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GONZALEZ v. MORFLO INDUS.

July 2, 1996

ANGEL GONZALEZ, an infant under the age of fourteen years, by his mother and natural guardian, MARIA GONZALEZ, and MARIA GONZALEZ, Individually, Plaintiffs, against MORFLO INDUSTRIES, INC., SABH WATER HEATER GROUP, and ROBERTSHAW CONTROLS, INC., Defendants.


The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 Angel Gonzalez and his mother, Maria Gonzalez, brought this action against Morflo Industries, Inc. ("Morflo"), Sabh Water Heater Group ("Sabh") *fn1" and Robertshaw Controls Company ("Robertshaw") seeking damages for injuries sustained when an infant was scalded by hot tap water in a bath tub. Plaintiffs claim that the injuries were caused by a defective water heater and temperature control device. Morflo and Sabh filed cross-claims against Robertshaw. All defendants now have moved for summary judgment on plaintiffs' claims. For the reasons stated herein, their motions are granted.

 FACTS

 In October 1992, the Gonzalez family lived in a rental unit in a house in Queens, New York. The water supplied to their apartment was heated by a Morflo water heater, which had a temperature control device on its exterior that was manufactured by Robertshaw and sold to Morflo. This water heater had been purchased by Maria Garcia, the owner of the Gonzalezes' apartment, and installed by a plumber hired by Garcia in 1992. The Morflo heater, which had been design-certified by the American Gas Association, was located in the basement of the apartment house, which was locked and inaccessible to tenants. As a result, none of the Gonzalezes had ever even seen the water heater.

 There were extensive warnings on the heater itself and in the manual supplied to Garcia when she purchased the heater. The Robertshaw temperature control device on the heater included a white dial and bore the following statement in red letters: "CAUTION: Hotter water increases the risk of scald injury." The heater itself also bore a warning label affixed to its exterior reading "DANGER" and bearing a picture of hot water coming from a faucet and burning a hand beneath it. Additionally, it stated:

 
Water temperature over 120 degrees Fahrenheit can cause severe burns instantly or death from scalds. Children, disabled, and elderly are at highest risk of being scalded. See instruction manual before setting temperature at water heater. Feel water before bathing or showering. Temperature limiting valves are available, see manual.

 In the manual that accompanied the Morflo heater, the following warning and information appeared:

 
DANGER! The thermostat is adjusted to its lowest temperature position when shipped from the factory. Adjusting the thermostat past the 120 degree Fahrenheit bar on the temperature dial will increase the risk of scald injury. The normal position is approximately 120 degrees Fahrenheit.
 
DANGER: WARNING. Hot water can produce first degree burns in 3 seconds at 140 degrees Fahrenheit (60 degrees Celsius), in 20 seconds at 130 degrees Fahrenheit (54 degrees Celsius), in 8 minutes at 120 degrees Fahrenheit (49 degrees Celsius)

 At the time the water heater was installed, the temperature control device was set on "medium," which Garcia stated was 140 degrees Fahrenheit, and apparently remained on the medium setting until Angel Gonzalez was burned.

 This occurred on October 1, 1992, when fifteen month-old Angel was being given a bath by his fifteen year-old brother, Daniel. Upon hearing the telephone ring, Daniel left Angel alone in the tub and went to answer the telephone. No one else was in the apartment with the two boys. The water was running when Daniel left the bathroom. Although the record does not reveal exactly what happened next, it is undisputed that Angel was scalded by hot water that came out of the tap when Daniel went to the telephone.

 Angel and his mother, Maria Gonzalez, brought this suit against Morflo, Sabh and Robertshaw, alleging that Angel Gonzalez was burned as a result of design and manufacturing defects in Morflo's water heater and Robertshaw's temperature control device and inadequate warnings and instructions accompanying them. Plaintiffs claim that there were (1) manufacturing defects for which defendants are strictly liable and which constitute negligence and a breach of implied and express warranties; (2) design defects for which defendants are strictly liable and which constitute negligence and breach of implied and express warranties; and (3) inadequate warnings for which defendants are strictly liable and which constitute negligence.

 DISCUSSION

 A. Standard For Summary Judgment

 Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden is upon the moving party to demonstrate that no genuine issue of material fact exists. All ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

 Where the moving party demonstrates that if the case went to trial there would be no competent evidence to support a judgment for its opponent, the moving party has met its burden. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Apex v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987), cert. denied, 484 U.S. 977, 98 L. Ed. 2d 487, 108 S. Ct. 489 (1987); Wright, Mille & Kane, 10A Federal Practice and Procedure § 2727 (1983).

 To survive the summary judgment motion, the non-moving party must make a showing sufficient to establish the existence of the elements essential to that party's case. Mount Vernon Fire Ins. v. Creative Housing, 797 F. Supp. 176, 179 (E.D.N.Y. 1992). When no rational juror could find in favor of the nonmoving party because the evidence to support its case is so slight or non-existent on a material element, there ...


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