New McDonald’s Hot Coffee Lawsuit: Still Trying To Relive the Liebeck Litigation

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.

Let It Be! Lawsuit Between Beatle Son and Parents of My Cousin Vinny Actress Comes to an End

According to a report from the New York Post, a lawsuit over a rotting tree in Greenwich Village has settled after two years of litigation. You might not think such a case is a big deal. It is true that tree litigation does not normally grace the pages of Abnormal Use. This case, however, is different. Really different. Why, you say? Well,  the litigants just so happen to be the son of a Beatle and the parents of My Cousin Vinny’s Mona Lisa Vito (aka Marissa Tomei).

Back in 2015, Gary and Addie Tomei filed suit against Sean Lennon, the son of John Lennon and Yoko Ono, claiming that a rotting ailanthus tree on Lennon’s property had encroached upon their property, causing damage to their 4000 square foot townhouse (purchased for $9.5 million back in 2008). Specifically, they alleged that the roots of the 60-foot-tall tree cracked their front stoop, broke the iron railings, and encroached upon their basement. The Tomeis sought the removal of the tree plus a hefty $10 million in damages. In a total boss move, Lennon demanded that the Tomeis alter the entrance of their multi-million dollar townhouse to accommodate his encroaching tree.

Now, the lawsuit which pitted litigants associated with two of our favorite things against each other has come to an end. The exact details of the settlement are confidential. However, it is known that the tree at the center of the dispute was cut down last month. To us, it sure sounds like the son of a Beattle lost out to the parent’s of the out-of-work hairdresser.

Wal-Mart’s Venture Into Craft Beer Under Fire

According to a report from the Chicago Tribune, a new class action lawsuit has been filed in Ohio against Wal-Mart, accusing the retail giant of shady beer sales. Specifically, the suit takes issue with Wal-Mart’s sale of its own line of “craft” beer in collaboration with Trouble Brewing. The problem, according to the complaint, is that Trouble Brewing does not really exist. In reality, the Wal-Mart brew is brewed on a contract basis by Genessee Brewing, which is owned by North American Breweries and produces more beer than would warrant the “craft” moniker. Plaintiffs allege that Wal-Mart has created a “wholesale fiction,” placing its beer on the shelves around other legitimate craft beers, to deceive consumers into purchasing craft beer at a higher, inflated price.

So what really is a “craft” beer? The Brewers Association defines a craft brewer as “small, independent, and traditional.” To qualify, a craft brewery must produce less than 6 million barrels of beer annually, be less than 25 percent owned or controlled by a non-craft brewery, and make beer using only traditional or innovative brewing ingredients. While Genessee isn’t Anheuser Busch InBev or MillerCoors, the “Trouble Brewing” brand, assuming the allegations in the complaint are true, certainly doesn’t sound like a “small, independent, and traditional” beer – especially when considering the fact that it is backed by one of the world’s largest companies in Wal-Mart. And, we are guessing Genessee doesn’t offer Trouble Brewing tours and flights of the entire Trouble Brewing line over a game of cornhole.

It should be noted that the Trouble Brewing beers do not specifically identify themselves as “craft” on their packaging. However, as a senior buyer for Wal-Mart told the Chicago Tribune in an interview, “We were intentional about designing a package that conveyed a look and feel you’d expect of craft beer.” If only catchy packaging were all it took to make a craft beer.

As avid beer drinkers, we are certainly sensitive to craft beer deception. As such, we can empathize with the plaintiffs on this ground. As defense lawyers, though, we must assert assumption of risk as an affirmative defense. Something about Wal-Mart and the purchase of craft beer just doesn’t sound right in the first place. With so many craft breweries, growler stations, and local bottle shoppes popping up on every street corner, it has never been easier to pick up a craft brew. Wal-Mart certainly isn’t the place we would think of when it comes to trying out a new beer.

Virtual Reality Headsets: Fun New Toy Or Liability Nightmare?

Being a kid at heart, I always hopeful that my Christmas gifts will include a toy. Knowing that to be the case, my parents delivered this year by gifting me a virtual reality headset. Admittedly, I was perplexed when I opened the present. I was aware of the concept – a stereoscopic display and head motion tracking sensors, immersing users in a virtual reality experience – but I did not comprehend the appeal. I assumed the VR experience would have about as much flare as 3D, the first five minutes of fun is outweighed by the doldrums of wearing a pair of ridiculous glasses. But, hey, I got my toy. Why not give it a shot?

