New Year, New Hot Coffee Case

Twenty one years ago, Stella Liebeck spilled what became the world’s most famous cup of coffee. Two years ago, we here at Abnormal Use started writing about her famed litigation against McDonald’s.  Our FAQ file on the litigation and our commentary on the subsequent Hot Coffee documentary created quite a buzz in the blogosphere. (In fact, those posts are still drawing comments two years later). What about a cup of coffee spilled in New Mexico more than two decades ago is so important that we are still talking about it today?

For starters, history keeps repeating itself.  So we have to keep writing about it, right?

According to a report from The Louisiana Record, a Louisiana woman is suing Burger King over burns she allegedly sustained by a cup of the fast food chain’s coffee. The woman alleges that a Burger King employee handed her the coffee through a drive-thru window. When the cup’s lid dislodged, the coffee spilled and allegedly caused serious burns to her arm, chest, and stomach. The woman claims that Burger King failed to properly secure the lid and served coffee at an extreme scalding temperature. Feel like you have heard this story before?

This case remains in its infant stages, so not much is known about the validity of the woman’s complaints. Nonetheless, we all know how this one likely will play out. Again, hot coffee cases are nothing new. In fact, many hot coffee claims predated Stella Liebeck – the McDonald’s case was just the first of a very few cases to see the inside of a courtroom. Based on this precedent, we doubt Burger King and the Louisiana woman will be heard by a jury of their peers, although we suppose that may depend on when the lid dislodged and if the employee was handing it to her as it did.

We’ll see. What is the meaning of all of these hot coffee claims some 20 years after Stella Liebeck? The plaintiff’s bar would have you believe that the Liebeck verdict was a mandate, now ignored, for restaurants to cease serving an “unreasonably dangerous” product. Others, including the writers here at Abnormal Use, will continue to argue coffee is meant to be served hot and, despite the numerous lawsuits, makers and consumers of coffee share this belief. Despite the threat of litigation, people will continue to demand that their coffee be served hot. The debate will rage on.

Before accusing us of spreading dirty corporate information, let us reiterate that we recognize both sides of the issue. You will not hear us questioning the seriousness of Liebeck’s injuries or the temperature of her coffee. Liebeck and many of the plaintiffs that followed sustained significant injuries caused by hot coffee. We do not question these facts. We simply believe that this is a liability issue. Coffee is meant to be served hot, and plaintiffs want it that way – until it is spilled. The latest coffee case will not be the last. As long as people keep drinking hot coffee, restaurants will continue to serve it that way. And, if people keep drinking liquids, spills will ensue. And lawsuits will happen, apparently.

First Hot Coffee, Now Hot Tequila?

Nearly everyone knows of the infamous McDonald’s hot coffee lawsuit.  For those of you who have followed the Abnormal Use law blog for a while, you know that we have covered the topic in great depth (a/k/a ad nauseam).  Well, now, there’s a new spin on this old classic.  Hot tequila!  That’s right: An Ohio man is suing a bar for allegedly serving him a shot of tequila that was mixed with extract from one of the spiciest peppers in the world.

Brady Bennett filed suit against Adobe Gila’s at The Greene in Beavercreek, Ohio,  alleging that a bartender negligently served him a shot of tequila with ghost pepper extract.  According to Bennett’s attorney, Bennett and his friend were out for a night on the town when the bartender offered them a round of shots.  Bennett claims the group ordered a manly round of tequila shots with apple flavoring, but Bennett alleges that the bartender gave them the old switch-a-roo with the ghost pepper extract.

Upon taking the shot, Bennett allegedly fell to the ground in pain as his throat swelled shut.  He was taken to the hospital and was ultimately just fine.

So what exactly is ghost pepper extract? Ghost pepper extract is one of the hottest peppers short of weapons grade pepper spray.  Pepper spray comes in between 2 to 5 million on the Scoville scale.  Ghost pepper, which is actually intended for use in foods and not incapacitating criminals, comes in right behind at just under 1 million on the scale.   By comparison, a jalapeno pepper is only around 10,000 Scoville units.

Serving a ghost pepper shot to a patron without a warning would certainly qualify as negligence.  However, the claim seems a little suspect.  It’s not like we are talking about Tabasco sauce.  What bartender would a) have ghost pepper extract handy at the bar and b) think to put it in shot?  Maybe the bartender was Loyd Christmas from Dumb and Dumber.  According to the restaurant’s owner, they don’t even stock ghost pepper extract at their facilities.  He did, however, admit that there may have been hot sauce in the shot.

