Should this matter have gone to a jury on the failure to warn claim against the manufacturer of a device to control the temperature of a water heater?  The New York Court of Appeals today affirmed the Appellate Division, Second Department’s dismissal of the failure to warn claim against the manufacturer in Cleary v. Reliance Fuel Assocs. 

It is important to read the underlying decision from the Second Department to get the factual posture.  A child was scalded with hot water from a tap in a sink in her grandmother’s home.  The water in the water heater exceeded the set temperature because a device called an aquastat, manufactured by Honeywell, was inserted inside a sleeve, known as a well, which protruded into the tank of water.  The well was too large for the aquastat; it should have been inserted into a a 2-1/2 inch well but instead was inserted into a 4-inch well. The plaintiff claimed that Honeywell’s instructions failed to warn that too big of a sleeve could ultimately cause excessively hot water. 

Even though the instructions stated that the aquastat should fit snug into the sleeve, the instructions also provided a maximum measurement range of 4 inches.  This material fact is one that would seem to defeat Honeywell’s prima facie showing of its entitlement to judgment as a matter law.