered severe burning and scarring over 26% of her body when she was accidentally exposed to scalding hot bath water in the apartment she lived in with her mother and brothers.  The evidence showed the water to be as hot as 186° F when tested after the accident as a result of the negligent failure to maintain the domestic hot water system in a reasonably safe condition. This included the presence of a malfunctioning mixing valve and a boiler that was being operated in violation of Building Code requirements. The owner of the building did nothing to correct the hazardous condition despite being aware of the danger even before the infant’s family moved into the building.

The owner of the building as well as the maintenance company sought to have the case against them dismissed by claiming that it was not their duty to provide water below any particular temperature and that the infant’s mother bore the responsibility for properly tempering the water in her apartment so that her child was not injured. While the lower court (Supreme Court) refused to dismiss the case, the Defendants appealed to the Appellate Division and that Court reversed the lower court and dismissed Plaintiffs’ case agreeing with the arguments made by Defendants.

Mr. DiJoseph sought permission from the New York Court of Appeals (New York’s highest court) to have the Appellate Division’s determination reviewed since it was in direct conflict with numerous decisions previously rendered in cases involving burns from excessively hot water in residential buildings.  The Court of Appeals granted Plaintiffs’ application for leave to appeal and, based on the briefs submitted by Mr. DiJoseph, the Court of Appeals agreed that the Appellate Division was in error when it reversed the lower court and dismissed Plaintiffs’ case against the building owner and maintenance company.

In reversing the Appellate Division, the Court of Appeals found that there were issues of fact as to whether the Defendants (owner and maintenance company) “negligently failed to maintain the apartment building's boiler and domestic hot water system in a reasonably safe condition and whether the negligence of those defendants proximately caused the infant plaintiff's injuries.” Thus, rather than being dismissed, Plaintiffs’ case will now proceed to trial.




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