February 17, 2000

Lack of warning puts 2 friends in hot water

By ANDREW BERGH
Special to the Journal

Just 10 degrees Fahrenheit.

That’s the only difference between a hot shower and a really hot shower.

I’m not talking apples and apples. I’m comparing a soothing flow of steamy H2O – you know, the massaging kind that tells your stress to take a hike – to a scalding spray that makes your skin blister.

I’m nobody’s fool, of course, so I haven’t done any water temperature tests in my own shower.

But I have read Waldo v. Moore.

That’s a Georgia case involving a 63-year-old woman who suffered second degree burns while taking a shower at a friend’s house. In the ensuing lawsuit, the key issue was whether the guest should have been warned that the shower water was 10 degrees hotter than usual.

Nothing too complicated about the facts in the Waldo case.

As she had done once before, Alice Waldo scheduled an overnight visit with her friend, Margaree Moore. After socializing for several hours, the ladies called it an evening.

The next morning, Margaree woke up first and decided to get a jump on the day by washing some clothes. To accommodate her plans, she raised the thermostat on her water heater from 120 degrees to 130 degrees Fahrenheit. (Must've been a load of whites.)

So where’s Waldo?

After waking up and having breakfast, Alice announced she was going to take a shower. But Margaree, for whatever reason, didn't warn her friend about the higher temperature setting.

Alice had previously taken showers at Margaree’s home without any problems. Definitely no burns, or anything even remotely resembling a close call. So as she had done on prior occasions, Alice got into the bathtub, turned on the hot water knob, and stood under the spout without testing the water.

I have no idea (and don't want to know) what a lobster thinks the instant it’s dropped into a pot of boiling water.

But that could very well describe Alice’s thoughts when she was first struck by the burning agua.

Startled to say the least, Alice slipped and fell during her hurried attempt to turn off the water. She remained in the bathtub almost 30 seconds until others in the house heard her cries for help and came to her rescue. But by that time, Alice's skin was already starting to blister from the scalding water.

No doubt about it, second-degree burns can be very painful. So in an effort to spread this pain, Alice later sued Margaree for damages.

(That's actually a cheap shot on my part. If Margaree had homeowner's insurance and knew the insurance company would defend her at its expense and also pay any judgment, Margaree privately might've been rooting for Alice.)

When the case went to trial, a key witness for Alice was her treating physician, who was trained and experienced in treating scald victims.

The doctor testified that the maximum recommended safe temperature for bath water is 120 degrees Fahrenheit. In view of the short time it took for Alice to suffering blistering from her second-degree burns, the doctor estimated that the shower water was at least 130 degrees Fahrenheit at the time of the incident.

All in all, pretty convincing evidence from a doctor who knew his stuff.

But in an unexpected turn of events, the trial judge took the case from the jury by granting Margaree’s motion for a directed verdict. What the judge essentially ruled was that Alice had failed to prove her claim as a matter of law.

Burned yet again, Alice appealed.

And by a 4-3 vote, a Georgia appeals court ultimately ruled one month ago that the trial judge screwed up by taking the case from the jury.

Here's the (only) boring part.

Under Georgia law, social guests don't rate too high on the food chain.

To be a little more specific, a social guest in Georgia can't recover damages if she only proves ordinary negligence on the part of the homeowner. To prevail, the plaintiff must instead show the defendant was grossly negligent -- i.e., that her conduct was "wanton and reckless."

So that was the $64,000 (or more) question: Did Alice present any evidence that Margaree was guilty of gross negligence?

And on that score, the appeals court sided with Alice by the slim one-vote margin. Since Margaree had intentionally raised the water temperature and then negligently failed to warn her social guest about the 10-degree change even after Alice said she was going to take a shower, the majority concluded that the issue of gross negligence should have been left to the jury.

Although I'm not sure I necessarily agree with the majority's reasoning, it’s a moot point since I don't wear the black robe.

But one thing can safely be said: Since Alice gets another trial, it's potentially Margaree's turn to be in hot water.

Previous columns:

• An eyeful of cadaver law, 01-20-2000
• There's something about LA, 01-03-2000
• Handicaps, good and bad, 12-10-1999
• An open-and-shut case, 11-25-1999
• Praise the law, 11-04-1999
• After grief comes gimme, 10-21-1999
• Cybercow meets digitruck, 10-01-1999
• Strange, blind justice, 09-23-1999