UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-60539

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MELODY WILLIAMS, Individually and as Next Friend of 

Sherman Marion Williams, ET AL.,

Plaintiffs-Appellants,

VERSUS

BRIGGS COMPANY, ET AL.,

Defendants,

STANDARD ENTERPRISES and THERM-O-DISC, INC.,

 Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Mississippi

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August 21, 1995

Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Melody Williams, et al., appeal from a judgment as a matter of

law. We AFFIRM.

I.

On May 23, 1991, Summer Jewel Williams, Melody Williams' 11-

month old daughter, was severely burned by water in a bathtub in

Melody Williams' apartment in Vicksburg, Mississippi. While Melody

Williams was in the kitchen, her three-year-old son began to fill

the bathtub with hot water. Melody Williams heard the running

water, and told her son to turn it off. Immediately thereafter,
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and before her son did so, Melody Williams heard a splash, followed

by screams from her daughter. Melody Williams found her daughter

in the bathtub in at least several inches of hot water. Summer

Jewel Williams' treating physician estimated that she had sustained

partial thickness (second degree) burns on 43% of her body. She

died several days later from an infection resulting from the burns.

Suit was filed against, among others, Therm-O-Disc, Inc., the

manufacturer of the thermostat on the water heater, and Standard

Enterprises, the manager of the apartment building; trial was held

against only those two defendants. On their motion for judgment as

a matter of law at the close of Williams' case, the district court

found that Williams had failed to offer sufficient proof on any of

her theories of recovery, including strict product liability and

negligence, and therefore granted the motion. 

II. 

In this diversity action, we must, of course, apply

Mississippi law. Subsumed within the challenge to the judgment as

a matter of law are whether the thermostat manufactured by Therm-ODisc was defectively designed, evidentiary rulings by the district

court, and the proper rule of decision under Mississippi law for a

landlord's liability for a defect on its premises. Needless to

say, we freely review a judgment as a matter of law, and must view

the evidence in the light most favorable to the nonmoving party.

E.g., Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969).
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A.
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For strict product liability, Mississippi requires the

plaintiff, inter alia, to demonstrate that the product was "in a

defective condition unreasonably dangerous to the user or

consumer". Sperry-New Holland v. Prestage, 617 So. 2d 248, 253

(Miss. 1993) (emphasis in original) (quoting Restatement (Second)

of Torts § 402A). And, for determining whether a product is

unreasonably dangerous, Mississippi has made it clear recently that

it applies a risk-utility analysis. Id. Under that analysis, "a

product is ‘unreasonably dangerous' if a reasonable person would

conclude that the danger-in-fact, whether foreseeable or not,

outweighs the utility of the product." Id. at 254. Mississippi

law further advises:

In balancing a product's utility against the

risk of injury it creates, a trial court may find

it helpful to refer to the seven factors enumerated

in Professor John Wade's article, On the Nature of

Strict Tort Liability for Products, 44 Miss. L.J.

825. The factors are:

(1) The usefulness and desirability of the

product - its utility to the user and to the

public as a whole.

(2) The safety aspects of the product - the

likelihood that it will cause injury, and the

probable seriousness of the injury.

(3) The availability of a substitute product

which would meet the same need and not be as

unsafe.

(4) The manufacturer's ability to eliminate

the unsafe character of the product without

impairing its usefulness or making it too

expensive to maintain its utility.

(5) The user's ability to avoid danger by the

exercise of care in the use of the product.
1 Mandell maintained that household water should not exceed 130

degrees.

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(6) The user's anticipated awareness of the

dangers inherent in the product and their

avoidability, because of general public

knowledge of the obvious condition of the

product, or of the existence of suitable

warnings or instructions.

(7) The feasibility, on the part of the

manufacturer, of spreading the loss by setting

the price of the product or carrying liability

insurance.

Id. at 837-838.

Id. at 256 n.3. 

