$______ RECOVERY - LANDLORD NEGLIGENCE - PLAINTIFF GIRLFRIEND OF TENANT SUFFERS SECOND AND THIRD DEGREE BURNS TO HAND WHEN USING BATHROOM SINK IN EARLY MORNING HOURS - NEED FOR SKIN GRAFT SURGERY

• Pages: 5-5

$1,000,000 RECOVERY – LANDLORD NEGLIGENCE – PLAINTIFF GIRLFRIEND OF

TENANT SUFFERS SECOND AND THIRD DEGREE BURNS TO HAND WHEN USING

BATHROOM SINK IN EARLY MORNING HOURS – NEED FOR SKIN GRAFT SURGERY

Bronx County, NY

This landlord negligence action involved a

plaintiff in her late 20s, who was the girlfriend of

the tenant. The plaintiff contended that when she

turned on the water in the bathroom sink, after

using the bathroom in the early morning hours,

she suffered primarily second, and a small area of

third degree burns on most of the dorsal area on

one hand. The plaintiff maintained that the tenant

had complained of scalding water emanating

from the shower at least once in the preceding

approximate one-month period, and that the

defendant took no steps to repair or replace the

hot water heater, which, the evidence revealed,

controlled the water from the sink as well.

The defendant landlord denied that it had received

any prior complaints, and also maintained that if the

tenant had experienced prior incidents, the tenant

was negligent in failing to advise them. The landlord

named the tenant as a third party defendant.

The tenant contended that logic and common sense

dictated that he would have made such complaints

when previously experiencing the unintended flowing

ofhotwaterfromtheshower.Theevidencealsodis-

closed that the same hot water heater controlled

both the shower and the sink, and the plaintiff sup-

ported that if the defendant had repaired or re-

placed the heater after complaints were made by

the tenant, the incident would not have occurred.

The defendant also argued that the jury should con-

sider that the plaintiff’s version, as recorded in the

medical records, was inconsistent in some respects.

The medical records reflected that the plaintiff was

washing her hands when burned, and the plaintiff tes-

tified in her examination before trial (EBT) that she was

brushing her teeth. The defendant also pointed out

that in her statement at the hospital, the plaintiff indi-

cated that she only turned on hot water, and in her

EBT, she testified that she turned on both. The plaintiff

countered that such discrepancies were minor, and

also argued that in view of the nature of the incident

in which she was suddenly burned in the middle of

the night – it was not surprising that her version would

not be a clear, as would have otherwise have been

the case.

The plaintiff maintained that she had not been drink-

ing, and contended that the water had reached a

sufficiently high temperature to cause these injuries

virtually instantly. The plaintiff suffered primarily sec-

ond degree burns to most of the dorsal area of one

hand, and supported that initial treatments, including

painful debridements, were not adequate, and that

she required skin graft surgery. The plaintiff main-

tained that the permanent scarring is significant, but

did not suffer permanent functioning deficits with the

hand that was burned.

The plaintiff was a student at the time, and made no

income claims.

The case settled prior to trial for the policy limits of

$1,000,000, plus the entire medical payments portion

of the policy. The third party defendant tenant did not

contribute, and the landlord discontinued the case

against him.

REFERENCE

J.S. vs. S.W. Index no. 21094/12, 11-07-14.

Attorney for plaintiff: Eitan A. Ogen of Ogen &

Sedaghati, P.C. in New York, NY.

COMMENTARY

Although the incident occurred in New Jersey, the landlord, who

owned the property in an individual capacity, lived in Queens, and

the plaintiff lived in the Bronx. The plaintiff was able to obtain ju-

risdiction in New York, and have the case venued in Bronx County,

because of the fact that the plaintiff resided there. This factor was

clearly significant, and the defendant did not want to risk an ex-

pected reaction of the Bronx County jury that could easily have

prompted an award in excess of the policy.

Additionally, the defendant had photographs taken of the hand,

which plaintiff’s counsel relates did not depict injuries that were as

severe as that displayed live by the plaintiff. In this regard, if the

case had proceeded to trial, the defendants could not have used

this evidence without a response by the plaintiff that when con-

trasted with the live view of the plaintiff’s hand. It was likely that

the defense photographic evidence had been manipulated to ren-

der the scarring appearing as less severe. It is felt that such a sce-

nario would have clearly intensified the jury’s expected reaction.

Finally, the plaintiff would have countered the defendant’s endeav-

ors to undermine the plaintiff’s case by pointing to inconsistencies

regarding the manner, in which the incident occurred in the medi-

cal records and her testimony, by stressing that in view of the na-

ture of the early morning incident in which she was burned, it was

not at all surprising that the version reported to the hospital was

not as clear, as would otherwise have been expected.

SUMMARIES WITH TRIAL ANALYSIS 5

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