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Schipper v. Levitt & Sons

Decided: February 19, 1965.

LAWRENCE J. SCHIPPER, II, A MINOR, BY HIS FATHER AND GUARDIAN AD LITEM, LAWRENCE J. SCHIPPER, AND LAWRENCE J. SCHIPPER IN HIS OWN RIGHT, PLAINTIFFS-APPELLANTS,
v.
LEVITT & SONS, INCORPORATED, A CORPORATION OF THE STATE OF NEW YORK, AND YORK SHIPLEY, INC., A CORPORATION OF THE STATE OF DELAWARE, DEFENDANTS-RESPONDENTS, AND LAWRENCE J. SCHIPPER, II, A MINOR, BY HIS FATHER AND GUARDIAN AD LITEM, LAWRENCE J. SCHIPPER, AND LAWRENCE J. SCHIPPER, IN HIS OWN RIGHT, PLAINTIFFS-APPELLANTS, V. BUILDERS SUPPLY CORPORATION, A CORPORATION OF NEW JERSEY, DEFENDANT, THIRD-PARTY PLAINTIFF, RESPONDENT, V. YORK SHIPLEY, INC., A CORPORATION OF THE STATE OF DELAWARE, THIRD-PARTY DEFENDANT, FOURTH-PARTY PLAINTIFF, RESPONDENT, V. LEVITT & SONS, INCORPORATED, A CORPORATION OF THE STATE OF NEW YORK, FOURTH-PARTY DEFENDANT-RESPONDENT



For affirmance in part and reversal in part -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[44 NJ Page 73] The plaintiffs sued for damages suffered as a result of the severe scalding received by the infant plaintiff

Lawrence J. Schipper, II when he came in contact with excessively hot water drawn from the faucet in the bathroom sink. The trial court dismissed the proceeding at the close of the plaintiffs' case. They appealed to the Appellate Division and we certified before argument there.

The defendant Levitt & Sons, Inc. is a well-known mass developer of homes, specializing in planned communities. Its homes are generally sold on the basis of advertised models constructed in accordance with Levitt's specifications. One of its communities is at Levittown (now known as Willingboro), New Jersey, where it built thousands of homes, including the home at 81 Shawmont Lane purchased in 1958 by the Kreitzers. This home was evidently built for the Kreitzers after they had selected a model, for Mrs. Kreitzer testified that "we watched the complete building of our home as it was going up." The Kreitzers moved in during November 1958 and received a "Homeowner's Guide" from Levitt which contained a message of welcome to Levittown and various informational items. Under the caption "Heating System" it advised that the "system consists of a gas-fired boiler supplying heating coils imbedded in the concrete floor beneath the tile" and that "as heated water is pumped through these heating coils, the coils warm the concrete in which they are imbedded and the entire floor becomes warm." There was a cautionary note against any attempts at "adjustments" of the heating unit and instructions to call Public Service Electric and Gas Company "for emergency service." Under the caption "Hot Water," the Homeowner's Guide had the following to say:

"You will find the hot water in your Levittown home much hotter than that to which you are accustomed. Hot water such as this is desirable for clothes washing as well as other uses.

We have provided at each fixture, mixing type faucets so that you adjust the water temperature to suit. The proper procedure at any faucet is to first open the cold water tap part way, and then turn on the hot water. This avoids wasting hot water and yields properly tempered water for bathing and dishwashing."

Mr. Kreitzer testified that he found the domestic hot water to be really hot and that he was burned on several occasions. He complained to Levitt's representatives but was told that they could not reduce the temperature except through "the installation of a mixing valve" in the heating unit. Mr. Kreitzer also complained to the Public Service representatives but they told him that they could make no significant reduction in the temperature of the water. Mrs. Kreitzer testified that the water "was exceptionally hot coming out of the bathroom faucets." She was burned mildly on several occasions and a house guest was "burned pretty badly" when she "didn't have a chance to warn her." Thereafter Mrs. Kreitzer put a handwritten note in the bathroom reading: "Caution. Water Hot. Turn on cold water first." She did not recall whether the note was in the bathroom when the Kreitzers leased their house to the Schippers.

