United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, District Judge.
This matter is before the Court upon the motion of the United States to dismiss the complaint, or in the alternative for summary judgment. [R. 15] Plaintiff Altovise Wilson has filed a response [R. 21] to which the government has replied. [R. 22] This matter is therefore ripe for determination.
Wilson is a former federal prisoner, and was confined at the Federal Medical Center in Lexington, Kentucky, at all times relevant to his complaint. Wilson indicates that he is paraplegic and confined to a wheelchair. [R. 5, p. 2]
On September 2, 2012, Wilson was preparing to take a shower. In doing so, he was apparently aware of "numerous complaints about the water temperature [being] so hot, you don't have to boil it to make coffee." Nonetheless, he "rolled into the shower and set the water to warm [but] was burned by the excessively hot water." [R. 5, p. 2] In his response, Wilson further explained that as part of his routine, he would first turn on the shower and spray down the shower bench and clean it with a rag. [R. 21-1, p. 4] He would then transfer from his wheelchair to the shower bench. Wilson turned the shower knob halfway between cold and hot to get warm water. Wilson indicates that the shower head, which is handheld, was facing downward towards his lower body, and first wet his genital area. However, Wilson indicates that because he is paraplegic and "doesn't have any feeling from his waist down, " [R. 21-1, p. 4], he did not immediately feel the burns, but instead only noticed the injury to the skin in his groin area later that evening when he felt some moisture in his bed. [R. 5, p. 2]
The next day, Wilson went to the prison's medical center and was examined by Nurse Hardin, who determined that he had second degree burns in his inner thigh, penis, and groin area. [R. 15-3, pp. 2, 10-11] His skin was treated with wound cleaner and a skin wound barrier was applied. On September 4, 2012, Wilson was given Tylenol with oxycodone for pain management and a ten-day course of antibiotics was prescribed. [R. 5-3, p. 3; R. 15-3, pp. 14-15] Wilson's wound dressings were changed by a wound care specialist on September 7, 2012. [R. 5-3, pp. 7-9] A follow up examination ten days later established that Wilson's wounds showed "marked improvement, " and the prescription for narcotic pain relievers was discontinued as no longer necessary. [R. 15-3, pp. 27-28] At a chronic care visit on October 1, 2012, Wilson indicated that he had no continuing complaints regarding his burn injury. [R. 15-3, pp. 29-32]
Four days after the incident, on September 6, 2012, Wilson completed and filed a Form 95 Claim for Damage, Injury, or Death, the form used to attempt voluntary settlement of a claim prior to filing suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 ("FTCA"). In that form, Wilson explained that he had been burned by excessively hot water in the showers and sought $100, 000.00 in compensation. [R. 5-2, p. 1] The Bureau of Prisons denied his claim, stating that showers in the prison "meets the temperature standard of 105 degrees Fahrenheit, " and finding no indication of negligence by prison staff. [R. 5-1, pp. 2-3] Wilson filed suit in this Court under the FTCA on July 15, 2013.
The United States indicates that FMC-Lexington uses a water heating system that blends hot and cold water to provide evenly warmed water throughout the prison at plus or minus three degrees from its setting, and uses a diaphragm and stem system to avoid temperature spikes or scalding. While the water heater can provide water at temperatures between 105 and 180 degrees Fahrenheit ("° F"), it is set at standards established by the American Correctional Association which limit the upper range to 120° F. [R. 15-4 ( Hicks Decl. ), pp. 2-4, 5] The government indicates that FMC-Lexington had received no complaints regarding excessively hot water before Wilson's injury on September 2, 2012, or at any time thereafter; that monthly maintenance checks of the water heater during 2012 did not indicate any malfunctions; and that no service issues regarding the plumbing or the faucets indicated any problem with water heating during that period. Id. at pp. 5-7.
A "normal" shower temperature is 110° F. At 116° F, hot water passes the "pain threshold, " but at that temperature it will take 35 minutes of exposure to cause a first degree burn and 45 minutes of exposure to cause a second or third degree burn. At 122° F, above the ACA maximum, a first degree burn can occur in as little as 1 minute, but second or third degree burns will require 5 minutes of exposure. Hicks Decl. at pp. 4, 34.
In its dispositive motion, the United States contends that (1) Wilson cannot establish negligence because FMC-Lexington set the facility's water heater in conformity with nationallyestablished ACA guidelines and conducted regular maintenance inspections of the equipment to ensure that it maintained water temperatures within those parameters; (2) Wilson's injuries were de minimis because they were minor and resolved quickly; and (3) Wilson's decision to proceed in the face of an "open and obvious" danger by entering a shower he knew could be hot enough "to make coffee" relieves it from liability. [R. 15-1, p. 2] The Court will address each of these arguments.
The Court must treat the government's motion to dismiss the complaint as a motion for summary judgment under Rule 56 because it has attached and relied upon documents and declarations extrinsic to the pleadings in support of it. Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). A motion under Rule 56 challenges the viability of the other party's claim by asserting that at least one essential element of that claim is not supported by legallysufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). If the moving party demonstrates that there is no genuine dispute as to any material fact and that she is entitled to a judgment as a matter of law, she is entitled to summary judgment. Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127 (6th Cir. 1992).
The moving party does not need her own evidence to support this assertion, but need only point to the absence of evidence to support the claim. Turner v. City of Taylor, 412 F.3d 629, 638 (6th Cir. 2005). The responding party cannot rely upon allegations in the pleadings, but must point to evidence of record in affidavits, depositions, and written discovery which demonstrates that a factual question remain for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th Cir. 2003); United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) ("A trial court is not required to speculate on which portion of the record the non-moving party relies, nor is there an obligation to wade through' the record for specific facts.").
The court reviews all of the evidence presented by the parties in a light most favorable to the responding party, with the benefit of any reasonable factual inferences which can be drawn in his favor. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). The court must grant summary judgment if the evidence would not support a jury verdict for the responding party with respect to at least one essential element of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). If the applicable substantive law requires the responding party to meet a higher burden of proof, his evidence must be sufficient to sustain a jury's verdict in his favor in light of ...