This was an action involving a then 34 year-old plaintiff, who was the managing chef for a company providing food services to the defendant private school, in which the plaintiff contended that after he arrived at approximately 5:30 a.m. and turned on a cooking steamer manufactured by the defendant and properly permitted it to warm up for approximately 20 minutes, a large amount of steam spewed out of the unit, scalding him on the foot and ankle, causing second and third degree burns and the onset of RSD. The plaintiff contended that the defendant private school negligently failed to properly maintain the boiler over an expended period of time, resulting in the excessive build-up of “scale” that prevented the water from the previous day to properly drain. The plaintiff also contended that the boiler was defectively designed and should have incorporated a system that would channel excess water out of the boiler when the water level probe sensed a dangerous build-up. The plaintiff maintained that because of the RSD, he required some 24 epidural injections performed under anesthesia which only provided temporary relief. The plaintiff then underwent the implantation of a spinal cord stimulator and the plaintiff contended that he will nonetheless suffer extensive pain permanently despite some relief afforded by the stimulator.
The equipment in question consisted a boiler that was situated under two cooking cavities which resembled microwave ovens. The plaintiff established that the defendant school had the duty to periodically clean out the boilers. The plaintiff maintained that as the water produced steam, minerals in the water would build up and that such “scale” would ultimately clog the boiler’s drain. The plaintiff related that as was his custom, he arrived at work before the other workers and when he arrived at approximately 5:30 a.m., he turned on the boiler to warm it up. The plaintiff related that he then went about other duties and that approximately 20 minutes later, approximately five gallons of hot steam and water spewed from the device, scalding his foot and ankle. The plaintiff related that he crawled a short distance, placed his foot in a bucket of ice and that a short time later, another worker arrived and brought him to the emergency room.
The plaintiff’s expert engineer contended that the boiler must be maintained according to a prescribed schedule to avoid the dangerous build-up scale. The expert related that several years earlier, the device malfunctioned and that it was determined at that time that the malfunction was caused by a build-up of scale. The plaintiff also established that because of more operational difficulties defendant private school had ordered replacement parts which were available be picked up several weeks earlier. The plaintiff contended that the defendant failed to do so and that this failure led to the accident on the day in question. The defendant school denied that build up of scale in the boilers situated under the cooking cavities was the cause of the incident and maintained that it was occasioned by the negligent failure of the co-employees to properly clean the cavities themselves the evening before. The defendant school established that the food services company was responsible for cleaning these upper cavities. The plaintiff countered that when the co-worker arrived approximately 20 minutes after the accident, the co-worker’s husband who took him to the hospital, observed water spilling down the front of the boiler. The plaintiff contended that if the defendant school’s theory was accurate, there would not have been a sufficient amount of water to continue trickling for such an extended period and that the defendant’s position should be rejected.
The plaintiff also contended that the boiler was defectively designed and that the co-defendant manufacturer should have incorporated an additional manner of channeling build-up through a piping system to prevent such an incident occurring upon the foreseeable build-up of pressure.
The defendant manufacturer contended that the boiler was properly designed and complied with all standards. The plaintiff countered that it was highly foreseeable that a user such as a private school would not provide the necessary maintenance and that the manufacturer should have provided for such an eventuality.
The plaintiff sustained second and third degree burns to the foot and ankle for which he received out-patient treatment after an initial emergency room visit. The plaintiff returned to work eleven days after the accident. The plaintiff maintained that over the course of the next few months, he developed severe burning pain and color and temperature changes as well as an intermittent loss of hair in the affected areas. The plaintiff’s physicians would relate that the plaintiff underwent some 24 epidural injections that were administered under anesthesia, but that the injections provided temporary relief only.
The evidence disclosed that the plaintiff then underwent surgery in which a spinal cord stimulator was inserted. The plaintiff related that prior to this surgery, he would characterize his pain as an 8 out of 10 and that it has now improved to a 4 out of 10. The plaintiff contended that this level of pain nonetheless is severe and that the jury should consider that he will continue to suffer it for the remainder of a lengthy life expectancy.