Well, I did. Now, I totally understand the VR appeal. Without getting into all of the technical (which I admittedly don’t understand anyways), VR delivers in all of the ways that 3D does not. While 3D movie watching gives added depth of picture and certain effects that “jump out” at the audience, VR puts the user directly into the scene. The problem with 3D alone is that regardless of the effect, the audience is always watching the film on a flat, two-dimensional screen (even if it is a really, really big IMAX screen). VR takes away that limitation, giving the user a full 360 degrees of 3D viewing pleasure.

Technology aside, the biggest draw of VR is the vast array of content. On my first day of use, I cage-dived with great white sharks off the coast of South Africa, walked through the streets of Paris, participated in a fight with the Suicide Squad, and stood in a dinosaur habitat in Jurassic Park – from my living room. Chances are that if there is something you want to see or do, there is probably a virtual experience waiting for you with a VR headset.

As great as the experience has been (and still is), the lawyer in me just had to come out after a few days of use. What are the risks/liabilities of using a VR headset? How are these VR headset manufacturers going to be sued? I am not talking about a slip and fall on the virtual Champ Elysees. But, what are the potential health effects of using VR? The product comes with a long list of warnings both in the box and on-screen upon every startup about dizziness, nausea, not to be used by children under 13, etc. But, something tells me that will not be enough. At this time, the long-term effects of using VR are unknown and could be an issue down the road. Only time will tell.

For now, I am going to continue to enjoy the experience. As with anything in life, we assume moderation if the best course of action. How many adventures do we really need each day anyways?

South Carolina Supreme Court Provides Guidance On Reserving Rights

Today, we here at Abnormal Use take a brief hiatus from the realm of product liability todiscuss a recent decision from the South Carolina Supreme Court which will significantly impact insurers doing business in the state. The case, Harleysville Group Ins. v. Heritage Communities, Inc., et al., No. 2013-001281 (S.C. Jan. 11, 2017), is  a lengthy decision addressesing, for the first time in South Carolina, the content of reservation of rights letters. While the opinion also discusses the time on risk allocation for damages awarded under a general verdict and coverage for punitive damages, it is the discourse on reservation of rights letters that needs closer scrutiny.

As with most significant South Carolina insurance coverage matters in recent times, Harleysville arises out of two construction defect lawsuits. A little background is necessary. The underlying lawsuits involved the construction of two condominium developments constructed between 1997 and 2000. After construction was complete and the units were sold, the purchasers became aware of certain construction deficiencies and filed suit against Heritage Communities (and several subsidiary companies), the entities who developed and constructed the developments.

During the period of construction, the Heritage entities were insured under CGL and excess liability policies issued by Harleysville. Heritage was uninsured after its last policy lapsed in 2001. After receiving notice of the lawsuits, Harleysville agreed to defend the Heritage entities under a reservation of rights. According to the Court, Harleysville’s reservation of rights consisted of “generic states of potential non-coverage” coupled with a cut-and-paste of most of the Harleysville policy language. Nonetheless, Harleysville continued to provide a defense to the Heritage entities through trial. In each case, the jury returned a general verdict in favor of the plaintiffs, awarding both actual and punitive damages. Thereafter, Harleysville filed a declaratory judgment action seeking a declaration that it had no duty to indemnify Heritage for the verdicts. In the alternative, Harleysville sought an allocation of which portion of the juries’ verdicts constituted covered damages and whether those portions were subject to a time on risk allocation.

The declaratory judgment action was referred to a Special Referee. After staying the matter pending the South Carolina Supreme Court’s decision in Crossmann, 717 S.E.2d 589 (2011), the Special Referee determined that Harleysville failed to properly reserve its rights to contest coverage. As such, he found that coverage was triggered under the Harleysville policies because the general verdicts included some covered damages. While the Special Referee presumed that the verdict included certain non-covered damages (e.g. the repair/replacement of faulty workmanship), he determined it would be improper and speculative to allocate the general verdicts. As such, he ordered that the entirety of the actual damages was covered under the Harleysville policies, subject to Harleysville’s time-on-risk. In addition, the Special Referee held that the punitive damages were also covered under the policies. The parties subsequently filed cross-appeals.