The plaintiff Mr. Lawrence J. Schipper testified that in July 1960 he leased the house at 81 Shawmont Lane from the Kreitzers for a term of one year. He did not recall that his lessors had mentioned anything about the hot water and he did not read the Homeowner's Guide until after the scalding of his son Lawrence J. Schipper, II. When he and his family moved in on August 13, 1960, he turned on the control switch in the closet which contained the gas-fired heating unit and waited for the gas to "cycle through." He then tried the hot water faucet in the bathroom adjacent to the closet and noticed that the water coming from the tap "gave a sort of spitting noise and seemed to be a mixture of gas and steam." He examined the heating unit to see whether it had any mechanism to control the temperature of the water and found none. He cautioned his wife and children that the water was "extremely hot" and that they would have to be careful until he "could find a means of regulating it." He spoke to the realtor through whom he had negotiated his lease and, on the realtor's recommendation, he decided to call Public Service on Monday morning August 15th when he "next expected their services to be available." He did call Public Service at

about 8:30 on Monday morning and, in response, its representative made a service call later that morning but found the heating unit to be operating in normal fashion and could make no adjustment which would appreciably affect the temperature of the domestic hot water.

During the morning of August 15th and apparently before the Public Service representative had arrived, the scalding of the infant plaintiff (Larry), who was then sixteen months old, had occurred. Mrs. Schipper testified that she was upstairs when she heard Larry crying. She came downstairs, heard the water running, found the hot water faucet in the bathroom sink turned on, and realized that Larry had been scalded. He was taken immediately to the doctor's office and then to the Cherry Hill hospital where he remained for seventy-four days. Thereafter he was hospitalized on three separate occasions and during two of these, skin grafting operations were performed.

In 1961 the plaintiffs filed a complaint against Levitt & Sons, Inc. and York Shipley, Inc., the company which manufactured the heating unit, and another complaint against Builders Supply Corporation, Levitt's wholly owned subsidiary which had purchased the heating unit from York. Thereafter the matters were consolidated and amendments and other pleadings were duly filed. The plaintiffs charged that, in the construction of the Levittown homes, Levitt had directed and ordered the installation of a gas-fired hot water boiler and water distribution system which was so defectively designed and equipped "that it produced without notice or warning scalding hot water at a temperature that was dangerously high for ordinary domestic use" and that it "knew or should have known of the highly dangerous condition created by it, which involved an unreasonable risk of bodily harm to children of immature years and others, who had no means of discovering the condition or realizing the risks." Similarly, the plaintiffs charged that York had manufactured the improperly designed system and that it knew or should have known of the highly dangerous condition created by it which

involved unreasonable risk of harm. The plaintiffs sought damages from Levitt and its wholly owned subsidiary Builders Supply and from York for the injuries sustained by the infant plaintiff as the result of his scalding and also sought consequential damages suffered by his father Lawrence J. Schipper.

In support of their complaints, the plaintiffs introduced expert and other testimony which dealt extensively with the installation and operation of the heating and hot water system. Mr. Witt testified that he was an experienced mechanical engineer, had been employed by Levitt for nine years, and was responsible for the design of the heating and hot water system in the New Jersey Levittown homes as well as in Levittown homes elsewhere. He described the prime component of the system as a boiler manufactured by York to supply both hot water for heating and domestic purposes through the use of an instantaneous hot water coil immersed in the boiler. He recognized that the temperature of the water as it came from the boiler (at 190 degrees Fahrenheit and upward) would be excessively high for domestic use and that since the heating closet in the plaintiffs' home was only six feet away from the bathroom sink, the water coming from the hot water tap on initial draw would be almost at the same temperature as that in the boiler. He acknowledged that York had recommended that a mixing valve be installed at the outside of the boiler to avoid excessively hot water for domestic use and that Levitt had deliberately not followed the recommendation. Instead, Levitt had merely provided bathroom and sink fixtures which supplied hot and cold water through combination spigots and had cautioned purchasers in its Homeowner's Guide that the proper procedure at any faucet was first to open the cold tap part way and then turn on the hot water.

