According to reports, a Michigan man has filed suit against McDonald’s, alleging that he was burned by hot coffee at drive-through. The allegations in the case go a little something like this:

On December 5, 2016, Carl Honeycutt, while a front seat passenger in a vehicle operated by his friend, made his way to a McDonald’s drive-through in Ypsilanti, Michigan. Honeycutt ordered a cup of coffee. The McDonald’s employee handed the cup of coffee to the driver of the car who, in turn, handed the cup to Honeycutt. When Honeycutt took hold of the cup, the cup’s lid popped off and coffee  spilled onto Honeycutt’s chest. As a result, Honeycutt allegedly sustained second-degree burns.

In an interview with M Live, Honeycutt’s attorney, Joshua Cecil, stated that he is was well aware of the infamous Stella Liebeck lawsuit. But does this case really have anything in common with its infamous predecessor? Cecil seems to hope so. Cecil argued that the Liebeck lawsuit prompted McDonald’s to take steps to maintain its coffee at a reasonable temperature, but independent franchisees may not always follow through. Keep in mind, however, that there is no information as to the actual temperature of Honeycutt’s coffee or whether its temperature was outside the bounds of McDonald’s corporate policies. (Also, there is thing we have heard about a time or two that coffee, by its nature, is meant to be served hot).

The lawsuit raises two theories of negligence: (1) failing to secure the lid to the cup and (2) the coffee was served at an “excessive and unreasonable temperature.” The latter clearly paves a way down the Liebeck path. However, Liebeck verdict aside, the former may be the better path to any recovery rather than fight through the 20+ years of rhetoric over whether a company can be held liable for serving a hot product at a hot temperature within industry standards.

I have written about the hot coffee litigation for years. So much so that I suspected that one day I, too, would face my own hot coffee incident. After all, there is only so many times one can say, “Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way,” before the fates intervened. Karma works that way.  As I anticipated, that day finally came.

Recently, I had an out-of-town deposition that required me to leave my house long before nature intended humans to wake. After the lengthy deposition concluded, I began my sojourn home and thought it wise to acquire a cup of coffee. Thankfully, I found a not-to-be-named establishment selling coffee near the deposition location. I purchased a cup at the drive-thru and proceeded towards the exit to make my way to the interstate. Unfortunately, fate had other plans.

Turning left out of a parking lot with a cup of hot coffee in your right hand is not the best idea. Not able to coordinate the counterclockwise turning of the steering wheel with the proper handling of hot liquid, I squeezed the cup a bit excessively and dropped it. The lid dislodged, and piping hot coffee poured into my lap. And, let me be the first to tell you, it was hot. Really hot. Just how I like to drink it, but not so much how I want it soaking my nether regions. Apparently, karma burns.

Thankfully, I learned a thing or two about hot coffee during my studies (and knew to exercise a bit of common sense). I jumped out of the car (stopping first, of course) and pulled my pants away from my legs rather than allowing the hot coffee to cling to my skin. Thereafter, I engaged in a bit of a “shimmy” typically only acceptable on the dance floor of a wedding reception. In not so scientific terms, the movement kept the clothing fabric separated from the skin and allowed the coffee spill to air dry (or something like that). After several minutes of the “shimmy,” the worst passed. I wiped up the coffee lingering in my car seat with a towel, and  I was out of harm’s way.

While karma may have won the moment, the spill wasn’t the epiphany it may have desired. Rather than learn the horrors of hot coffee, I went right back to the drive-thru and ordered a second cup. I didn’t tell the establishment to lower the temperature. I didn’t call the news to report the hot coffee spill. I didn’t threaten to sue. Nope. Not me. I put that coffee right to my lips and enjoyed that first sip of piping hot nectar just like I always do.

You know why?

Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way.

As you know, we here at Abnormal Use have prolifically posted on hot coffee-related topics. The International Agency for Research on Cancer (IARC) has now given us a novel hot-coffee related topic on which to post. A review published today by the IARC concludes that the consumption of “coffee, mate, and very hot beverages” is “probably carcinogenic to humans.”

CNN reports that “the review by a panel of global experts stated that drinking beverages at temperatures above 65 degrees Celsius — 149 degrees Fahrenheit — could cause people to develop cancer of their esophagus, the eighth most common form of cancer worldwide.”  The reason being that the drinking of hot beverages “at this temperature can cause significant scald burns in the esophagus when they’re consumed and has previously been linked to an increased cancer risk in this part of the body.” The good news for our U.S. and EU readers is that “beverages are not typically consumed this hot in Europe and North America but are commonly served at, or above, this temperature in regions such as South America, the Middle East and East Africa — particularly when drinking teas.”

