Carroll v. Faust, Nos. 2-98-1501 & 2-99-0119, cons.

2nd District, 25 February 2000

JUSTICE GALASSO delivered the opinion of the court:

The plaintiff, Robert Carroll, appeals from orders of the circuit court of Winnebago County dismissing his third and fourthamended complaints for personal injuries against the defendants, Jack R. Faust, Ervin Muenster, Valera Muenster, andMenzis Venko, doing business as Travlur Motel & Lounge, also known as Rustic Motel (collectively Faust), AmericanWater Heater Company (American), and Emerson Electric Company (Emerson).

The following facts are taken from the third and fourth amended complaints. On June 23, 1996, the plaintiff was a guest atFaust's motel. At approximately 1 a.m., the plaintiff drew water from the bathtub faucet into the bathtub to soak his feet andankles. Due to the 170 degree temperature of the water from the faucet, the plaintiff sustained severe injuries to his feet andankles requiring the amputation of all of the toes on both feet and the amputation of his lower right leg.

In a series of complaints, the plaintiff sued Faust, the owner of the motel, under theories of negligence and res ipsa loquitur(counts I through II); US/Craftsmaster Water Heater Company, a manufacturer of hot water heaters, under theories ofnegligence and product liability (counts III through IV); American Water Heater Company (misidentified as Southcorp,USA, Inc.), a manufacturer of water heaters, under theories of negligence and product liability (counts V through VI);American Water Heater Group, a manufacturer of water heaters, under theories of negligence and product liability (countsVII through VIII); Emerson Electric Company, a manufacturer of water heater thermostats, under theories of negligenceand product liability (counts IX through X); and White-Rodgers, a manufacturer of water heater thermostats, under theoriesof negligence and product liability (counts IX through XII).

During the proceedings below, the parties agreed that US/Craftsmaster Company, Southcorp USA, Inc., American WaterHeater Company, and American Water Heater Group would be collectively referred to as American Water HeaterCompany. We shall continue to refer to them collectively as "American." In addition, White-Rodgers is a division ofEmerson Electric Company, and, therefore, we shall refer to them collectively as "Emerson."

On August 27, 1998, the trial court dismissed counts I and II of the third amended complaint with prejudice pursuant toFaust's motion to dismiss under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1996)). OnNovember 9, 1998, the trial court made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that therewas no just reason to delay the enforcement or appeal of its August 27, 1998, order. On November 18, 1998, the plaintifffiled his notice of appeal from the dismissal of counts I and II. On January 21, 1999, the trial court dismissed the remainingcounts III through XII of the fourth amended complaint with prejudice. The plaintiff filed his notice of appeal from thatorder on February 1, 1999. On February 16, 1999, this court consolidated the two appeals for review.

MOTION TO STRIKE PORTIONS OF THE PLAINTIFF'S BRIEF

Faust filed a motion to strike certain portions of the plaintiff's brief on the basis that the plaintiff's brief and appendixcontain references to and copies of unsworn exhibits that the plaintiff is using to support his position on appeal. Theplaintiff responded that these exhibits are articles pertaining to the allegations contained in the third amended complaint andare necessarily involved in the duty-risk analysis. Moreover, the American National Standards Institute (ANSI) standardswere specifically pleaded in the third amended complaint. We ordered the motion and response be taken with the case.

It is well established that evidentiary matters outside the pleadings may not be considered in ruling on a section 2--615motion. Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991). Moreover, attachments to briefs not included in therecord are not properly before the reviewing court and cannot be used to supplement the record. Zimmer v. Melendez, 222Ill. App. 3d 390, 394-95 (1991).

With the exception of the allegation as to the ANSI standards, none of the material complained of was part of the recordbelow, and, therefore, we will not consider either those exhibits contained in the appendix or the references to those exhibitscontained in the plaintiff's brief. See Zimmer, 222 Ill. App. 3d at 395.

STANDARD OF REVIEW

We review the granting of a motion to dismiss pursuant to section 2--615 de novo. See T&S Signs, Inc. v. Village ofWadsworth, 261 Ill. App. 3d 1080, 1084 (1994).

When the legal sufficiency of a complaint is challenged by a section 2--615 motion to dismiss, all well-pleaded factsalleged in the complaint are taken as true. T&S Signs, 261 Ill. App. 3d at 1083. On review of a section 2--615 dismissal, thereviewing court must determine whether the allegations of the complaint, when interpreted in a light most favorable to theplaintiff, sufficiently set forth a cause of action on which relief may be granted. T&S Signs, 261 Ill. App. 3d at 1083. Themotion should be granted only if the plaintiff can prove no set of facts to support the cause of action asserted. T&S Signs,261 Ill. App. 3d at 1083-84. This process does not require the reviewing court to weigh findings of fact or determinecredibility, and, as such, it is not required to defer to the trial court's judgment. 261 Ill. App. 3d at 1084.