Mr. Snyder testified that he had been in the employ of York for fourteen years and was now the chief design engineer for "residential and Jackson & Church Products," a division of York. He was responsible for the design of York's heating units including those sold to Builders Supply for

installation in Levittown homes in New Jersey and elsewhere. He testified that several thousand units had been furnished for the New Jersey Levittown homes and that seventeen thousand units of similar design had been furnished for the Pennsylvania Levittown homes. He stated that the normal range for hot water which would come in contact with the person was around 140 degrees and he acknowledged that, on initial draw, water drawn from the boiler might be 190 degrees and higher. It was for this reason that his company strongly recommended to Levitt that it install "a mixing valve which would limit the temperature delivery to the faucets at 140 degrees." In fact, York recommended a particular valve known as Taco although "there are other makes on the market that are normally supplied through plumbing supply houses as a standard animal in the plumbing trade."

Mr. Snyder stated that all manufacturers recommend the use of this type of valve which is a marketed item "normally installed by the installer" and "not an inherent piece of the equipment." When asked why he considered the valve to be not inherently part of its heating unit, he testified that it is a normal trade item such as a circulator or thermostat and that it is unusual for an original heating equipment manufacturer to merchandise items of this type. He stressed that the mixing valve is normally applied to the unit at the time of installation, that "the valve itself has sweat fittings that are normally applied with heat and solder" to the exterior of the boiler, and that it "would not be practical in present known designs" to install the mixing valve in the original manufacture of the boiler.

Mr. Snyder stated further that his company buys mixing valves for about $3.60 each, that they probably retail at $9 or $10, and that they are not expensive to install. The plaintiff Lawrence J. Schipper testified that after the scalding of his son, he installed a mixing valve at a total cost of $18 for parts and labor. Mr. Lightner, administrative assistant to the president of York, testified that he had participated in the negotiations for the purchase and sale of the heating units,

that William Levitt of the Levitt organization represented it in the negotiations, and that ultimately the purchase order came from Builders Supply, Levitt's purchasing corporation. He estimated that two or three thousand units were sold for the Levittown homes in New Jersey and sixteen or seventeen thousand units for the Levittown homes in Pennsylvania. He stated that his company recommended the use of a mixing valve but that "Levitt was not interested in buying the mixing valve from us for either Pennsylvania or Jersey" although it had purchased mixing valves for its homes at Levittown, Long Island.

Three engineers who testified as experts for the plaintiffs all agreed that while temperatures ranging from 190 degrees and upward were necessary for house heating purposes, temperatures above 140 degrees for domestic purposes involving contacts with the person would be highly dangerous. They all referred to the mixing valve as one of the recognized devices for reducing the temperature of the domestic hot water to acceptable limits. Mr. Baccini testified that for this type of burner a mixing valve "can be either furnished with the unit or it is made available in a piping harness which is sold with the unit." He acknowledged that the plans set up by Levitt for its New Jersey homes did not call for any mixing valves and that Levitt could decide for itself whether to purchase heating units from any particular manufacturer without also purchasing mixing valves from him. Mr. Lerner testified that mixing valves are made by many companies and are available in plumbing supply houses, and that some manufacturers of tankless heaters such as those furnished by York will include mixing valves "as part of their package boiler" while "other manufacturers will not if they feel they don't know where the unit is going." He also testified that if the unit is to be installed in a home "engineering practice is definitely that a mixing valve must be on." When asked about the combination spigots which Levitt had installed, he testified that they were not "a substitute for a mixing valve in the line itself" but were simply used as a means of manually controlling temperature

below the 140 degree acceptable standard. Professor Edgar testified that he would not accept the combination spigot as a substitute for the mixing valve and that he would consider it "highly unsafe" to have a unit which supplied hot water to the tap at a temperature ranging from 190 degrees upward.

After the plaintiffs had completed their presentation, the defendants moved for dismissal and their motions were granted. Insofar as Levitt was concerned, the trial court considered itself bound by the holdings in Sarnicandro v. Lake Developers, Inc., 55 N.J. Super. 475 (App. Div. 1959), and Levy v. C. Young Construction Co., Inc., 46 N.J. Super. 293 (App. Div. 1957), aff'd on other grounds 26 N.J. 330 (1958). In Sarnicandro, the court held that a builder vendor was not liable for injuries suffered by a lessee of the vendee when she fell on steps which had been improperly constructed by the builder vendor. In Levy, a divided Appellate Division held that a builder vendor was not liable to the purchaser for damages resulting from latent defects "in the absence of express warranties in the deed or fraud or concealment." In dealing with Builders Supply, the trial court described it as an alter ego of Levitt and said that it could find no evidence that it had violated any ...


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