The defendant denied that the plaintiff suffered RSD and the defendant’s physicians maintained that the objective signs claimed by the plaintiff were not observable during their exams. The plaintiff countered that such signs are often intermittent in nature and that in view of the findings of some nine plaintiff treating physicians who observed such signs, the defendant’s position should be rejected. The plaintiff also contended that he will be permanently precluded from working in a physical capacity and will be relegated to much more sedentary work, suffering a future diminution in earning capacity. The plaintiff settled with the manufacturer some months prior to trial for $600,000.
The evidence disclosed that approximately eight months after the accident and before any litigation was brought, the defendant school had disposed of the boiler in question. The plaintiff argued that such disposal constituted spoliation of evidence, which rendered it much more difficult to reconstruct the cause of the accident and because of such a factor, the defendant school should not be permitted to pursue its cross-claim against the settling manufacturer, which could entitle it to a credit because of the prior settlement. The school denied that the plaintiff’s position should be accepted, pointed out that it replaced the boiler before any litigation was brought and denied that it should be precluded. The plaintiff countered that the school was aware that the plaintiff was out of work on disability because of the accident and the school had retained counsel and that the school was clearly on notice that litigation was probable and should have retained the boiler.
The case against the private school settled before any judicial ruling on whether the school would be precluded from pursuing a cross-claim against the manufacturer for $1,800,000, yielding a total recovery of $2,400,000.
REFERENCE:
A.C. vs. Pennington School, et al. Docket No.: MON-L-1005-98; Judge Robert Feldman, March 2001.
Attorney for plaintiff: Charles A. Cerussi of Red Bank, NJ and Manhattan.
COMMENTARY:
The plaintiff initially settled with the manufacturer for $600,000 some time following the close of discovery and the major claim against the manufacturer was that it failed to provide an alternative method of discharging the boiler in the foreseeable event that the purchaser, such as a private school, failed to follow the required maintenance schedule. The plaintiff’s primary focus in the case was the failure of the defendant school to properly maintain the boiler to prevent the build-up of scale that led to the incident.
The evidence disclosed that the defendant school disposed of the boiler some eight months after the accident and prior to the bringing of any litigation. It is interesting to note that the plaintiff moved in limine for an order precluding the school from assessing liability against the settling defendant and, therefore, obtain a credit. In this regard, the school had argued that in view of the fact that the boiler was disposed of eight months after the accident before any litigation was brought and that the plaintiff’s contentions should clearly be rejected. The plaintiff countered that the school was aware of the accident and that the plaintiff’s contentions should clearly be rejected. The plaintiff countered that the school was aware of the accident and that the plaintiff, who was not its employee, was out on disability and should have known that litigation was possible. Furthermore, the plaintiff argued that the ability to reconstruct the accident was hampered by the absence of the boiler and that since a plaintiff bringing a products liability action in which the product in question was disposed would be subject to such sanctions upon a finding of spoliation of the evidence, the school should be subject to the same preclusion. It should be noted that the case settled before any judicial resolution on this issue.
Regarding damages, the plaintiff, who returned to work eleven days after suffering second and third degree burns on his foot and ankle, maintained that he developed severe RSD and would have argued that the jury should consider that he will suffer severe pain and difficulties for a lengthy life expectancy. In this regard, the defense had questioned the existence of the condition, contending that the signs such as color and temperature changes and hair loss discussed as objective signs by some nine treating physicians were not observed by the seven physicians examining the plaintiff on behalf of the defendants. The physicians testifying for the plaintiff would have emphasized that such signs are often intermittent in nature and that in view of this factor and the evidence of some 24 epidural injections followed by the surgical implantation of a spinal cord stimulator, it was abundantly clear that the initial burn injuries had, in fact, developed into the debilitating RSD condition.
