                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2002-CA-00639-SCT

LATOYA DENISE MOORE, A MINOR BY AND
THROUGH HER NEXT FRIEND, JEROME MOORE

v.

MISSISSIPPI VALLEY GAS COMPANY, A
MISSISSIPPI CORPORATION AND RHEEM
MANUFACTURING COMPANY

DATE OF JUDGMENT:                              3/11/2002
TRIAL JUDGE:                                   HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                     HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        SUZANNE GRIGGINS KEYS
ATTORNEYS FOR APPELLEES:                       MYLES A. PARKER
                                               ROBERT DOUGLAS MORGAN
                                               CHARLES E. GRIFFIN
                                               JAMES L. CARROLL
                                               DENNIS BROWN
NATURE OF THE CASE:                            CIVIL - PERSONAL INJURY
DISPOSITION:                                   AFFIRMED - 11/06/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE McRAE, P.J., WALLER AND GRAVES, JJ.

       GRAVES, JUSTICE, FOR THE COURT:


¶1.    This products liability case is on appeal from an order of the Hinds County Circuit Court, First

Judicial District, granting summary judgment to Mississippi Valley Gas Company (MVG) and Rheem

Manufacturing Company (Rheem). The complaint in this matter was filed on July 29, 1996, by LaToya
Denise Moore, a minor by and through her next friend, Daphne Sultan. Daphne Sultan, her mother, has

since died, and Latoya's father, Jerome Moore, has been substituted as her next friend.

¶2.     The complaint alleged that on February 19, 1989, LaToya suffered injury when she fell into a tub

of hot water and that the hot water was produced by Rheem’s gas water heater. Moore contended that

Rheem’s water heater was unreasonably dangerous in design, that a feasible alternative existed, and that

Rheem also failed to warn of the danger of its use.

¶3.     MVG and Rheem answered, denying any liability. Discovery proceeded in this matter after which

MVG and Rheem filed a combined motion for summary judgment and memorandum in support of summary

judgment on September 5, 2001. On December 5, 2001, Moore filed a response to the motion for

summary judgment and a supplemental response on January 18, 2002. The trial judge granted MVG and

Rheem’s motion on March 12, 2002. It is from this order that Moore has filed the instant appeal. The

following issues are presented for consideration by this Court:

        I.      WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY
                JUDGMENT WHEN THERE IS A GENUINE ISSUE OF MATERIAL FACT
                CONCERNING:

                A. THE IDENTIFICATION OF THE PRODUCT INVOLVED;

                B. THE DEFECTIVE CONDITION AND UNREASONABLE
                DANGEROUSNESS OF THE PRODUCT;

                C. THE INADEQUACY OF WARNING;

                D. THE FEASIBLE ALTERNATIVE DESIGN.



        II.     WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY
                JUDGMENT WHEN THE DEFENDANTS ARE NOT ENTITLED TO
                JUDGMENT AS A MATTER OF LAW.



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                                                 FACTS

¶4.     At approximately 8:00 p.m. on February 18, 1989, Deborah Sultan decided to take a bath at her

home located at 511 Hemlock Street in Jackson, Mississippi. On the night the incident occurred, eleven

people who resided in the home were present, including Deborah Sultan’s eighteen-year-old daughter,

Plaintiff Daphne Sultan, along with her eleven-month-old daughter, Plaintiff LaToya Moore.

¶5.     Deborah Sultan only put hot water in the bathtub and filled it approximately half full and then left

the bathroom to let the water cool down. Deborah Sultan partially closed the door. Approximately five

minutes after Deborah Sultan left the bathroom, her nine-year-old daughter, Maranda, told her “the baby

was in the tub.” Deborah then rushed to the bathroom and found plaintiff Daphne Sultan attempting to

remove LaToya’s clothes. An ambulance was called, and LaToya was rushed to the hospital. It was

determined that LaToya had sustained hot water burns over 90% of her body.

¶6.     University Hospital physician, Dr. Mike Osborne, informed the Jackson Police that LaToya had

suffered a “prolonged exposure to hot water, not just a quick submersion.”

¶7.     Both plaintiff Daphne Sultan and Deborah Sultan initially told the police that LaToya fell in the

bathtub of hot water while unsupervised and “that they don’t normally leave LaToya unattended while bath

water is running because she has fallen in this bathtub before.” However, plaintiff Daphne Sultan changed

her story a month later when on March 31, 1989, she reported to the police that her mother’s boyfriend,

Glenn Stephenson, had intentionally put LaToya in the tub of hot water. Daphne Sultan returned to the

police fifteen months later and renewed her accusation against Stephenson. Moreover, in different therapy

sessions, Daphne Sultan repeatedly told counselors with Catholic Charities that Stephenson had badly

burned LaToya.




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¶8.     Despite her accusations against Stephenson, Daphne Sultan eventually filed this lawsuit on July 29,

1996, wherein she blamed the incident on the landlord, Defendant Gene Rice, MVG, and Rheem. Gene

Rice was ultimately dismissed with prejudice.

                                            DISCUSSION

        A. THE IDENTIFICATION OF THE PRODUCT INVOLVED.

¶9.     Moore argues that the accused hot water heater was a 40-gallon Rheem hot water heater. The

record reveals that there is no witness who can identify the make, model, or manufacturer of the allegedly

defective hot water heater. The only evidence of any involvement by Rheem is a sales invoice stating that

Cornelius Williams, who previously resided at 511 Hemlock, purchased a 40-gallon hot water heater,

Serial #0181M17815 (the 1981 hot water heater), from MVG on February 13, 1981. This receipt does

not indicate at what address the listed hot water heater was installed. Williams is deceased. Waller

Plumbing, who installed the hot water heater, no longer exists. In 1991, Rice, the landlord, replaced the

1981 hot water heater with a new one. This was due to a leak which developed in the hot water heater.

