Lexis Nexis - Case Brief

Not a Lexis+ subscriber? Try it out for free.

Law School Case Brief

Andrushchenko v. Silchuk - 2008 S.D. 8, 744 N.W.2d 850


In order to prevail in a suit based on negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury. A duty can be created by statute or common law. Typically, existence of a duty is a question for the court to resolve. The question involves whether a relationship exists between the parties such that the law will impose upon the defendant a legal obligation of reasonable conduct for the benefit of the plaintiff.


In 2002, the Silchuks invited the Andrushchenkos and the latter’s three-year old son, D.A., over to their home for lunch. In the course of the visit, D.A. sustained burns by the hot water in the bathtub on the Silchuks’ master bedroom. D.A.’s burns required extensive treatment, including plastic surgery. Silchuks' water heaters were installed as part of the construction of their home a few months prior to the incident. Metzger Construction, as the general contractor, hired M & M to install the water heaters. M & M claimed it set the thermostats at 125 [degrees] F. Consequently, Plaintiffs Andrushchenkos brought suit against defendants Silchuks, Metzger Construction, Inc., and M & M Plumbing-HVAC, L.L.C. (M & M) alleging that the defendants were negligent. They claim that Silchuks owed D.A. the duty of ordinary and reasonable care because of his status as an invitee and because of a gratuitous duty undertaken by Mrs. Silchuk to protect D.A. Moreover, they claimed that Metzger had a duty to set the water heater thermostats at 120 [degrees] F. as established by the 2003 Uniform Plumbing Code and the water heater manuals and that Metzger's duty extends to third parties such as D.A. They also claimed that M & M had a duty to warn Silchuks that the thermostat setting had a high risk of scalding. Defendants Silchuks, Metzger and M & M filed motions for summary judgment after discovery. Silchuks and Metzger objected to three of Andrushchenkos' opposing affidavits: (1) police reports of the investigation of the incident, (2) a water heater use and care manual and (3) a copy of the 2003 Uniform Building Code. The circuit court sustained the objections to the three affidavits and their attachments because of lack of foundation or relevancy. The circuit court entered summary judgment for all defendants. The court determined from the undisputed evidence that Andrushchenkos had not established that the defendants owed a duty to the injured child. The Andrushchenkos appealed, arguing that the trial court erred by not admitting exhibits offered in opposition to defendants' summary judgment motion.


  1. Did the trial court err in not admitting the exhibits offered by the Andrushchenkos in opposition to defendants’ summary judgment motion?
  2. Did the defendants owe a duty to the injured child, thereby, rendering the grant of summary judgment an error?


1) No. 2) No.


The Court concluded that the trial court did not abuse its discretion when it refused to consider police reports, a water heater manual, and the 2003 Uniform Plumbing Code because plaintiffs failed to lay a proper foundation for admissibility or to establish the relevance of the evidence. According to the Court, the Andrushchenkos failed to provide any affirmative evidence that the Silchuks knew the temperature of the water in the bathtub was excessively hot or that it presented a scalding danger. It did not need to be determined if the temperature of the water met the requirements of a hidden danger because the facts did not establish that the Silchuks knew the temperature presented a danger about which they had a duty to warn social guests. As to the second issue, the Court held that the trial court properly granted summary judgment to the defendants, as the Andrushchenkos failed to provide evidence of a statutory or common law duty on the part of the general contractor or the plumbing company to set the hot water heater thermostat at or below 120 degrees Fahrenheit.

Access the full text case Not a Lexis+ subscriber? Try it out for free.
Be Sure You're Prepared for Class