The only strict product liability claim urged here is that the

water heater thermostat, manufactured in 1973, was defectively

designed, in that its upper setting, 170 degrees, is too high for

residential use. Against the above risk-utility backdrop, Williams

states that a corollary to her claim "is whether there is any

utility whatever to a design which would allow a water heater to

heat residential hot water to 170" degrees. Leonard Mandell,

Williams' expert in the fields of mechanical engineering,

thermodynamics, and heat transfer, testified that he knew of no

household use for 170 degree water; in his opinion, a thermostat

capable of that setting is unreasonably dangerous.1 

The district court's duty, as well as ours, is not to

determine whether there is any evidence supporting Williams' claim,

but whether there is sufficient evidence to support a verdict in

her favor. See Fed. R. Civ. P. 50(a)(1); Boeing Co., 411 F.2d at

374-75. Williams asserts that Mandell's testimony was sufficient
2 Summer Jewel Williams received partial thickness (second

degree) burns from, by Mandell's estimation, four to six seconds of

exposure to the water. (Mandell originally estimated six to ten

seconds.) However, according to charts which Mandell recognized as

respected authority, at only 140 degrees adult skin will receive

full thickness (third degree) burns in four to six seconds. Given

that Summer Jewel Williams received second, not third, degree

burns, and Mandell's admission that a child's skin would burn

faster than an adult's, there is a strong indication that the water

was less than 140 degrees. A temperature of 140 degrees is

consistent with the opinion of Summer Jewel Williams' treating

physician. 

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to warrant submission of the case to the jury. As discussed below,

we agree with the district court that it was not.

To begin with, any discussion regarding the utility of 170

degree water is largely irrelevant in this case. According to

Mandell's highest estimation, the water in the bathtub at the time

of the accident was 155 degrees, and was perhaps as low as 145

degrees. Other evidence suggests the water was less than 140

degrees.2 As such, the focus of the case narrows, and our

question is not the utility, vel non, of 170 degree water, but of

140-155 degree water.

On this utility question, Mandell acknowledged that widelyaccepted industry standards called for 140 degree water in

residential dishwashers and washing machines. He also noted "a

very excellent reference book" that requires temperatures as high

as 160 degrees for certain household dishwashing needs. Another of

Williams' exhibits notes that manufacturers of washing machines

have recommended 165 degree water. 

Another of Williams' experts, Dr. Richard Forbes, noted an

additional benefit of Therm-O-Disc's thermostat: by permitting the
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water heater to produce water that is hotter than needed, that

water can be combined with cold water at the faucet to produce more

water of an appropriate temperature. Dr. Forbes suggested that

this was an important function, given the limited capacity of most

residential water heaters. 

This common sense application may be one reason why industry

safety standards in 1973 (when the thermostat was manufactured)

permitted thermostats with settings of 170 degrees. Although not

conclusive, Therm-O-Disc's compliance with industry standards

certainly weighs in our analysis. See William Cooper & Nephews,

Inc. v. Pevey, 317 So. 2d 406, 409-10 (Miss. 1975) (Reversing a

jury verdict for plaintiff when, among other things, defendant's

product was "within the range of United States Department of

Agriculture regulations"). In this regard, however, Mandell was of

the opinion that all water heater thermostats were defective. 

Finally, Mandell and Dr. Forbes recognized that there is

always temperature loss between the water heater and the faucet.

Mandell testified that the heat loss in this case from the water

heater to the bathtub would be "[i]n the order of five degrees".

The implication is unmistakable: a higher thermostat setting is

necessary to compensate for heat loss, among other things, between

the water heater and the faucet. (Obviously, other factors, such

as length of time of the water in the bathtub, have a bearing on

heat loss. Although the thermostat was set for 170 degrees,

Mandell estimated that the water temperature in the bathtub was no

greater than 155 degrees, a drop of at least ten degrees more than
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the estimated five degree loss between the water heater and

faucet.)

Against the considerable utility of Therm-O-Disc's thermostat,

we must also examine the risk of injury associated with it. As

noted by the Mississippi Supreme Court, "[i]n balancing the utility

of the product against the risk it creates, an ordinary person's

ability to avoid the danger by exercising care is also weighed."