Apparently, in addition to damages for medical expenses, Bennett also seeks damages for some real intense pain and suffering.  Bennett’s attorney told the Dayton Daily News, “Over the course of the next two weeks, when he has to go to the bathroom, it is an excruciating experience.” Ouch.

 

Tonight: Susan Saladoff Brings “Hot Coffee” to Charlotte, North Carolina

Over the past couple years, we here at Abnormal Use have written a great deal about hot liquid product liability cases.  Just this week, we reported on hot soup in a school cafeteria.  Last week, we told you about the case of the hot tea on an airline flight.  We have even kept you abreast on hot coffee litigation nationwide.  And, of course, the genesis of it all – Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee.

Now, it all comes full circle as Saladoff has come to our backyard.

Tonight, from 7:00 to 9:00 p.m. at the EpiCenter Theater in Charlotte, North Carolina, you can attend a screening of Hot Coffee followed by commentary from Susan Saladoff.  The screening is sponsored by the Mecklenburg County Bar Association.  There is no cost to the general public or for attorneys not seeking CLE credit.  For those who would like 2 general hours of CLE credit, the cost is $90.

You may remember Saladoff cancelled an interview with Abnormal Use just prior to the release of Hot Coffee. We wrote at length about her background as a plaintiff’s attorney and her potential bias as a filmmaker covering the infamous Stella Liebeck McDonald’s hot coffee case litigation.  Maybe tonight, we may get the chance to finally meet her and ask her some questions.  We will be sure to report on our experience.

Unreasonably Dangerous Soup? Litigation From A School Cafeteria

We here at Abnormal Use often write about hot beverage litigation. Just last week, we reported on the tale of the hot tea and the airplane.  And, of course, we are no strangers to the McDonald’s hot coffee case.  Most of these hot beverage lawsuits share a common hurdle – the liquid at issue is intended to be served at temperatures the plaintiff’s later deem “unreasonably dangerous.”  If a consumer demands his beverage to be served hot, he shouldn’t be able to sue the restaurant for meeting his expectations.

But what happens when the hot liquid is a cup of soup?  And the consumer is an young old girl in a school cafeteria?

In Wisconsin, an 8-year old girl has sued the Beloit Turner School District over burns she sustained by a cup of soup served by the cafeteria staff at Powers Elementary School.  According to the Janesville Gazette, the complaint alleges:

The hot soup was placed on the girl’s lunch tray. She began to carry her tray to another table, but someone bumped her, and the tray tipped, causing the hot soup to spill onto her left forearm and cause injuries.

Further, she alleges that the School District and its cafeteria staff were

[N]egligent in serving a substance at an unsafe temperature to an 8-year-old child, were negligent in failing to properly instruct its students on how to carry the unsafe substance, failing to properly warn its students of the unsafe substance and the dangers thereof, and failing to properly supervise its employees, agents and students at all times material to this complaint.

At this time, there is no information regarding the temperature of the soup.

As an initial matter, this case is clearly distinguishable from many of its hot beverage predecessors.  First, the plaintiff is a minor and doesn’t share the same degree of culpability for assuming the risk of her food choice (if she actually had one).  Second, she was required to transport the hot soup on a lunch tray through the cafeteria – a scenario that can lead to spills.  As a result, this case could find itself in the hands of a jury.

Nonetheless, a bowl of soup shares one thing in common with a cup of coffee.  Even in a school cafeteria, soup is expected to be served hot.  If not, parents would undoubtedly be complaining at the district office.  While we do not know the actual temperature of the soup served, the school district should not be found liable solely on the basis of serving “hot” soup.

As stated above, this case is unique in that it involves a minor in a school cafeteria.  Obviously, the school has some duty to look out for the safety of students.  But how far should that duty extend?  This is not a case about a corporation allegedly sacrificing safety to protect its profit margin.  School districts all across the country are in dire straits financially.  Should we really require that they provide warning labels on its soup bowls?  Or, will a simple verbal warning suffice?

Certainly, this case presents some novel issues for the hot beverage (or food) progeny.  We will be sure to keep you posted as more information surfaces.

