In litigation with various types of product liability cases, the most often used
defense proffered has been that the danger giving rise to the injury was "open and
obvious," and hence the user, guardian or parent of a child or invalid (those
generally injured) "incurred the risk" or "assumed the risk" and
caused their own harm. This simply is not so in litigation with tap water scald burn
injuries. Reasons are many and for example:
1. With very young children and toddlers, they may not be strong but they can be fast.
Young children can easily turn on a worn hot water valve in the bathtub after their
bathing water has been drawn. When the water is excessively hot, over 115 F by only 25
degrees, the child can incur 2nd or 3rd degree burns before the caretaker can turn off the
hot water quick enough, even if the caretaker is in the bathroom with the child.
2. There have been occasions where people of advanced age have slipped on the soapy
floor of a bathtub while taking a shower, accidentally turned the mixing valve to all hot
while falling, and be so severely injured from the fall that they simply cannot reach up
to turn off the scalding water.
3. People of any age can have an unexpected petite or grand mal seizure and get severe
scald burn injuries, regardless of any knowledge that they may have about scald burns.
4. It is not obvious what the temperature of hot water may be by smelling, hearing, or
seeing the water. It will become obvious when the excessively hot water is felt during 2nd
degree burns, which may be too late to avoid injuries.
5. It is not open or obvious to the average prudent member of the community that the
risk of tap water scald burns increase exponentially with relatively small increases in
decrements of temperature change.
6. It is not open and obvious to the vast majority of people what the time- temperature
scald burn relations are for 2nd or 3rd degree burns, for adults of for children.
7. It is not open and obvious what the time-temperature scald burn relations are from
reviewing hundreds of hot water heater manufacturer's owners manuals, or their
installation manuals, or their product brochures.
8. It is not open and obvious what the hot water temperature in the hot water heater
tank may be with any particular thermostat setting.
9. It is not open and obvious that a 4 GPM hot water draw rate exceeds the recovery of
all normal residential hot water heaters, so the drastic change from the draw down
temperature to the stacking temperature is not obvious.
10. It is not open and obvious to the ordinary consumer what, when, where, why, how a
external tempering valve on the heater can or should be used.
I 1. It is not open and obvious as to the extreme consequences of incurring tap water
scald burn injuries. The initial injuries may appear to be nothing more than a deep
sunburn, until later when the blisters begin to form.
12. It is not obvious that blisters accidentally punctured are extremely susceptible to
infection.
13. It is not obvious how a necrosis from deep 2nd degree burns can progress into the
equivalent of full 3rd degree burns.
14. It is not open and obvious what time duration and extent of injury with scald burns
can cause destruction of all the nerves in the skin.
15. It is not open and obvious what specific temperatures are extremely dangerous.
After the E. coli in hamburgers in California occurred, FDA passed a regulation that
hamburger meat had to be cooked at 155 F - and ANSI Z21.10.1 has a test at 160 F that
pronounces a gas water heater satisfactory if the temperature does not exceed 190 F!
16. It is not open and obvious how a dermatome is used to obtain a split skin graft
from an unburned donor site of a burn victim to cover their 3rd degree burns.
17. It is not open and obvious that allografts, or cadaver skin from skin banks may
have to be used to cover a high percent TBS 3rd degree burn.
18. It is not open and obvious that the area under allografts sometimes get infected,
requiring excision, and reapplication.
19. It is not open and obvious that a recovered victim of 3rd degree hot water scald
burns will never sunbathe on the beach again, except for a few minutes.
20. It is not open and obvious what the temperature is in the hot water heater tank
when the thermostat is marked WARM, NORMAL, HOT, and the ordinary consumer will not know
that these vague terms usually mean 120, 140, 160 F respectively.
21. It is not open and obvious to the ordinary consumer what the vague terms of WARM,
HOT mean regarding safe bathing/shower conditions, and the WARM or HOT is what a far North
Eskimo or Laplander gets when the outside temperature gets up to 40 F.
22. It is not open and obvious to the ordinary consumer that water at
"Normal" settings can cause 2nd degree burns to an adult in 2.8 seconds, and to
a young child in 1.5 seconds.
23. It is not open and obvious to the ordinary and prudent member of the community that
the delivered hot water may be layered or stacked causing the hot water temperature to be
as much as 40 degrees F more than expected from a review of the owners manual for the
heater.
24. It is not open and obvious to what extent trickle flow or selected intermediate hot
water draw schedules will induce stacking.
25. It is not open and obvious to the ordinary consumer that when the thermostat has
the temperature marked in decrements on the adjusting knob, the hot water temperature can
be substantially different than the set point.
26. The ordinary, reasonable member of the community is not a learned hand relative to
the expected knowledge of the heater manufacturer, the plumbing engineers, and the
plumbing contractors and therefore cannot be expected to understand or appreciate the
extreme dangers of scalding water.
27. The ordinary, reasonable, prudent member of the community can and should expect an
implied warrant of habitability of a rented or leased dwelling from the owner and leasing
agent that the premises shall be safe, which includes hot water at temperatures that
cannot cause severe scald burns in only a few seconds. This type of warrant is often
mandated by city ordinance.
28. It is not open and obvious to the ordinary consumer in an apartment dwelling that
multiple, simultaneous cold draws by others flushing toilets or using cold water for other
purposes can drastically and suddenly lower the cold water pressure to their shower so
that the comfortable mixed water valve setting can immediately produce dangerous scalding
water.
29. It is not open and obvious to the consumer that these drastic cold water changes in
pressure calls for a pressure balancing valve at the water heater.
30. It is or should be open and obvious to a hot water heater manufacturer that all of
the above conditions often exists, but that the ordinary prudent member of the community
would not understand the nature of these dangerous conditions.
31. It is or should be open and obvious to hotel/motel/apartment managers and owners
and maintenance personnel that the hot water temperature adjusting screw in individual
point of use shower antiscald valves may have to be readjusted after remodeling, etc, and
this is not obvious nor should it have to be a concern to the consumer.
32. It is not open or obvious to the ordinary consumer in an apartment complex when a
point of source tempering valve does not fail safe, but maintenance should periodically
check that valve and replace it if the point of source valve is not a fail safe design.
33. It is not open or obvious to the ordinary consumer in an apartment complex what the
extreme consequences may be if that consumer increases the thermostat setting that is too
readily accessible.
Burns