Prestage, 617 So. 2d at 256. No reasonable jury could disagree

that an "ordinary person" is capable of avoiding the danger

presented by Therm-O-Disc's thermostat. Williams essentially

agreed. She testified that she always turned the hot and cold

water on together when filling the bathtub. Perhaps, as a result,

she had never before complained that the water in her apartment was

too hot. 

This points up another means by which the consumer may protect

herself: the thermostat was adjustable. Therm-O-Disc's design

allowed for an adjustment of temperature as the consumer saw fit.

In this connection, notwithstanding Mandell's testimony that an

ordinary person has no conception of how hot water of a given

temperature is, we think an ordinary person is fully aware of when

water is too hot for his liking, and can protect himself

accordingly.

Obviously, Williams' 11-month old daughter was incapable of

exercising care for her own safety. But, it goes without saying

that manufacturers cannot make an absolutely safe product,

especially for 11-month old children. See Prestage, 617 So. 2d at
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256 (noting that the risk-utility analysis "does not create a duty

on the manufacturer to create a completely safe product"). 

Indeed, herein lies the balancing mandated by the risk-utility

analysis. In that balance, the fact is that households require hot

water, often very hot water, for various uses. Williams' water

heater produced water temperatures, at the faucet, in the range of

temperatures suggested for some household applications. Under

these circumstances, upon application of the risk-utility factors

suggested by the Mississippi Supreme Court, we hold that no

reasonable jury could conclude that the design of the Therm-O-Disc

thermostat was unreasonably dangerous. 

B.

Two evidence claims are presented. We address them, before

turning to the substantive (negligence) claim against Standard

Enterprises, the apartment manager.

1.

Williams challenges the district court's refusal to allow

certain evidence regarding an alleged malfunction of the water

heater and thermostat. We review only for an abuse of discretion.

E.g, Esposito v. Davis, 47 F.3d 164, 168 (5th Cir. 1995); Shipp v.

General Motors Corp., 750 F.2d 418, 427 (5th Cir. 1985).

More than two years after the accident, Dr. Forbes conducted

a test with the water heater from the Williams' apartment which,

according to Dr. Forbes, revealed a malfunction of the lower

thermostat, causing the water to overheat. The district court

refused to admit this evidence, on the basis that Williams did not
3 Moreover, Forbes' test sought to demonstrate that the water

heater malfunctioned to produce water of nearly 200 degrees. This

appears most inconsistent with the evidence of the conditions in

the bathtub at the time of the accident; the water was at most 155

degrees. Even taking into account the heat loss from water heater

to bathtub, it would not seem that 200-degree water at the water

heater would have cooled to 155 degrees in the bathtub, in light of

the fact that the water had apparently not been running for a long

period, was still running at the time of the accident, and was

being accumulated in the bathtub (apparently, toys at the drain

were blocking it), and, therefore, had not been allowed to cool

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sustain her burden of demonstrating that, at the time of the test,

the water heater was in substantially the same condition as at the

time of the accident. See Barnes v. General Motors Corp., 547 F.2d

275, 277 (5th Cir. 1977) (requiring tests to be conducted under

"substantially similar" conditions to those at the time of the

accident; burden of proof on party seeking to introduce evidence);

United States v. Gaskell, 985 F.2d 1056, 1060 (11th Cir. 1993). 

The record supports this ruling. Various repairs were made to

the water heater between the accident and the test. Moreover,

there appears to have been at least some confusion as to the exact

nature of those repairs. And, needless to say, the passage of two

years certainly contributed to the district court's concern over

the reliability of the test. Even Dr. Forbes was unable to provide

any assurance to the district court that the conditions for his

test were substantially similar to those at the time of the

accident. 

We need not linger long over the parties' debate about the

precise significance of the repairs to the water heater, or the

two-years' use between accident and testing. These matters are

left to the sound discretion of the district court.3 Shipp, 750
significantly. 

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F.2d at 427; Barnes, 547 F.2d at 277. That discretion was not

abused. 

2.