Hot Beverage Lawsuits Reach New Heights

Hot beverage litigation lore now has a new chapter – “Tea, Airplanes, and Bulkhead Seats.” According to The City Paper, a Tennessee woman, Angelica Keller, has sued Southwest Airlines after spilling hot tea in her lap mid-flight. Keller spilled the beverage when attempting to pry loose a tea bag wedged between two cups. Apparently, Keller was seated in the first row of the plane, so she did not have an available drop down table to rest the cups. Before she could unbuckle her seat belt and stand up, the hot tea spread around the seat cushion, allegedly causing her second degree burns. Thereafter, she filed suit against Southwest, alleging that the airline failed to warn her of the hazards of delivering a hot beverage during a flight in a bulkhead seat.

On the one hand, this matter sounds eerily similar to the infamous McDonald’s hot coffee case. Passenger injured while holding a hot beverage in her lap. Burns exacerbated by sitting in the liquid. Facially ridiculous lawsuit to follow. Abnormal Use picking up the story.

On the other hand, this case does have some intricacies that may distinguish it from its coffee predecessors. Notably, due to her mode of transportation, the plaintiff was under the control of the defendant. It is at least arguable that the accident could have been prevented had Southwest provided tables for the bulkhead seats. Moreover, unlike the consumer who purchases hot coffee and is free to go wherever he chooses, an airline passenger confined in a packed seat thousands of feet in the air has no such luxury.

Unlike the hot coffee cases which allege that restaurants are serving an unreasonably dangerous product, this suit alleges that Southwest is negligent for serving hot liquids on a potentially turbulent flight. An interesting concept, that is. Interestingly, the plaintiff does not appear to allege that the spill was caused by turbulence, but rather, by her own conduct.

Regardless of their differences, this suit has one glaring similarity to the hot coffee cases before it – the beverages are meant to be served hot. Users should assume the risk of burns when handling a known (and desired) hot liquid.

Woman Sues McDonald’s, Ex-Husband for Turning Her Into a Prostitute

Once again, McDonald’s finds itself drug into the court system.  But this time, the lawsuit has nothing to do with piping hot coffee.  According to reports, Shelley Lynn has filed suit in a California federal court blaming the fast food chain and her ex-husband, Keith Handley, for turning her into a prostitute.  This is not the type of success story McDonald’s typically promotes on its employment applications.

Before we jump to conclusions, there does not appear to be any evidence McDonald’s required the former store clerk to add new meaning to the term “Happy Meal.”  Rather, Lynn claims McDonald’s negligently supervised and retained Handley, who owned a franchise 20 years ago.  According to the complaint, Handley hired Lynn in 1982 as a counter person.  The two started dating in 1985.  Thereafter, Lynn revealed her dream of becoming a Vegas showgirl.  To help her achieve that ambition, Handley reportedly bought Lynn a house in Vegas.  Handley then allegedly pressured Lynn to find a job in a Vegas brothel to help pay for the home.  Succumbing to pressure, Lynn claims she found a job in 1986 at the Chicken Ranch where she became a “top booker.”  She married Handley in 1988, but the two later divorced.  There are no indications from the reports as to how long Lynn claims she remained a prostitute.

We must question how McDonald’s became a player in this lawsuit.  First, we are aware of no evidence at this time that McDonald’s knew or should have known that Handley was a potential sex trafficker.  Lynn alleges in her complaint that McDonald’s did not have a proper procedure for reporting grievances.  However, the only grievance she mentions is an incident where she was allegedly fired for insubordination.  There were no indications that the insubordination arose out of her apparent hesitancy to become a prostitute.  In fact, it appears, at least from the complaint, that Handley allegedly pressured her to enter the business only after she moved to Vegas – when she was no longer a McDonald’s employee.

Second, Lynn will have difficulty showing that it was reasonably foreseeable McKinney would hire an employee, start dating her, move her to Vegas, and force her to become a prostitute.  There’s probably a law school examination question in these facts somewhere. Sure, McDonald’s probably doesn’t want to start a pattern of franchise owners engaging in intimate relationships with employees.  But a relationship by itself is not a grounds for liability in this case.  The issue is whether it was foreseeable McKinney would allegedly force Lynn into prostitution.  There are no allegations of this conduct with any other employees.  The conduct occurred after the period in which Lynn was employed by McDonald’s.  The conduct did not take place on McDonald’s property.  While we here at Abnormal Use are not judges, this doesn’t exactly sound like a case of negligent supervision/retention.