The Court began its analysis with a review of Harleysville’s reservation of rights letters. The letters, sent in 2003 and 2004, explained that Harleysville would provide a defense, identified the insured entities and the lawsuit, summarized the allegations, and identified the policy periods for the policies. In addition, the letters contained 9-10 pages of policy provisions, including the insuring agreement, exclusions, and definitions. However, the letters contained no discussion of the various provisions or explanation of why Harleysville was relying on them. Except for the claim for punitive damages, the letters did not specify the particular grounds upon which Harleysville disputed coverage. Finally, the letters advised the insureds of potential uninsured exposure and recommended that the insureds consider retaining personal counsel. Also of note to the Court, the letters did not advise the insureds of the need for an allocation of damages between covered and non-covered losses, nor did they reference any potential conflicts of interest or notify the insureds of Harleysville’s intent to pursue a declaratory judgment action.

The Court affirmed the Special Referee’s finding that Harleysville properly reserved its rights as to punitive damages but failed to properly reserve rights to contest coverage for the general verdict. In doing so, the Court noted that a reservation of rights must provide the insured with sufficient information to understand the reasons the insurer believes the policy may not provide coverage. A generic denial of coverage with a verbatim recitation of all or most of the policy provisions is not sufficient. Instead, the insurer must alert the insured to the potential that coverage may be inapplicable; that conflicts may exist between the insurer and the insured; and that the insured should take steps necessary to protect its potentially uninsured interests.

Having found that Harleysville’s reservation was not sufficient, the Court, relying primarily on case law from other jurisdictions, engaged in a lengthy discourse of the requirements of a proper reservation. Significantly, the Court stated that:

  • A reservation must be unambiguous. (citing World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 695 S.E.2d 6 (Ga. 2010)).
  • Prior to undertaking the defense, the insurer must specify in detail any and all bases upon which it might contest coverage. (citing Desert Ridge Resort LLC v. Occidental Fire & Cas. Co. of N.C., 141 F.Supp.3d 962 (D.Ariz. 2015)).
  • A reservation of rights letter must give fair notice to the insured that the insurer intends to assert defenses to coverage or to pursue a declaratory judgment at a later date. (citing United Nat’l Ins. Co. v. Waterfront N.Y. Realty Corp., 948 F.Supp. 263 (S.D.N.Y. 1996)).
  • Because an insurer has the right to control the litigation, an insurer has a duty to inform the insured of the need for an allocated verdict as to covered and non-covered damages. (citing Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602 (Minn. 2012); Magnum Foods, Inc. v. Cont’l Cas. Co., 36 F.3d 1491 (10th 1994)).

The Court placed significant emphasis on the fact that an insurer has the right to control the defense and, thus, must keep the insured informed of all potential coverage issues to avoid prejudice. In the Court’s view, one of the primary deficits in the Harleysville reservation of rights letters was the lack of notice to the insured of the need for an allocated verdict as between covered and uncovered claims. Unfortunately, the Court does not expressly state who has the burden of actually seeking the allocation. Some of the language in the opinion seems to place the burden on the insured: “…in no way did the letters inform . . . [the insureds] that they should protect their interests by requesting an appropriate verdict.”  Other language, however, seems to place the burden on the insurer: “. . . an insurer typically has the right to control the litigation and is in the best position to see to it that the damages are allocated . . .” If the burden does, in fact, rest with the insurer, this decision should provide strong ammunition in support of an insurer’s  motion to intervene — which, in the past, South Carolina courts have generally disfavored. 

 Based on Harleysville, insurers must exercise special care when issuing reservation of rights letters.  At a minimum, reservation of rights letters should provide unambiguous notice to the insured of the following:

  • the specific issues raised in the underlying litigation or claim giving rise to the coverage dispute, including the particular grounds upon which coverage;
  • any potential conflicts of interest between the insurer and insured;
  • the intent to pursue a declaratory judgment, if applicable, in the event of an adverse jury verdict; and
  • the need to obtain a written explanation of the jury award that identifies the claims or theories of recovery actually proved and the portions of the award attributable to

Failing to provide a sufficiently specific reservation of rights may result in the insurer being precluded from disputing coverage.  With regard to covered and non-covered claims, because the Court has not expressly stated who has the burden of seeking an allocation/clarification from the jury, it is probably more prudent for insurers to take affirmative steps to protect their coverage position absent further guidance from the Court.

(Hat Tip: Jennifer Johnsen).

New Suit Alleges Popeyes Served Up Flesh Eating Screwworms

According to a report from the NY Daily News, Texas woman Karen Goode has filed suit against Popeyes Louisiana Kitchen, alleging that the fast food chain served her a helping of flesh-eating worms. Specifically, Goode alleges that some rice and beans she ordered from a San Antonio location were invaded by Cochcliomyia hominivorax, otherwise known as “New World screwworms.” Of course, Goode unknowingly ingested the worms, and then:

The flesh eating screwworms entered the Plaintiff’s digestive track, laid eggs which embedded in the interior lining of Plaintiff’s small intestines, and when hatched, infested Plaintiff’s body and began to eat Plaintiff alive from inside-out.

