Taking a few small measures can keep you out of legal hot water.

Many years ago, I wrote a column in which I warned plumbers could be sued if they raised the temperature setting on a water heater. What I hate is when my prophetic statements come true.

Such a lawsuit against a plumber recently occurred in New Jersey. A plumbing contractor was called to a newer home to check why the fixtures were not getting an adequate supply of hot water. Upon investigation, the plumber noticed that the water heater thermostat was set between vacation and low. He informed the owners of the problem and adjusted the setting to between high and very high. Because the job entailed a few minutes and a simple turning of a dial, the plumber did not charge the customer for a service call.

The home was owned by a retired surgeon and his wife. The doctor suffered from a severe case of diabetes. Approximately a week after the plumber readjusted the water heater, the doctor was preparing to take a bath. He checked the temperature with his foot. While the tub was approximately half full, the doctor slipped into the tub and received first- and second-degree burns on the lower half of his body. He was rushed to the hospital and spent many weeks recovering from the burns. The burns were severe enough that the doctor never walked again.

Approximately a year and a half later, the doctor died. I should note that his death was not attributed to the burns, but to diabetes.

Expert Opinions? The doctor’s wife sued the plumbing contractor claiming he set the temperature of the water heater too high. Her lawyers hired experts to render opinions as to the plumbing contractor’s negligent action. Keep in mind, that in today’s litigious society, you can find experts to say just about anything. What is important is for the courts to sort out the credibility of the expert’s testimony.

The plumbing contractor’s attorney came upon my name when he was discussing the case with an attorney friend of mine. I was asked to review all of the data and the statements from the opposing side’s experts and render an opinion. The attorney concluded with a defeatist attitude by saying, “If the plumbing contractor was in the wrong, let us know so that we can offer a settlement.”

It’s not reassuring to have an attorney start on such a negative note. Knowing that the attorney was not all that knowledgeable about plumbing and plumbing codes, I couldn’t wait to dig into the files and read what these experts were saying.

One expert was an engineer with a long string of glowing credentials — none of which had anything to do with plumbing. His report was something to read. In this expert’s opinion, every plumbing contractor should carry a thermometer to measure the temperature of the hot water whenever a water heater is installed, modified or adjusted. So after the plumbing contractor changed the setting, he was supposed to wait for the water heater to shut off and open a faucet and measure the water temperature at various intervals, concluding with a reading five minutes after the hot water was turned on.

That is all we need to do, stand around and measure water temperature all day. Unfortunately, the plaintiff’s lawyers got another so-called “expert” who was a plumbing contractor to agree with this engineer. He claimed that he always measures the temperature of the hot water and every plumber should do the same.

My favorite part of the engineering expert’s report was the constant reference to the fact that the plumbing contractor set the water heater at scalding temperature. I went crazy over such a statement. I thought, “Of course the plumbing contractor sets the water heater at scalding temperatures. All hot water is at scalding temperatures.”

Most plumbing codes define hot water as 120 degrees F, or higher in temperature. As most of you recognize, 120 degree water will scald the body after a period of time. Some plumbing codes define hot water as 110 degrees, or higher. I know of one fatality in a bathtub where the water temperature was 111 degrees. Although the lower temperature does not result in the instant shock factor, it can still scald the body over a period of time.

The estimated temperature of the hot water in this particular lawsuit was approximately 138 degrees after the plumbing contractor adjusted the thermostat. It was assumed that the doctor and his wife had not yet gotten used to the higher temperature of hot water. The doctor may have just turned on the hot water to fill the bath since that was the normal procedure before the water heater thermostat was adjusted.

Shared Responsibility: You may be wondering about the thrust of my report after reviewing all of this information. I concluded the doctor had a greater knowledge of the effects of hot water because of his medical background. Additionally, the doctor knew what impact diabetes has on the body. As a severe diabetic himself, the doctor knew his lower extremities start to lose their feeling due to constriction of the blood vessels. As such, the foot would be a poor appendage to use to test the water temperature. It appeared that the doctor failed to follow the normal precautions that he would advise his own patients to follow.

Although it was extremely unfortunate that the doctor suffered such severe burns, it was my opinion that every individual has a certain responsibility to protect oneself. If the doctor did not properly adjust the water temperature, it certainly wasn’t the fault of the plumber. The plumbing contractor did what he was asked to do — improve the performance of the hot water distribution system.

It also helped to have the support of the American Society of Plumbing Engineers. The group’s Research Foundation issued a report that recommended the temperature of hot water be set between 135-140 degrees. The lower temperature is to prevent the growth of the bacteria that causes Legionnaire’s Disease. The higher setting is to reduce scalding incidents.

After issuing my report, the case was settled and did not go to court. I think the other side realized that while the case looked good from an emotional standpoint, there was no technical justification for going after the plumber.

Can the same thing happen to you? Of course! To avoid the possibility of a lawsuit regarding the temperature of hot water, it’s best to take some CYA steps. As my attorney friend says, a few small measures can keep you out of court. The options you have are as follows:

• Don’t ever touch the thermostat on a water heater.
• If it needs to be adjusted, inform the owner how to adjust the water temperature. Then inform them of how the scald potential increases with increased temperature; or
• Have a disclaimer statement prepared that the owner signs, recognizing that you have raised the temperature of the water heater and the owner recognizes the increased potential of scalding; or
• Leave an information sheet that explains the hazards of hot water and make sure the owner recognizes that the hot water temperature can be turned down by adjusting the thermostat.

I wish I could say following one of these steps was unnecessary. However, I’m a realist. It is smart business to take an ounce of protection to keep you out of court.