Landlord Loses Summary Judgment Motion Against Child Burnt by Too-Hot Water in Bathtub

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Moshe K. (Anonymous) v. Nu Kol Tuv, Inc.

Date: Aug. 22, 2012.

From: New York attorney Gary E. Rosenberg

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Facts: The infant (child) plaintiff was burned in a bathtub full of hot water. He was left sitting there for about five minutes, when his mother heard him screaming. While the drain hadn't been closed, there was still about an inch of water in the tub. He sued the landlord because the water wasn't supposed to be so hot.

The landlord made a motion seeking summary judgment dismissing the accident victim's lawsuit.

As the party applying for summary judgment the landlord, in the first instance, had the burden of making, essentially, a negative case.

The landlord failed to show that its water heater was correctly maintained and inspected. The landlord never said at what temperature the water heater was set. Supposedly, other families had complained about the too-hot water. The landlord didn't address those complaints in its motion.

Holding: You may think this accident is entirely the mother's fault. The appeals court upheld (affirmed) the lower court's denial of summary judgment to the landlord, noting that whether the mother negligently supervised her child, and whether this and not the landlord's carelessness caused the accident, are questions to go to the jury.

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