FAUST

1. Negligence.

In his third amended complaint, the plaintiff alleged that Faust was negligent for the following: permitting the thermostat ofthe hot water heater to be turned to an unsafe level in violation of the warnings in the owner's manual and the ANSIstandards; failing to inspect the thermostat of the hot water heater to insure that the water coming from the bathtub faucetwas at 120 degrees, the maximum required temperature, rather than the 170 degrees at which it was actually set; failing toreduce the temperature setting from 170 degrees to 120 degrees; failing to warn his guests that the temperature of the waterfrom the bathtub faucet was 170 degrees, which could cause instantaneous severe burns; and failing to read or follow thewater heater manual instructions to set the thermostat at 120 degrees instead of the approximately 170 degrees at which thewater temperature was set. The plaintiff further alleged that as a result of these acts of negligence he sustained severepersonal injuries.

In order to state a cause of action for negligence, the plaintiff's complaint must establish that the defendant owed theplaintiff a duty, that the defendant breached that duty, and that the plaintiff's injury was proximately caused by the breach.Doe v. Calumet City, 161 Ill. 2d 374, 384 (1994). The existence of a duty is a question of law for the court to decide anddepends upon whether the parties stood in such a relationship to one another that the law imposed an obligation on thedefendant to act reasonably for the protection of the plaintiff. St. Paul Insurance Co. v. Estate of Venute, 275 Ill. App. 3d432, 436 (1995). In considering whether a duty exists, a court must weigh the foreseeability that the defendant's conductwill result in injury to another and the likelihood of an injury occurring against the burden to the defendant of imposing aduty and the consequences of imposing this burden. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991). The existence of a legalduty is not to be bottomed on the fact of foreseeability alone but also on whether the harm was reasonably foreseeable.National Bank v. Westinghouse Electric Corp., 235 Ill. App. 3d 697, 704 (1992).

The fact that hot water within a range of temperatures can scald or burn skin is open and obvious. National Bank, 235 Ill.App. 3d at 708. However, as our supreme court noted in Ward v. K mart Corp. 136 Ill. 2d 132, 150 (1990), the manifesttrend of the courts is away from the traditional rule of absolving, ipso facto, owners and occupiers of land from liabilityresulting from known or obvious conditions. Instead, liability will not be imposed where the danger is known or obviousunless, under the circumstances present, the harm should be anticipated. Ward, 136 Ill. 2d at 149-51.

The foreseeability of harm, in connection with a duty, is not a magical concept that ignores common sense. Estate ofVenute, 275 Ill. App. 3d at 436. Foreseeability includes whatever is likely enough to occur that a reasonably thoughtfulperson would take it into account in guiding his or her practical conduct. Estate of Venute, 275 Ill. App. 3d at 436.

The plaintiff maintains that Faust was negligent because he failed to determine that the water heater thermostat was set at ahigher temperature than the temperature set forth in the industry standards and then failed either to reduce the temperaturesetting or to warn the plaintiff that the temperature was set higher than it should have been. Faust responds that it isreasonable to assume that a person would not use the hot water untempered by cold water or would remove a body partfrom water that was too hot. See National Bank, 235 Ill. App. 3d at 706.

Applying the principles set forth above, we conclude that the likelihood of injury resulting from Faust's actions, as pleadedin the plaintiff's third amended complaint, was foreseeable. The temperature of the hot water was, allegedly, set at 170degrees, which causes instantaneous injuries. There is nothing to distinguish water heated to 120 degrees, the recommendedtemperature, from water heated to 170 degrees. The plaintiff, drawing water for a bath, would have no reason to believe thatwater coming out of a bathtub faucet would be heated to such a degree as to cause instantaneous injury, until he wasactually injured. Faust failed to inspect the water heater to determine that it was set at a safe temperature for bathingpurposes, to adjust the temperature, or to warn the guests of the motel, such as the plaintiff, that the water coming out of thebathtub faucet was heated to the point that it could cause instantaneous injury. A reasonable motel owner would haveforeseen that a motel guest, such as the plaintiff, could sustain injuries as a result of such conduct.

Our decision in this case is not at odds with the prior decisions in National Bank and Gengler v. Herrington, 219 Ill. App.3d 6 (1991), both of which were relied on by Faust in this case. In both of those cases, the defendants prevailed at thesummary judgment stage of the proceedings. In National Bank, the 14-month-old victim was scalded when she climbed intothe bathroom sink and turned on the hot water. The thermostat on the water heater was preset at 150 degrees. In upholdingthe granting of the summary judgment to the manufacturer, the reviewing court had the benefit of expert opinion evidence,given in support of the motion for summary judgment, in which the expert opined as to the industry custom and practices.National Bank of Bloomington, 235 Ill. App. 3d at 700. Moreover, in that case, the issue concerned whether the water heaterwas preset at too high a temperature whereas here the issue is whether Faust breached his duty to the plaintiff by failing todiscover and to warn the plaintiff that the water, at 170 degrees, could injure him instantaneously.

