                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 94-60539
                         _____________________

        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.

        ____________________________________________________

            Appeal from the United States District Court
              for the Southern District of Mississippi

        _____________________________________________________
                           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,
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-O-

Disc 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).




                                - 2 -
 A.




- 3 -
     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.



                                  - 4 -
                  (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


1
     Mandell maintained that household water should not exceed 130
degrees.

                                   - 5 -
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 widely-

accepted    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


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.

                                   - 6 -
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


                                - 7 -
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


                                         - 8 -
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


                                     - 9 -
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

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

                               - 10 -
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


significantly.

                                     - 11 -
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

                                  - 12 -
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.



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.

                              - 13 -
