Filed: Aug. 16, 1995
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 94-60539 _ MELODY WILLIAMS, Individually and as Next Friend of Sherman Marion Williams, ET AL., Plaintiffs-Appellants, VERSUS BRIGGS COMPANY, ET AL., Defendants, STANDARD ENTERPRISES and THERM-O-DISC, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Mississippi _ August 21, 1995 Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: Melody William
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 94-60539 _ MELODY WILLIAMS, Individually and as Next Friend of Sherman Marion Williams, ET AL., Plaintiffs-Appellants, VERSUS BRIGGS COMPANY, ET AL., Defendants, STANDARD ENTERPRISES and THERM-O-DISC, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Mississippi _ August 21, 1995 Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: Melody Williams..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60539
_____________________
MELODY WILLIAMS, Individually and as Next Friend of
Sherman Marion Williams, ET AL.,
Plaintiffs-Appellants,
VERSUS
BRIGGS COMPANY, ET AL.,
Defendants,
STANDARD ENTERPRISES and THERM-O-DISC, INC.,
Defendants-Appellees.
____________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_____________________________________________________
August 21, 1995
Before WISDOM, DUHÉ, 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).
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A.
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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 § 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.
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(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
1
Mandell maintained that household water should not exceed 130
degrees.
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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
2
Summer Jewel Williams received partial thickness (second
degree) burns from, by Mandell's estimation, four to six seconds of
exposure to the water. (Mandell originally estimated six to ten
seconds.) However, according to charts which Mandell recognized as
respected authority, at only 140 degrees adult skin will receive
full thickness (third degree) burns in four to six seconds. Given
that Summer Jewel Williams received second, not third, degree
burns, and Mandell's admission that a child's skin would burn
faster than an adult's, there is a strong indication that the water
was less than 140 degrees. A temperature of 140 degrees is
consistent with the opinion of Summer Jewel Williams' treating
physician.
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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
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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
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256 (noting that the risk-utility analysis "does not create a duty
on the manufacturer to create a completely safe product").
Indeed, herein lies the balancing mandated by the risk-utility
analysis. In that balance, the fact is that households require hot
water, often very hot water, for various uses. Williams' water
heater produced water temperatures, at the faucet, in the range of
temperatures suggested for some household applications. Under
these circumstances, upon application of the risk-utility factors
suggested by the Mississippi Supreme Court, we hold that no
reasonable jury could conclude that the design of the Therm-O-Disc
thermostat was unreasonably dangerous.
B.
Two evidence claims are presented. We address them, before
turning to the substantive (negligence) claim against Standard
Enterprises, the apartment manager.
1.
Williams challenges the district court's refusal to allow
certain evidence regarding an alleged malfunction of the water
heater and thermostat. We review only for an abuse of discretion.
E.g, Esposito v. Davis, 47 F.3d 164, 168 (5th Cir. 1995); Shipp v.
General Motors Corp.,
750 F.2d 418, 427 (5th Cir. 1985).
More than two years after the accident, Dr. Forbes conducted
a test with the water heater from the Williams' apartment which,
according to Dr. Forbes, revealed a malfunction of the lower
thermostat, causing the water to overheat. The district court
refused to admit this evidence, on the basis that Williams did not
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sustain her burden of demonstrating that, at the time of the test,
the water heater was in substantially the same condition as at the
time of the accident. See Barnes v. General Motors Corp., 547 F.2d
275, 277 (5th Cir. 1977) (requiring tests to be conducted under
"substantially similar" conditions to those at the time of the
accident; burden of proof on party seeking to introduce evidence);
United States v. Gaskell,
985 F.2d 1056, 1060 (11th Cir. 1993).
The record supports this ruling. Various repairs were made to
the water heater between the accident and the test. Moreover,
there appears to have been at least some confusion as to the exact
nature of those repairs. And, needless to say, the passage of two
years certainly contributed to the district court's concern over
the reliability of the test. Even Dr. Forbes was unable to provide
any assurance to the district court that the conditions for his
test were substantially similar to those at the time of the
accident.
