Wednesday, March 9, 2011
Hot Coffee: Take Two (In Florida)
We here at Abnormal Use garnered a bit of buzz with our recent comments on Susan Saladoff’s Hot Coffee documentary and the Stella Liebeck litigation. Some of our critics have interpreted our remarks as an attempt to re-litigate that infamous McDonald’s case. Those critics scolded us and purported that “it’s over.” They advised us to simply “move on” and write on other topics. Perhaps those critics were right. Certainly, the details of a 1994 lawsuit must be irrelevant in today’s legal landscape. However, someone forgot to tell Florida’s Cynthia Gamrot.
According to the local ABC news affiliate, Ms. Gamrot recently ordered a cup of coffee at a Chick-Fil-A drive-thru in St. Petersburg, Florida. She allegedly spilled coffee in her lap and sustained second- and third-degree burns after the cup’s lid “popped off.” The coffee was served at a temperature somewhere between 170 and 200 degrees which was reportedly in accordance with Chick-Fil-A corporate policy. As a result, she sued the owner of the St. Petersburg Chick-Fil-A. (The report did not specify the jurisdiction in which the case was filed). Sound familiar?
In response to Ms. Gamrot’s lawsuit, Tampa’s ABC Action News tested the serving temperature of 33 cups of coffee from 10 national restaurant chains – a task reminiscent of law clerk Danny Jarrett’s work in the Liebeck case. The station’s study indicated that the majority of the coffee was served between 150 and 180 degrees. It should be noted, however, that the coffee served in the 150-degree temperature range came primarily from Arby’s and Wendy’s – two restaurants that do not serve breakfast and are not historically known for their coffee. Starbucks, Dunkin Donuts, Krispy Kreme, and McDonalds all tested in the 168 to 180 degree range.
Back in 1994, Plaintiff’s expert Dr. Charles Baxter opined during the Liebeck trial that the optimal temperature to serve coffee was between 155 and 160 degrees. Defense expert Dr. Turner Osler indicated that coffee served at a temperature as low as 130 degrees could result in burns similar to those sustained by Ms. Liebeck. Further, Reed Morgan, Ms. Liebeck’s counsel, theorized that any coffee served over 140 degrees was “unreasonably dangerous.” If this testimony from the Liebeck trial is true, why do top fast food chains continue to serve an allegedly “dangerous product?” Either restaurants have a diabolical agenda to harm their patrons or they have recognized that people enjoy their coffee piping hot.
The ABC affiliate’s study demonstrates that the Liebeck case did little, if anything, to alter the manner in which fast food restaurants serve coffee. Further, it reveals that the conduct of McDonald’s in the early 1990s conformed to industry standards – both then and now. Critics of the restaurant chain – and those who attempt to use the Liebeck case to advance the agenda of the Plaintiffs’ bar – simply fail to acknowledge the fact that coffee, by its very nature, is meant to be served hot. No one wants to consume a lukewarm cup of sub-140 degree coffee. Restaurants recognize this fact, as do consumers of coffee. Why can’t the trial bar? If Mr. Morgan honestly believes that any coffee served at a temperature greater than 140 degrees is “unreasonably dangerous,” then he essentially argues that coffee should be taken off of restaurant menus. Starbucks did not become a morning staple because of its iced coffee selections.
In no way are we here at Abnormal Use intending to trivialize the injuries of coffee burn victims.
No one is disputing the severity of Ms. Liebeck or Ms. Gamrot’s burns. We do, however, question the need for attributing liability for those burns to the producer or seller of the coffee. There is no evidence that either Ms. Liebeck or Ms. Gamrot expressed any concerns with their fast food-produced coffee prior to their accidents. In fact, we imagine they probably enjoyed the hot product, which is why they ordered it in the first place. They might have even complained had they been served coffee cooler than the industry standard temperature. Simply put, hot coffee does not become “unreasonably dangerous” until it is negligently spilled by the consumer.
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