Metropolitan News-Enterprise


Wednesday, January 2, 2008


Page 1


Court: Gas Company Not Liable For Scalding After Toilet Flush


By STEVEN M. ELLIS, Staff Writer


The Fifth District Court of Appeal has held that a gas company is not liable for injuries suffered by a person who was scalded by hot water while rinsing off after another person in the household flushed the toilet.

In an unpublished opinion Friday, the court affirmed the decision of Tulare Superior Court Judge Paul A. Vortmann to dismiss Izabelah Serrano’s claim against the Southern California Gas Company because the jury’s subsequent finding in a related claim against the property’s owner that the property was not in a dangerous condition at the time of the incident made it unlikely that the jury would have found that the gas company acted negligently in setting the hot water heater system temperature.

Serrano, an infant, was being rinsed in the bathtub in her family’s home by her mother and sister on Dec. 29, 2003 when her leg was scalded by water coming from the faucet after another sister flushed the toilet in the bathroom.  She alleged that the gas company, which had set the thermostat dial on the water heater at a setting below the setting marked “normal” when it restored gas service that had previously been disconnected, had created a dangerous condition creating a substantial risk of harm to tenants.

Serrano similarly alleged that the property owner, the Tulare County Housing Authority, had created a dangerous condition because the hot water heater system allowed the temperature in the bathtub/shower combination to rise to such heights that it could instantaneously scald an infant, and that the housing authority had negligently failed to warn her family of the dangerous character of the property and failed to protect her from it.

Vortmann dismissed the suit against the gas company, concluding that while the gas company had a duty not to supply natural gas to an appliance that would pose a risk of explosion or fire, it had no duty to warn the customer that the hot water flowing from a water heater set at normal would exceed 120 degrees.  Vortmann also held that Serrano had shown no evidence that the gas company caused the injury.

On appeal, Justice Brad R. Hill wrote for the court that Vortmann had erred in dismissing the portion of the suit against the gas company because the company was indeed under a duty of care to reset the thermostat with reasonable care.

“If, as plaintiff alleges, the Gas Company failed to use due care in setting the thermostat, so that the setting was higher than was safe, then it would be subject to liability for negligence based upon breach of a duty voluntarily undertaken.”

Hill also said that the trial court was correct in finding no evidence of causation.

“Assuming, as plaintiff contends, that it was negligent to set the thermostat at normal because the temperature at that setting was too high and created a potential for scalding…,” he said, “[t]he evidence would support a finding that the Gas Company’s conduct was a cause of plaintiff’s injury (whether concurrent or superseding), regardless of the negligence of the Housing Authority.”

However, Hill said, the trial judge’s decision to dismiss the portion of the suit against the gas company was harmless error because Vortmann had allowed the trial to proceed against the housing authority and the jury had found that the property was not in a dangerous condition.

“Because the jury found that the property was not in a dangerous condition at the time of the incident, implicitly finding that the temperature setting on the water heater did not create a substantial risk of harm to the tenants, it does not appear reasonably probable that the jury would have found that the Gas Company was negligent (i.e., exposed plaintiff to an unreasonable risk of harm) when it set the thermostat at normal.”

Hill was joined in his opinion by Justices Herbert Levy and Stephen Kane.

The case is Serrano v. Housing Authority of County of Tulare, F051090.


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