The 1981 hot water heater was discarded, and Rice is unaware whether it was a Rheem product or bore

the Serial #0181M17815. Several years later, the 1991 hot water heater began to leak, and it was

replaced in 1996 with yet another hot water heater.

¶10.    More than seven years after LaToya’s 1989 burning, Rheem and MVG first learned of the incident

when they were served with the instant lawsuit, which was filed in 1996. Because the 1981 hot water

heater had already been destroyed, Rheem and MVG did not have the opportunity to identify, view, inspect

or test the hot water heater. Thus, no one is certain whether the 1981 hot water heater was in fact a Rheem

product. Therefore, a jury verdict would be based on speculation and/or conjecture. Mississippi law is




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clear and unambiguous that such a verdict cannot stand. Barnes v. Taylor, 347 So.2d 972, 974 (Miss.

1977). We find that there is insufficient evidence to determine the product/manufacturer identification.

        B. THE DEFECTIVE CONDITION AND UNREASONABLE
        DANGEROUSNESS OF THE PRODUCT.

        C. THE INADEQUACY OF WARNING.

        D. THE FEASIBLE ALTERNATIVE DESIGN.

        II. SUMMARY JUDGMENT AS A MATTER OF LAW.

¶11.    Inasmuch as sub-issues of issue one and issue two are related, they will be discussed

simultaneously. Moore argues that the defective condition of the hot water heater created an unreasonably

dangerous product which failed to adequately warn consumers of its hazardous design and feasible design

alternative.

¶12.    The provisions for a products liability claim is detailed in Miss. Code Ann. § 11-1-63 which states:

        (a) The manufacturer or seller of the product shall not be liable if the claimant does not
        prove by the preponderance of the evidence that at the time the product left the control of
        the manufacturer or seller:
                (i)1. The product was defective because it deviated in a material way from the
        manufacturer's specifications or from otherwise identical units manufactured to the same
        manufacturing specifications, or
                 2. The product was defective because it failed to contain adequate warnings or
        instructions, or
                3. The product was designed in a defective manner, or
              4. The product breached an express warranty or failed to conform to other express
        factual representations upon which the claimant justifiably relied in electing to use the
        product; and
                 (ii)The defective condition rendered the product unreasonably dangerous to the
        user or consumer; and
                 (iii) The defective and unreasonably dangerous condition of the product
        proximately caused the damages for which recovery is sought.

¶13.    Thus, it is incumbent upon the plaintiff in any products liability action to show that the defendant’s

product was the cause of the plaintiff’s injuries. Assuming arguendo that the 1981 hot water heater was

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in fact a Rheem brand, the evidence is undisputed that it would have complied with all mandatory and

voluntary government and industry standards, including the standards of the American Gas Association

(AGA) and the American National Standards Institute (ANSI). All models of Rheem hot water heaters

are tested and certified to the standards promulgated by the AGA and ANSI. More specifically, a 1981

Rheem hot water heater would have complied with ANSI Z21.10.1 and contained the scald warning

language required under the standard.

¶14.    Additionally, Deborah Sultan was renting the residence under the Section 8 housing program of

Housing and Urban Development (HUD), and HUD inspected the residence prior to the Sultan’s moving

into it. HUD’S May 5, 1988, inspection revealed no problems with the 1981hot water heater. As part

of its annual review process, HUD conducted another inspection on March 30, 1989, six weeks after the

incident. HUD again found nothing wrong with the 1981 hot water heater. Although HUD listed a number

of needed repairs, none of the repairs related to the 1981 hot water heater or the home’s hot water

temperature. Deborah Sultan never complained to HUD inspectors that the water was too hot or that there

was anything wrong or defective with the 1981 hot water heater.

¶15.    This Court applies a de novo standard of review to a trial court's grant or denial of summary

judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss. 2001). Our appellate

standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial

court under Rule 56(c) of the Mississippi Rules of Civil Procedure, which states that summary judgment

shall be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together

with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. The burden of demonstrating that no genuine issue of fact exists

is on the moving party. However, “when a party opposing summary judgment on a claim or defense as to

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which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an

essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled

to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss. 1987).

Moore has failed to meet that burden here.

                                             CONCLUSION

¶16.    It is truly tragic that young LaToya Moore was seriously injured. However, Moore’s claims were

properly dismissed because she has failed to prove a case beyond mere speculation. There is no evidence

that, the accused hot water heater was installed at Deborah Sultan’s residence, and there is no evidence

that, even if installed there in 1981, the same hot water heater was still operating there in 1989. Because

the product was destroyed, Moore cannot prove that the accused hot water heater reached the consumer

without substantial change or alteration.

¶17.    Additionally, there is no evidence to support Moore’s contention that Rheem and MVG grossly

disregarded or were recklessly indifferent to Moore’s safety. In 1981, Rheem’s hot water heater would

have been tested and certified to industry standards. For the aforementioned reasons, we affirm the

summary judgment for MVG and Rheem.

¶18.    AFFIRMED.

    PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY AND
CARLSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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