If a picture paints a thousand words, do you still want to eat ground beef? Today’s post serves as a reminder that breaking a tooth while trying to eat the Old 96er does not give rise to a cause of action. Daniel Burns’ case didn’t survive summary judgment, and his appeal to the Appellate Division of the Massachusetts District Court does not begin well: “ Eating a McDonald’s double cheeseburger while driving his truck, the plaintiff, Daniel L. Burns, Jr. (“Burns”), felt a molar break on a hard object, which he did not recover.” Burns v. McDonald’s Corp., No. 10-ADMS-40001, 2010 WL 4226278 (Mass. Ct. App. Oct. 20. 2010). It turns out that Burns should have tried harder to recover the gristle, for without the foreign object he could not be successful as a matter of law.
The court sets up the facts well:
On October 20, 2006, Burns bought a double cheeseburger at a McDonald’s restaurant drive-through window in Raynham. As he drove his pickup truck onto Route 44 while finishing the cheeseburger, Burns had to brake so suddenly because of traffic that he had to restrain with his right hand his 75-pound dog, which had “started to go flying,” and then grab the steering wheel with both hands to keep his truck under control. Indeed, he “needed to push” the cheeseburger into his mouth so he could grab the wheel. While braking, with cars around him swerving, including the car behind him “swerv[ing] out from underneath the truck and into the breakdown lane,” Burns bit onto something and felt pain in the whole right side of his mouth. With his tongue, he felt a round and “hard and bumpy” object about the size of a “small pea.” He spit the contents of his mouth into a napkin. Examining that material later, he found what might have been tooth fragments, but not the offending object, which he never saw or felt, except with his tongue. Burns reported the incident to the restaurant on the day it occurred, and was examined by his dentist later the same day.
Might I suggest to Mr. Burns that, if you were to get in a similar situation again, please, drop the double cheeseburger. Then, reply to this post, and I will wire you the $1.49 to buy a replacement double cheeseburger. If you were to ever get into a car accident with me, and I found out that it was because you were unwilling to relinquish your death grip on your midday artery clog, I would be more than mildly upset. Cramming the sandwich into your gullet is not the decision of a rational actor.
But wait, there’s more: “Almost exactly a month before this incident, on September 19, 2006, a piece of the tooth at issue here simply “had come off” while Burns was eating.” Hmm. Burns cracks his tooth on an object that he didn’t preserve and can’t identify, and the affected tooth suffers from some pre-existing enamel-ady. Sounds Filet-o-fishy. Yes, I actually wrote that.
And it turns out that “Burns had no expectation of either demonstrating the identity of the object on which he allegedly bit, or, it follows, of establishing that object or substance was one that a consumer should not reasonably have expected to find in a cheeseburger.” Summary judgment upheld. What are the lessons to be learned here? 1) Be able to identify the foreign object in your burger. 2) Ensure that it is of such a quality that a consumer would not have expected to find said object in his burger. 3) This opinion would have been better if Burns had ordered the “Big N’ Tasty,” with the Court having to repeat “Big N’ Tasty” throughout the opinion. 4) All of you must immediately head to your local McDonald’s, because the McRib is back for a limited time. No I am not kidding. Try it, and you will love it.