In addition to being consumed by flesh-eating worms, Goode also alleges that she injured her neck, shoulders, and arms. She seeks damages in excess of $1 million.

We here at Abnormal Use often write of fast food-related lawsuits. This is the first involving flesh eating screwworms. Nonetheless, the questions are the same. First, assuming the allegations have merit, how did New World screwworms get into the rice? The United States was thought to be free from New World screwworms by the early 1980’s. However, recently, there have been reports of a screwworm outbreak affecting deer in South Florida. However, to our knowledge, human exposure has been rare in recent years.

Second, how did Goode not realize her rice was infested with screwworms? New World screwworms are approximately 8-10 mm in length. While admittedly a bowl of rice can be deceptive when it comes to spotting larvae, the thought of mistaking a grain of Popeyes rice for a screwwworm is troubling. Probably not something Popeyes wants to put in its next advertisement.

But the biggest question facing any food contamination case of this type is how does Goode know that she encountered the screwworm at Popeyes and not something else she ate/came in contact with? Goode’s complaint does not state exactly when she discovered the screwworms, so it is unknown at this point whether Goode actually observed the worms in the rice at any point. If not, Goode may face an uphill battle. Presumably, if Popeyes had an issue, the screwworms would not have been confined to Goode’s meal and this would not be an isolated event. For the love of San Antonio, let’s hope that is the case.

McDonald’s Hit With Value Meal Pricing Suit

We here at Abnormal Use have discussed many McDonald’s lawsuits over the years. Most of those suits involved hot coffee spills and often led to heated discussions over a producer’s liability for serving products in the manner nature intended. While those discussions were certainly interesting for us legal nerds, none were necessarily as critical to the fabric of our society as the most recent suit filed against the fast food giant. As reported by the Chicago Tribune, a new suit, which seeks class action status, has been filed against McDonald’s alleging that the company has committed fraud and deceptive trade practices through the pricing of its Extra Value Meals. Specifically, Plaintiff Kelly Killeen alleges that she purchased a Sausage Burrito Extra Value Meal at a downtown Chicago McDonald’s. Killeen paid $5.08 for her meal. However, a review of the menu revealed that had Kielleen purchased the meal (comprised of two burritos, hash browns and a medium coffee) a la carte, the meal would have cost $4.97. And, Killeen is none too pleased with being deprived of 11 cents, apparently.

Killeen’s suit follows a similar lawsuit filed in December alleging that 10 Illinois McDonald’s overprice the Two Cheeseburger Extra Value Meal by about 50 cents. That suit also seeks class action status.

While it may not have been discussed on the campaign trail, value meal pricing is a real issue for those of us that actually pay attention. From fast food restaurants to concessions at movie theaters and sporting events, the “value” of a pre-grouped meal is often minimal, if not non-existent. Whether it is fraud or just good sales psychology, we will leave that question for the jury. Regardless, it remains an issue we should all be conscious of as consumers. With that said, don’t count on us to join the class. Even though we loathe value meal pricing, we routinely order value meals. The reason – it is easy and convenient regardless of whether it makes economic sense. Ever try to order from a drive-thru for a bunch of kids in the backseat? The goal is just to make it through. In that situation, ordering by number will always outweigh the economic benefit of a la carte. So, McDonald’s, yes, you can keep our 11 cents.

As Predicted, Distracted Driving Lawsuits Come Full Circle

Last year, we discussed a lawsuit filed in Georgia against Snapchat for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the social media application. In discussing the liability of product manufacturers in suits like this one, we offered the following concerns:

[W]e must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right?

As we expected, those words would deem prophetic.

Recently, a lawsuit was filed in California against Apple because a Texas man was using FaceTime on his iPhone 6 Plus while driving when he rear-ended a vehicle in December 2014 and killed a 5-year old girl. The driver admitted using FaceTime and later found himself indicted by a grand jury on a manslaughter charge.  As for Apple’s responsibility, the family alleges that the company “failed to install and implement the safer, alternative design . . . to ‘lock out’ the ability of drivers to utilize the ‘FaceTime’ application on the Apple iPhone while driving a motor vehicle.” Moreover, Apple allegedly “failed to warn its users that its product was likely to be dangerous when used or misused in a reasonably foreseeable manner.”