Reportedly, “the findings come after a group of 23 international scientists analyzed all available data on the carcinogenicity of coffee, maté — a leaf infusion consumed commonly in South America and other regions — and a range of other hot beverages, including tea. They decided that drinks consumed at very hot temperatures were linked to cancer of the esophagus in humans.”

The new classification for very hot drinks puts them in the same risk group as exposure to gasoline and lead, which are also classified as “possibly carcinogenic” by the IARC. Talcum powder as used in the perineal or anal regions of the body is also within this category.

For more information on carcinogens generally, please see our prior post on the alleged carcinogenicity of certain meats.

According to a report from ABC-30 (Fresno, CA), two Fresno women have recently filed suit against McDonald’s alleging that they sustained burns caused by hot coffee. There is nothing unique or interesting about two new hot coffee suits as they have been commonplace in the 20+ years since the infamous jury verdict in Liebeck v. McDonald’s. What is interesting, however, is that Plaintiffs’ counsel and ABC-30 seem to think they made some newfound discovery as to the reason these suits keep popping up. As reported by ABC-30:

Wagner says hotter coffee stays fresh longer, so McDonald’s usually chooses to keep it too hot — saving more than $1 million a day at franchises across the country. Legal analyst Jeff Hammerschmidt says that savings may be more valuable than customer safety. ‘It appears McDonald’s has made a business decision to sell the coffee hotter to be able to make more profit and they continue to make more profit even if they’re paying settlements,” he said.

In other words, McDonald’s serves hot coffee because it is good for business. Talk about a newsflash.

We jest at this recent epiphany about the association between hot coffee and higher profits, but the argument is clearly nothing new. The argument was pivotal in the Liebeck  trial and the jury based its $2.7 million punitive damages award on McDonald’s two day revenue from hot coffee sales. In any event, this “corporate greed” theory ignores the simple point made here at Abnormal Use many times – coffee is served hot because people like it that way. In discussing a hot coffee suit filed against Chick-Fil-A back in 2011, we had this to say about the hot coffee-sales comparison:

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.

Does McDonald’s serve hot coffee because it is concerned about its bottom line?  Sure, it does, but what business doesn’t act in ways to maximize profits?  McDonald’s, Starbucks, or any other coffee-selling establishment serves coffee hot because the consumer demands it.  And, for this reason, we have questioned whether coffee can be construed as “unreasonably dangerous” in most situations.

On an interesting note, ABC-30 measured the serving temperature at the McDonald’s at issue in the recent lawsuits and found the temperature to be 153 degrees – less than the optimal serving temperature prescribed by the plaintiff’s expert in the Liebeck case. The coffee in ABC-30‘s break room? It was served at 167.5 degrees.

We here at Abnormal Use have remained quiet on the hot coffee lawsuit front in recent months. While news reports of such suits often arise, we think we know when to stop beating a dead horse. After all, we have written on the subject of hot coffee lawsuits some 48 times, and there are only so many ways we can say that there is nothing unreasonably dangerous about a product meant to be served hot. Certainly, such dedication to the legal topic was foreseeable when Stella Liebeck ordered that 49 cent cup of coffee from a New Mexico McDonald’s 23 years ago.

That said, every now and again we must come out of hibernation.  And, for good reason. Just because a cup of coffee is a component in an accident case, it does not mean that the case is a “hot coffee case” or bears any resemblance to the infamous Liebeck verdict.  It is time the media gets the message.

Last week, myCentralJersey.com ran the following headline: “Dunkin’ Donuts will pay $522k to Somerset woman who tripped, spilled coffee on herself.”  Undoubtedly, the headline was designed to attract readers by drawing upon their passions for the Liebeck case.  Woman spills coffee on herself and gets a big settlement.  Sounds familiar, right?  We understand why a reader might click on that link.

The problem is that the case has little, if any, resemblance to the Liebeck case.  Upon a review of the article, the reader will see that the case sounds in premises liability – not an allegedly defective product. Back in 2012, the woman purchased multiple cups of coffee at a Dunkin’ Donuts. When walking back to her car, she tripped over an exposed spike from a dislodged curb stop. In the fall, she spilled the coffee on her face and neck. She also sustained lacerations on her hand and knee. While she was burned by hot coffee, there is nothing in the report about whether the coffee was abnormally hot or otherwise defective in any respect. In fact, the only quote found in the report comes from the plaintiff’s lawyer, and it, too, makes no reference to the coffee. Specifically, attorney Ed Rebenack said, “Basic property maintenance would have saved Ms. Marsala from years of debilitating injuries.” Clearly, it is a premises – not product – liability matter.