We need not linger long over the parties' debate about the
precise significance of the repairs to the water heater, or the
two-years' use between accident and testing. These matters are
left to the sound discretion of the district court.3 Shipp, 750
3
Moreover, Forbes' test sought to demonstrate that the water
heater malfunctioned to produce water of nearly 200 degrees. This
appears most inconsistent with the evidence of the conditions in
the bathtub at the time of the accident; the water was at most 155
degrees. Even taking into account the heat loss from water heater
to bathtub, it would not seem that 200-degree water at the water
heater would have cooled to 155 degrees in the bathtub, in light of
the fact that the water had apparently not been running for a long
period, was still running at the time of the accident, and was
being accumulated in the bathtub (apparently, toys at the drain
were blocking it), and, therefore, had not been allowed to cool
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F.2d at 427; Barnes, 547 F.2d at 277. That discretion was not
abused.
2.
At trial, Williams claimed that, if Dr. Forbes' test evidence
was not admitted, she was entitled to a spoliation of evidence
inference against Standard Enterprises, the apartment manager, for
its failure to preserve the condition of the water heater. The
district court denied the claim, finding, inter alia, that
Williams, not Standard Enterprises, was largely to blame for the
condition of the water heater.
Even assuming that the district court was Erie-bound to apply
Mississippi law on this point, we find no reversible error.
Williams cites two Mississippi cases, Delaughter v. Lawrence County
Hosp., 601 So. 2d 818 (Miss. 1992) and Bott v. Wood,
56 Miss. 136
(1878), to support her spoliation claim. Although both support the
general proposition that spoliation occurs when a party fails to
fulfill a duty to preserve evidence, neither has any bearing in
this instance. Unlike in Delaughter and Bott, the evidence in
issue, the water heater, was not destroyed or lost. See
Delaughter, 601 So. 2d at 821 (defendant hospital lost plaintiff's
medical records);
Bott, 56 Miss. at 136-37 (intentionally destroyed
document). Furthermore, Williams offered no evidence to suggest
that Standard Enterprise did anything to alter the condition of the
water heater, other than allow it to remain in the apartment and
continue in operation. And, as the district court noted, at any
significantly.
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time following the accident, Williams could have taken steps to
secure the water heater.
C.
Williams' claim against her apartment manager (landlord),
Standard Enterprises, was for negligence -- its failure to warn of,
or correct, the alleged defective condition of the water heater.
Williams contends that the district court applied the wrong rule of
decision in granting judgment as a matter of law in favor of
Standard Enterprises. In light of our having rejected the claim
that the water heater was defective because the water temperature
was too high, and our having upheld the evidentiary rulings
(including on the spoliation claim) bearing on the alleged
defective condition of the water heater, it is most questionable
whether a negligence claim remains against the landlord. In any
event, we reject it as well.
The district court ruled:
In Mississippi a landlord's breach of his covenant
to generally repair the rented premises or its
contents does not render him liable for personal
injuries to the tenant ... unless it appears that
at the time of the lease that this premises
contained, to the landlord's knowledge, some
dangerous hidden defect or defects unknown to or
concealed from the tenant and which the tenant
could not have discovered by a voluntary
inspection.
Finding insufficient evidence that the accident resulted from a
defect known by Standard Enterprises, the district court granted
judgment as a matter of law.
Williams insists that, in 1991, in O'Cain v. Harvey Freeman &
Sons, 603 So. 2d 824 (Miss. 1991) (en banc), the Mississippi
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Supreme Court adopted a more stringent standard for landlords,
requiring them to exercise reasonable care in discovering any
hidden defects on their premises -- essentially, a duty to inspect.
Williams bases this contention on the concurring opinion in O'Cain.
See Id. at 831-33 (Sullivan, J., concurring). Assuming, arguendo,
that the concurring opinion endorses Williams' position4, the
opinion of the en banc court clearly rejected it: "A landlord is
liable for latent defects which he knows about and conceals or
being aware of the defect, he fails to inform the tenant."
Id. at
830 (emphasis in original) (quoting Loflin v. Thornton,
394 So. 2d
905, 906 (Miss. 1981)). Accordingly, we cannot agree that the
concurrence has changed Mississippi law.5 And, absent such a
change, Williams does not contend that she is otherwise entitled to
relief on this claim.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
4
The O'Cain concurrence concludes:
I advocate that the bare minimum standard for an
implied warranty of habitability should require a
landlord to provide reasonably safe premises at the
inception of a lease, and to exercise reasonable
care to repair dangerous defective conditions upon
notice of their existence by the tenant, unless
expressly waived by the tenant.
O'Cain v. Harvey Freeman & Sons, 603 So. 2d 824, 833 (Miss. 1991).
5
Williams notes that a majority joined the concurring opinion.
This is indeed an anomaly; but, when faced with inconsistent
holdings between the "opinion of the court" and a concurrence, we
must follow the former.
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