In full disclosure, the company apparently applied for a patent for the “lock-out” technology in 2008 and had the patent issued in December 2014 (Ed. Note – It is uncertain whether the patent was issued before or after the December 2014 accident date, whether Apple actually developed the technology, and, if so, whether it could have been implemented prior to the accident). Nonetheless, our question is should it matter?  As we questioned last year in regard to the Snapchat lawsuit:

Even if the accident is foreseeable, isn’t a lawsuit such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

Now, we can replace “speed filter” with “FaceTime,” and the question still remains – who is really responsible for a distracted driving accident?

Holiday Lawn Decorations: Family Fun or Lawsuit Fodder?

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Every December, we  decorate our house in traditional garb – a wreath on the front door and some garland around the mailbox. Simple, not over-the top. With small children, however, conservative decorations equates to no decorations at all. The children would much prefer a Griswold-esque display, including thousands of lights and giant inflatables.

In the past, I have been hesitant to give in to their demands. This year, however, I decided to compromise. I purchased a projector that uses lasers to cover the house in thousands of colored, chasing lights. The kids love it and the installation required almost no effort on my part and doesn’t litter my house with strings of light cables. Call it a win-win. But not unexpectedly, the addition of the projector opened the door to new demands – giant inflatables, music, laser light shows. After all, once you have broken the seal of tacky Christmas decorations, why not just go all the way?

As much as I really want to generate enough electricity through my lawn decorations to power a small village, the risk aversion developed through the practice of law is holding me back. It is not just the risk of fire from the overloaded power circuits that gives me pause. It is the neighbors, the HOA’s, or the city itself – the people who actually have to experience all the “joy” my lawn display has to offer. For example, consider Plantation, Florida residents Mark and Kathy Hyatt, who have been putting over 200,000 lights in their yard and on their house every year since 1990. They were sued by the City of Plantation back in 2014 for allegedly creating a public nuisance and safety hazard. (The Hyatts ultimately prevailed in the suit). Or, West Palm Beach resident Miriam Galan who was recently sued by some neighbors not too pleased with her light display complete with a dancing and singing Santa. As much as I want 10′ inflatable Santa, I just don’t know if I am willing to fight for it in a court of law.

Risk aversion aside, this time of year is meant to be fun and festive. Assuming decorations don’t violate any covenants and restrictions, why not just let the month of December be a time to let loose? Throw those lights up. Run up that power bill. Let’s have some fun. Admittedly, I, too, would’t be my happiest self when flashing lights and a singing Santa start interfering with my sleep. But, I can certainly cope for a month. And, I certainly wouldn’t make a holiday lawsuit out of it.

Virgin Australia Hit With New Coffee Lawsuit: No, This Isn’t Like Stella Liebeck

According to a report from Travel & Leisure, Virgin Australia has found itself on the wrong side of the newest hot coffee lawsuit. The suit, filed in Victoria, Australia, apparently arises out of an incident involving 16-year old Rhett Butler (not of Gone With the Wind fame) while on a Virgin flight from Los Angeles to Sydney in May 2015. Shortly after take-off on the 15-hour flight, Butler’s cup of coffee allegedly fell from his tray table onto his lap, causing burns to his thighs, groin, genitals, and midriff. The flight crew allegedly did not have enough bandages to treat the wounds, so the Butler family was “forced” to use their own. Moreover, the suit alleges that the flight crew only had two ice packs and stopped supplying Butler with water bottles to ensure they had enough for the first class passengers. According to the report, Virgin Australia has confirmed that the incident occurred but offered no further comment.

As is often the case, we assume that many media reports on this incident may jump to inapt comparisons to the infamous Stella Liebeck case. From what little we know about this case, it appears that the two are apples and oranges. What made the Liebeck case so very intriguing from a legal perspective was that Liebeck sought to and was successful in holding McDonald’s liable for serving an “unreasonably dangerous product.” In other words, the jury found McDonald’s liable for serving coffee that it deemed too hot (something about which we’ve written a time or two).  Here, at least according to the information contained in the reports, Butler seeks to hold Virgin Australia liable, not due to the temperature of the coffee, but due to the conditions that caused the spill.  Specifically, Butler alleges that the airplane’s tray table lacked a recess to hold a cup and was defective and pointing down towards the passenger.

We here at Abnormal Use are interested to see how this one plays out. Regardless of the future outcome, we hereby grant the suit a reprieve from our typical criticism of prior hot coffee litigation. And, that’s a good thing. Even for us, there are only so many times we can say, “coffee is meant to be served hot.”