Another Note on Civility – Legal Blogging Edition

We here at Abnormal Use have been doing this blogging thing for about two years now, and we still love it.  One thing we love in particular are comments from our dear readers.  Without you, we would not enjoy this enterprise nearly as much (and, without you, of course, there would be no reason to do it).  We also enjoy good-natured debates with those with whom we disagree.  One of our fondest memories from our college days is getting together with intelligent people with differing views and backgrounds and debating the issues of the day, whether they be political, legal, or social.  You can learn something when you engage in constructive debate with someone who disagrees with you.

Certainly, one of our frequent topics of discussion is the infamous and controversial Stella Liebeck McDonald’s Hot Coffee case.  Our posts on that topic have generated much debate.  Our review of Plaintiff’s attorney Susan Saladoff’s Hot Coffee documentary earned 30 comments, while our initial preview of the film and highlighting of Ms. Saladoff’s background as a trial lawyer received 25 comments.  Our objective FAQ file, which we assembled using the original pleadings, motions, and contemporary news coverage of the case, drew seven comments.  Even the post we authored calling for Ms. Liebeck’s attorney Reed Morgan produce the trial transcript of the case merited 11 comments.

And there’s more.  Even though some of these posts are months old, or even a year old, they continue to receive comments to this day.  Even our post commenting upon Ms. Saladoff’s appearance on “The Colbert Report” still gets a comment or two months later.  One such comment to that post, submitted by a Houston lawyer in late January, is as follows:

I’m amazed at the extent to which your law firm, years later, continues to cheer for a team that lost at the expense of public faith in a justice system that worked — whether you agree that it worked, or whether it serves you in particular, or not. There are salient facts on both sides of this issue. Yes, the coffee was very hot. Yes, she sat in it for 90 seconds. Yes, people should know coffee is hot. And yet, McDonald’s knew its coffee was dangerously hot and callously treated the risk to Ms. Liebeck as a mere cost of business. All of this evidence was heard by the factfinders, the jury. What matters now is that the factfinders heard the evidence — from both sides — and made a decision based on the evidence and the law it was charged to apply. As a member of the bar who has taken the same oath that (I presume) the attorneys in your firm have also taken, I think your continued biased commentary is irresponsible. I’m not saying that you don’t have a constitutional right to say it (questions regarding attorney ethics rules notwithstanding); you probably do. But I think you’re doing more harm than good to our legal system by doing so, and it’s ethically and morally irresponsible to continue to cry about how this jury was wrong and our system is broken simply because they dared to conclude differently than you would have them conclude. I would expect your biased editorialism from a college newspaper, not accomplished members of the bar.

Gee whiz.  For one, if every jury verdict is sacrosanct and immune from criticism of any kind, that’s going to put a lot of appellate lawyers out of business. Sure, we expect criticism and disagreement; that’s part of putting ourselves out there in the legal blogosphere. But our analysis and commentary on an infamous jury verdict is “irresponsible”?   Possibly unethical? Really? Can we no longer analyze and have some fun re-litigating a case which appears to have been misrepresented in the media by those from varying backgrounds, and before our acquisition of the pleadings and motions, discussed for years without reference to the original underlying documents? It’s harmful to our legal system to look back at reevaluate some of the decisions made by the lawyers, the trial court, and the jurors and gauge whether they were right or wrong? Must we consider those jurors infallible?

Sigh. I guess that’s what we get for engaging in this blogging thing. (And by the way, “biased editorialism”? Is there any other kind?)

Or, maybe we just hit a nerve and our making some points that those who have a vested financial interest in the jackpot justice system would prefer that we not make.

Tables Turned: The Legend of Hot Coffee Continues

Over the last year, we have written ad nauseum about hot coffee-related litigation.  Time and time again, consumers of the brewed beverage have sued fast food chains after suffering burns from what Plaintiff’s lawyers insist is an “unreasonably dangerous product.”  Apparently, one consumer has turned coffee into something other than a litigation golden ticket – a weapon.

According to Cincinnati.com, 50-year old Lamar Bond was dining at a McDonald’s restaurant in Cincinnatti, Ohio.  Following an argument, Bond threw a cup of hot coffee and a biscuit at a female McDonald’s employee, striking her in the face.  Thereafter, Bond fled.  Police records did not disclose whether the employee suffered any injuries.