In Gengler, the three-year-old victim was scalded when he turned on the hot water in the bathroom sink. In upholding thesummary judgment for the landlord, this court noted that there was no evidence that the landlord was aware of a defect inthe hot water system, and there was no expert testimony in the record. Gengler, 219 Ill. App. 3d at 12. However, in thepresent case, the plaintiff has alleged that the water heater was set at a temperature that could cause instantaneous injury andthat Faust was negligent for failing to discover that fact and to warn the plaintiff.

Where the burden of protecting against injury is slight, even a remote danger of injury will render the failure to exercise duecare unreasonable. Estate of Venute, 275 Ill. App. 3d at 437. While the likelihood of injury might be small in this case, i.e.,most persons would pretest the bath water temperature, the gravity of the injury was considerable, i.e., instantaneous severeburns, and the burden of guarding against it was slight, i.e., inspection. See Estate of Venute, 275 Ill. App. 3d at 437. Inbalancing the foreseeability and likelihood of injury against the consequences of imposing this burden, we conclude thatFaust owed a duty of care to the plaintiff.

We hold that Faust had a duty to inspect the motel's water heater to determine whether the water temperature was set at asafe level and to either reduce the temperature or to warn its guests, such as plaintiff, that the water temperature was at alevel at which instantaneous injury could occur. Therefore, the trial court erred in dismissing count I of the plaintiff's thirdamended complaint.

2. Res Ipsa Loquitur

The doctrine of res ipsa loquitur is not a separate legal theory but, rather, is a type of circumstantial evidence that permits atrier of fact to infer negligence when the precise cause of the injury is not known by the plaintiff. Wilson v. Michel, 224 Ill.App. 3d 380, 386 (1991). Initially, a trial court must decide whether, as a matter of law, the res ipsa loquitur doctrine isapplicable, and it will not apply unless a duty of care is owed to the plaintiff. Wilson, 224 Ill. App. 3d at 386.

Once a duty of care exists, and we have determined in this case that it does, the trial court must also determine, as a matterof law, whether the plaintiff established the necessary elements of res ipsa loquitur, namely, that (1) the occurrence doesnot usually happen in the absence of negligence, (2) the defendant was in exclusive control of the instrumentality thatcaused the injury, and (3) circumstances indicated that the injury was not due to any voluntary act or neglect on the part ofthe plaintiff. Wilson v. Michel, 224 Ill. App. 3d 380, 385-86 (1991). A plaintiff bears the burden of proving the elements ofres ipsa loquitur, but proof of the elements need not be absolute or conclusive. Wilson, 224 Ill. App. 3d at 386.

In the present case, the plaintiff alleged that, at all relevant times, he was exercising ordinary care for his own safety. Weare of the opinion that the plaintiff's allegation that he was injured by water heated to 170 degrees coming out of a bathtubfaucet, given the danger posed by water heated to such a temperature, is sufficient to establish that such an injury would nothave occurred in the absence of negligence.

However, we are further of the opinion that the plaintiff has failed to establish that Faust had exclusive control of theinstrumentality causing the injury. In Gengler, this court discussed the decision in King v. Wiesel, 67 R.I. 182, 21 A.2d 262(1941), and noted that, in that case, the court had held the doctrine of res ipsa loquitur inapplicable since the mixing of thehot and cold water was not exclusively in the control of the defendants and required the intervention of the plaintiff inoperating the faucets. Gengler, 219 Ill. App. 3d at 12.

In this case, the plaintiff alleged in his third amended complaint that he drew tap water from the faucet that resulted in hisinjury. While the plaintiff alleged that the water heater was under the exclusive control of Faust, the plaintiff was injured bythe hot water itself. In order for the plaintiff to be injured in this case, he himself had to turn on the bathtub faucet.Therefore, the allegations in the complaint fail to establish that Faust had exclusive control over the instrumentality thatcaused the injury.

We conclude that the plaintiff failed to state a cause of action against Faust under the doctrine of res ipsa loquitur, and,therefore, the trial court did not err in dismissing count II of the third amended complaint.

AMERICAN AND EMERSON

American is the manufacturer of the water heater in this case, and Emerson is the manufacturer of the thermostat, acomponent part of the water heater. Because the allegations against these defendants are virtually identical and the analysisof their respective liability would be the same, we will discuss them together. We emphasize that, at this stage of thepleadings, we are required to take all well-pleaded facts alleged in the complaint as true and that the allegations in thecomplaint must be interpreted in the light most favorable to the plaintiff. T&S Signs, 261 Ill. App. 3d at 1083.

1. Negligence

In the pertinent counts of his fourth amended complaint, the plaintiff alleged that American and Emerson were negligent inthat they: