Gensburger v. Shapiro

SHOEMAKER, J. Defendants appeal from an order granting plaintiff’s motion for a new trial.

Plaintiff Lily Gensburger brought this action to obtain damages for personal injuries sustained when she was scalded by hot water. Plaintiff was a tenant in an apartment house owned by defendants Glafara and Efim Shapiro, who employed defendant A. J. Lay to maintain and control the hot water supply. Plaintiff’s complaint was that defendants had maintained the hot water supply so negligently as to cause excessively hot water to flow through the pipes, and that as a proximate result of this negligence, plaintiff, upon using the bath facilities in her apartment, was severely burned and scalded by excessively hot water coming from the shower head.

Defendants’ answer denied the material allegations of the complaint and affirmatively asserted the contributory negligence of plaintiff.

Plaintiff testified that she was 61 years old, and had rented the apartment from defendants Shapiro in August 1957; that she took daily baths, and knew the hot water furnished was “very scalding” and that she had complained about it to Mrs. Shapiro. On the evening of December 7, 1957, the plaintiff stated she went to bed but was unable to sleep due to pain in her side. After attempting to alleviate the pain with a heating pad, she decided to get up and take a bath. At approximately 2 o’clock in the morning of December 8, 1957, she went into the bathroom and pro[163]ceeded to draw the water for her bath. The bathtub fixtures consisted of three faucets or handles; the one closest to her was for hot water, the middle handle diverted the water either into the tub or into the overhead shower, and the third handle was for cold water. The plaintiff testified that she turned on both hot and cold water and allowed the mixture to run into the tub. Although normally right-handed, she found it easier to manipulate the handles with her left hand, and use her right hand to steady her balance as she leaned against the side of the tub. After turning on both the hot and cold water, she went out into the hallway to get a towel. Upon returning to the bathroom, she tested the tub water with her right hand, turned off the cold water, and allowed hot water to continue to run into the tub for a few seconds. She then tested the water temperature again and reached over to turn off the hot water with her left hand. As she turned the hot water handle, the water was diverted up through the shower, severely scalding her left shoulder and arm.