We don’t know the source of the argument, but we will be keeping tabs on this case. In light of all of the hot coffee litigation over the past two decades, we wonder what positions will be taken by the parties in any criminal proceeding arising from this assault and/or any workers compensation hearings prompted by this on the job injury.

But something strange is going on in Ohio. Two weeks ago, according to CBS News, Cincinatti police responded to a separate incident at an IHOP in which a woman was hit in the head with a coffee pot.  At this time, we here at Abnormal Use do not know whether these should be considered incidents isolated to the Cincinnatti area or the beginning of a nationwide movement.  Maybe we should have seen this coming. If courts keep throwing out hot coffee suits, something needs to be done right? Alas, let the people rise up against coffee served hot!

SmartLid Offers New Version of Same Old Product

SmartLid Systems recently unveiled a new disposable coffee cup lid which changes from a dark color to a light color when introduced to heat. The lid is supposed to make it easier on consumers to know when their coffee is hot without the hassle of reading warning labels. A novel idea, to be sure.

While we all like to rely on color changing plastic, we here at Abnormal Use question whether the lid is superior to those pesky warning labels they are designed to replace. According to the company’s website, the “color changing lid works in a universal languge, COLOR!” SmartLid may want to rethink this “unversal” strategy. First, not all people distinguish between the full rainbow of colors we have come to know. For example, how can the lid account for colorblindness? After all, a common symptom of colorblindness is the inability to distinguish between different shades of the same color. Maybe these people don’t fit within SmartLid’s definition of universal.

Second, SmartLid does not even succumb to its own “universal” business model. If heat has a universal color, we imagine it would be “red.” Water faucets differentiate between hot and cold with the colors red and blue, respectively, almost anywhere you go. SmartLid, however, has not adhered solely to the “red is hot” philosophy. SmartLid advertises that it can create the lid in a variety of color options to incorporate a company’s existing brand colors so long as the hot color is lighter than the cold color. How is the customer to know which color means hot?

To alleviate this problem, the rim of the SmartLid remains its cold-state color even after the lid transitions. If customers are not fully informed about the functioning of the SmartLid, we doubt they would be able to recognize this distinction. Of course, SmartLid can always place a label on the lid to explain the transitions. And we thought these lids were supposed us to keep us from having to read.

As is the case with many gimmicks, the producers haven’t thought through all the perils of real life. According to SmartLid, coffee is to be brewed at 190 degrees, but shouldn’t be consumed until the temperature decreases. We assume the lids will change color at this temperature. As the coffee cools, the lid color transitions back to its original state – room temperature – without stopping to tell us when coffee is “safe” to drink. And how could it? Personal preference will always dictate what temperature you want to drink your coffee. Despite the lid, people will still test coffee the old-fashioned way – by sipping it.

There is nothing necessarily “wrong” with the SmartLid. Rather, the lid does little, if anything, to protect from the hazards allegedly associated with drinking a hot beverage. Whether it is a color changing lid or a warning label, the determination of whether to consume hot coffee rests with the consumer.

One Year Ago Today: The Stella Liebeck McDonald’s Hot Coffee FAQ

One year ago today on January 25, 2011, we first published our Stella Liebeck McDonald’s Hot Coffee Case FAQ post.  We are still proud of that piece, which we intended to serve as an objective accounting of the case using only the primary sources, pleadings, motions, and other court documents, as well as some contemporary media coverage of the case from 1994.  It is by far one of our most popular posts, and we suspect that it led to later citations in The New York Times and NPR. We have written a lot about that case since then, and we hate to dwell, so we would just direct your attention back to the FAQ file once more today, its birthday.

Coincidentally, in 2011, the Liebeck case reemerged in the mainstream media as a talking point, primarily due to the release of Plaintiff’s attorney Susan Saladoff’s would-be documentary, “Hot Coffee.” Apparently ignoring our objective accounting of the case, some have continued to promote the myth that McDonald’s serves an unreasonably dangerous product. Just this week, The Pop Tort blog set out on a campaign to highjack a McDonald’s Twitter promotion. The blog has encouraged its readers to utilize the company’s #McDStories hashtag to spread the word that “seriously injuring customers and then viciously fighting them in court . . .” is wrong. Or, in the alternative, you can tweet about meeting your spouse over a honey mustard dipped McNugget.

Of course, we are all entitled to our opinions. We just hope our FAQ file has helped provide you with some basis for them – whatever they may be.