Plaintiff Overcomes Summary Judgment in Shower Burn Case

In Clindinin v. New York City Housing Authority, NY Supreme Ct. # 109954/2010, the New York Supreme Court recently denied defendant New York City Housing Authority’s motion for summary judgment.

In his complaint plaintiff alleged that while taking a shower the water changed erratically “from cold and cool to scalding hot” and that the building’s “defective and unsafe” hot water system was to blame. Plaintiff asserted that he was diagnosed with 2nd and 3rd degree burns over 13% of his body.

The law, as summarized by the court:

A landlord may be held liable for injuries resulting from dangerous conditions on its property only where it created the condition or had actual or constructive notice of the condition …,, and must have notice of the specific condition at issue. …

Constructive notice ordinarily means that a person should be held to have knowledge of a certain fact because he knows other facts from which it is concluded that he actually knew, or ought to have known, the fact in question. Constructive notice also exists whenever it is shown that reasonable diligence would have produced actual notice. …

To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it. …

A real property owner owes a duty to maintain the property in a reasonably safe condition. … Furthermore, [Multiple Dwelling Law § 78(1)] requires the owners of multiple dwellings to keep their premises in good repair, and [Multiple Dwelling Law § 77(4)] specifically requires that plumbing and drainage system be maintained in good repair.

While defendant asserted that it lacked notice of any problem with the building’s hot water, plaintiff presented evidence that two tenants complained to the NYCHA about a “too hot water/erratic hot water condition.”

Defendant failed to establish its entitlement to summary judgment, as it did “not adequately address plaintiff’s contention of a water temperature change from cool to scalding.”  Plaintiff also presented sufficient evidence to defeat defendant’s motion; for example, the affidavit of plaintiff’s expert, a master plumber, presented a fact issue as to whether a broken pump caused hot water to travel to plaintiff’s apartment.

The court analogized this case to Scholtz v. Catholic Health Sys. of Long Is., Inc., “where the plaintiff alleged scalding from a sudden shift in the temperature of running water, and the court found triable issues of fact as to whether defendant properly maintained hot water system.”

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