At trial, Williams claimed that, if Dr. Forbes' test evidence

was not admitted, she was entitled to a spoliation of evidence

inference against Standard Enterprises, the apartment manager, for

its failure to preserve the condition of the water heater. The

district court denied the claim, finding, inter alia, that

Williams, not Standard Enterprises, was largely to blame for the

condition of the water heater. 

Even assuming that the district court was Erie-bound to apply

Mississippi law on this point, we find no reversible error.

Williams cites two Mississippi cases, Delaughter v. Lawrence County

Hosp., 601 So. 2d 818 (Miss. 1992) and Bott v. Wood, 56 Miss. 136

(1878), to support her spoliation claim. Although both support the

general proposition that spoliation occurs when a party fails to

fulfill a duty to preserve evidence, neither has any bearing in

this instance. Unlike in Delaughter and Bott, the evidence in

issue, the water heater, was not destroyed or lost. See

Delaughter, 601 So. 2d at 821 (defendant hospital lost plaintiff's

medical records); Bott, 56 Miss. at 136-37 (intentionally destroyed

document). Furthermore, Williams offered no evidence to suggest

that Standard Enterprise did anything to alter the condition of the

water heater, other than allow it to remain in the apartment and

continue in operation. And, as the district court noted, at any
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time following the accident, Williams could have taken steps to

secure the water heater. 

C.

Williams' claim against her apartment manager (landlord),

Standard Enterprises, was for negligence -- its failure to warn of,

or correct, the alleged defective condition of the water heater.

Williams contends that the district court applied the wrong rule of

decision in granting judgment as a matter of law in favor of

Standard Enterprises. In light of our having rejected the claim

that the water heater was defective because the water temperature

was too high, and our having upheld the evidentiary rulings

(including on the spoliation claim) bearing on the alleged

defective condition of the water heater, it is most questionable

whether a negligence claim remains against the landlord. In any

event, we reject it as well.

The district court ruled:

In Mississippi a landlord's breach of his covenant

to generally repair the rented premises or its

contents does not render him liable for personal

injuries to the tenant ... unless it appears that

at the time of the lease that this premises

contained, to the landlord's knowledge, some

dangerous hidden defect or defects unknown to or

concealed from the tenant and which the tenant

could not have discovered by a voluntary

inspection. 

Finding insufficient evidence that the accident resulted from a

defect known by Standard Enterprises, the district court granted

judgment as a matter of law. 

Williams insists that, in 1991, in O'Cain v. Harvey Freeman &

Sons, 603 So. 2d 824 (Miss. 1991) (en banc), the Mississippi
4 The O'Cain concurrence concludes:

I advocate that the bare minimum standard for an

implied warranty of habitability should require a

landlord to provide reasonably safe premises at the

inception of a lease, and to exercise reasonable

care to repair dangerous defective conditions upon

notice of their existence by the tenant, unless

expressly waived by the tenant.

O'Cain v. Harvey Freeman & Sons, 603 So. 2d 824, 833 (Miss. 1991).

5 Williams notes that a majority joined the concurring opinion.

This is indeed an anomaly; but, when faced with inconsistent

holdings between the "opinion of the court" and a concurrence, we

must follow the former. 

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Supreme Court adopted a more stringent standard for landlords,

requiring them to exercise reasonable care in discovering any

hidden defects on their premises -- essentially, a duty to inspect.

Williams bases this contention on the concurring opinion in O'Cain.

See Id. at 831-33 (Sullivan, J., concurring). Assuming, arguendo,

that the concurring opinion endorses Williams' position4, the

opinion of the en banc court clearly rejected it: "A landlord is

liable for latent defects which he knows about and conceals or

being aware of the defect, he fails to inform the tenant." Id. at

830 (emphasis in original) (quoting Loflin v. Thornton, 394 So. 2d

905, 906 (Miss. 1981)). Accordingly, we cannot agree that the

concurrence has changed Mississippi law.5 And, absent such a

change, Williams does not contend that she is otherwise entitled to

relief on this claim.

III.

For the foregoing reasons, the judgment is 

AFFIRMED.