We understand the concept of clickbait. We also understand the need to draw readers to your site. But, for us legal geeks, the headline is painfully misleading to say the least. Yes, the plaintiff obtained a settlement based, in part, due to coffee burns. The case, however, is not a “hot coffee” case at all. Certainly, hot coffee purportedly contributed to the injuries, but Dunkin’ Donuts’ alleged liability rests with the conditions of its premises. The case would have been the same even if hot coffee was replaced with any other object picked up from inside the store capable of causing injuries. For example, if the plaintiff picked up a plastic knife in the store, tripped in the parking lot, and was stabbed by the knife, then the end result could have been the same. (We recognize this is a stretch, but, hey, it’s a hypothetical) Would the headline have read, “Dunkin’ Donuts will pay $522k to Somerset woman who tripped, stabbed herself with plastic knife”?

Absolutely not. Well, maybe, and if it had, we would have certainly written about those facts, as well.

There are some who will use this case as an example of the alleged dangers of hot coffee. Sure, hot coffee can cause burns.  That has never been in dispute. It is the liability for hot coffee that generates all the buzz. As ridiculous as we find those lawsuits, this case is not one of those. This is just a premises case that just so happens to involve a cup of coffee.  A report whose headline should have read,”Dunkin’ Donuts will pay $522k to Somerset woman who tripped on a dangerous condition in the parking lot, sustained injuries that just so happen to involve a cup of coffee.” That’s more like it.

As you know, we here at Abnormal Use often, perhaps incessantly, have written about the Stella Liebeck McDonald’s hot coffee case. Today, we revisit that case not to discuss its merits or legacy, but to remark upon one of history’s interesting twists. No matter your position on the issues presented by the Liebeck case, this is an intriguing historical tidbit.

At its essence, the Liebeck case was a products liability case in which the Plaintiff alleged that the hot coffee at issue was, by its very nature, “excessively hot” and “manufactured defectively due to excessive heat.” In her suit, the Plaintiff alleged that she sustained “severe and painful burns” which resulted in “skin grafting, debridement, and general recovery from painful scaring, as well as pain and discomfort associated with drawn and tight skin in the scarred areas, which pain and discomfort persists at the present and will persist into the future.” Obviously, as a result of alleging such claims and injuries, the Plaintiff needed some expert medical testimony to establish her claims.

The Plaintiff designated Dr. Charles Baxter, a medical doctor as her “burn specialist.” At the trial, Dr. Baxter opined that coffee served at 180 degrees was simply too hot and the ideal range for a coffee’s temperature to be served was between 150 and 160 degrees.

Dr. Baxter has an interesting resume.

Check out this excerpt from a March 13, 2005 Associated Press obituary which appeared in The Washington Post following Dr. Baxter’s death that year;

Charles L. Baxter, 75, one of the doctors who tried to save President John F. Kennedy after he was shot in Dallas on November 22, 1963 died March 10 at the University of Texas Southwestern Medical Center in Dallas where he had been a professor emeritus of surgery since 1993.

That same day, Dr. Baxter operated on Texas Governor John Connolly.

With respect to his experience on burns, Dr. Baxter’s experience was summarized by the AP as follows:

Dr. Baxter developed a formula for burn patients, referred to as the Baxter Burn Formula or the Parkland Burn Formula. He discovered that patients with large, severe burns need tremendous amounts of fluid the first day of treatment, especially during the first eight hours.

Dr. Baxter also founded a tissue bank at Parkland Hospital to provide skin grafts for burn patients.

According to the Texas Medical Board, Dr. Baxter received his medical license on August 14, 1954. This means that at the time of the Liebeck trial, which took place on August 8-12 and 15-17, 1994, he had been a licensed medical doctor for 40 years to the day. Oh, and here is a link to Dr. Baxter’s testimony before the Warren Commission.

Don’t forget, folks! GWB attorneys and Abnormal Use bloggers Jim Dedman and Nick Farr will be presenting a CLE for the Mecklenburg County Bar Association on Wednesday, November 19th in Charlotte, North Carolina. That’s tomorrow afternoon! Of course, their topic is “20 Years Later: The Truth Behind the McDonald’s Hot Coffee Trial,” a program which will provide some surprising revelations into the well known trial. It will be held at the Olde Mecklenburg Brewery’s brand new facility. Here’s the good news: You can still register! You can do so by clicking here.

We hope to see you there.

As you of course already know, we here at Abnormal Use have devoted much time to the discussion of hot coffee lawsuits.  As we have often suggested, supporters of cases like the infamous Stella Liebeck v. McDonald’s case focus too much on the damages and not enough on the liability issues, such as whether coffee is an “unreasonably dangerous” product.  After all, in a tort action, a plaintiff doesn’t get to damages without first proving liability.

