It is cases like this that make me grateful that there are two levels of appellate courts in the New York State court system rather than only one.

In Simmons v. Saccehtti, the plaintiff - a 17 month-old child - suffered serious burns when the water coming out of the faucet in her apartment's bathtub apparently exceeded safe temperatures, and came in contact with her body. For those that may be unaware, NYC Building Code Reference Standard 16, P107.26(b) requires that buildings maintain temperature relief valves to assure that excessively hot water does not leave the building's boiler system, and this building apparently didn't have one, and had been issued citations for this failure in the past.

Noting that the child was apparently left alone in the tub when she was hurt, however, the Appellate Division held that the complaint should be dismissed, because the child's mother and older brother's negligence in leaving her alone were superseding causes for this incident, and therefore, absolved the building and plumbing contractor of any liability for the accident. In addition, this court opined that, in any event, the buiding owner could not be held liable because "[T]here is no prescribed maximum temperature under the Administrative Code for the water that is supplied to an individual apartment." (Interestingly, the defendants in a hot water burn from a shower case I handled a few years ago raised the same argument, but it did not result in the dismissal of my case.)

As suggested above, the Court of Appeals (New York State's highest court) disagreed, and reinstated the complaint.

And, in my view, that's an extremely positive result from a public policy perspective.

Here's why: if the Appellate Division's ruling were allowed to stand, that would effectively de-fang, if not abrogate altogether, the Reference Standard mandating that the multiple dwelling buildings' boilers be outfitted with functioning temperature relief valves. In other words, if the buildings can't be held liable for burning water in any individual apartment, then there's no compelling economic reason to make sure that the water temperature in their buildings is safe.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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