Now, a new report has us questioning our position.

According to a news report from CBS-Los Angeles,  a California woman is facing two dozen counts of felony insurance and workers compensation fraud for allegedly submitting false damages materials pertaining to a hot coffee claim.  The criminal complaint filed in the San Bernardino County Superior Court states that the woman claimed that hot coffee was spilled on her hand when she was handed a cup with an unsecured lid at a McDonalds drive-thru.  Thereafter, she submitted photos of second-degree burns she allegedly lifted from the Internet.  Couple that with medical records she allegedly doctored, and you have serious fraud, if true.  And, to think, after all this time, after writing about all of these cases, we just assumed the burns were legit.

In all seriousness, we know that hot coffee can cause burns, and this incident is an outlier.  That said, we have to wonder how much influence the Liebeck verdict and its legacy had on this woman’s plan.  Or, maybe she consulted with Jackie Chiles.  Either way, we have to give her some credit.  At least she knew to attribute some independent act of negligence to McDonalds (i.e. spilling the coffee) rather than complain about the temperature of the coffee itself.

According to a report from The Buffalo News, G.B. Restaurants, the parent company of Denny’s, recently paid $500,000 to settle yet another hot coffee-related lawsuit.  While this settlement is not so far removed from the 20th anniversary of the infamous Stella Liebeck-McDonald’s hot coffee case, the underlying theory of liability couldn’t be more different.  In this case, Jose Adams and Sally Irizarry of Puerto Rico sued the restaurant chain after their 14-month old daughter was burned by hot coffee in a Buffalo, New York Denny’s.  The daughter sustained those burns after she grabbed a cup of coffee off of the table and spilled it on herself.  The crux of the lawsuit is whether the waitress was negligent in placing the coffee within arm’s reach of the child – not that the coffee was unreasonably dangerous as alleged in the Liebeck suit.

With every new hot coffee case that hits the news, the media can’t help itself but to make comparisons to the now 20-year old Liebeck case. (We tend to do a bit of the same ourselves, but that’s why you love this blog, right?) In fact, The Buffalo News began and ended its report with references to the Liebeck case even though the only link those cases share is the presence of hot coffee.  Without the Liebeck case coming before it, we doubt this case would have garnered its own headline (or be the source of blog fodder).

Liebeck comparisons aside, this case has its own liability issues.  We do not know much about the facts of the case, but we have to wonder how long the cup sat on the table prior to the child pulling it off.  As former patrons of Denny’s, we know that table space can be limited depending on the size of the food orders.  Also, as parents, we certainly can empathize with the perils of having young children in restaurants.  However, we are also cognizant of a child’s reaching hands and plan accordingly.  Should a waitress be responsible for placing the coffee too near the child?  Maybe, but these other factors should also be considered when analyzing how the coffee got onto the child in the first place. We’ll keep you posted on this case if circumstances warrant.

As you know, we here at Abnormal Use have written a good bit about the infamous Stella Liebeck McDonald’s hot coffee case. Well, if you’re in Charlotte, North Carolina in November, you can see Abnormal Use writers Jim Dedman and Nick Farr speak in person about the case at an upcoming CLE sponsored by the Mecklenburg County Bar Association.

Come join us if you’re nearby! Here’s the info (straight from the MCBA website):

20 Years Later: The Truth Behind the McDonald”s Hot Coffee Trial

Wed., Nov. 19, from 3:30 p.m. – 5 p.m.

Olde Mecklenburg Brewery

CLE Credit:
1.5 General Hours

Fees:
$110 Attorney CLE/Reception Rate
$55 Paralegal Rate/Reception

Location:
Olde Mecklenburg Brewery
4150 Yancey Rd.
Charlotte, NC 28217

Special Info:
3 p.m. – 3:30 p.m. Registration
3:30 p.m. – 5 p.m. CLE Training
Networking Reception to Follow CLE

Program Planners:
James M. Dedman, IV, Partner, Gallivan, White & Boyd, P.A.

Program & Speakers:
3:30 p.m. – 4 p.m.
James M. Dedman, IV, Partner, Gallivan, White & Boyd, P.A.
Recap of the basic facts of the case and the effort to dispel some of the broader myths that have arisen over the years regarding the “hot coffee” litigation.

4 p.m. – 4:30 p.m.
Nicholas A. Farr, Gallivan, White & Boyd, P.A.
Liability and Damage Issues – Defense Lawyer’s Perspective

4:30 p.m. – 5 p.m.
Andrew Fitzgerald, Wall Esleeck Babcock LLP
Liability and Damage Issues – Plaintiff Lawyer’s Perspective

To register, and earn CLE credit, click here.