It’s Cheese and a Lawsuit Against The Mouse

The Mouse takes great umbrage that someone would complain of the cheese he graciously bestows upon us. The Mouse takes great pride in his cheese. But as you can see here, here, here, and here, multiple news outlets and blogs have picked up the story of a recent lawsuit filed against Disney for the ancient tort of injury by Nacho. Unfortunately, this case features a real injury. Four-year-old Isaiah Harris became hurt when he found himself about to fall (from an unsteady chair, of course), grabbed a tray of food for balance, and suffered an encounter with a “paper cup of scalding nacho cheese.” Of course, like all hot food and beverage proceedings, this lawsuit conjures up the spirit of Stella Liebeck, her hot coffee lawsuit, and its progeny that have been well chronicled. So in light of all of that, what is the real significance of this lawsuit?

First, it’s amazing to see the public reaction to these lawsuits. Scroll down through the comments to the news stories and blogs to see thoughts from those who have absolutely no sympathy for the child and blame everything on the parents. The commenting public now automatically equates a hot food lawsuit with frivolity, which, lawyers who followed the Liebeck case know is not always the case. Ms. Liebeck probably did very well for herself, settling her case on appeal after receiving a substantial jury verdict. Nevertheless, some part of the public thinks that hot food lawsuits are frivolous and remain unafraid to air their personal grievances. Whether this is attributable to a vague conception of a litigation tax on products, or some other archaic conception of pure contributory negligence, would be a fairly boring subject for a sociology paper.

Second, not that the lawyer would need this, but it is interesting that the public can issue spot in such cases. Scroll through the comments and see the number of people that remark upon the picture of Isaiah, the probability that a paper cup of cheese would land precisely on his mouth (where it looks like he tried to drink the cheese), and posit their own version of the facts. Website comments now double as free jury research. My own personal issue-spot: Why didn’t anyone handling this paper cup of cheese notice the purported temperature?

Third, and getting to the legal matters at hand, it’s not clear to me what the reasonable expectation of the consumer would be in a case involving nacho cheese. It’s not at all clear to me that the subject nacho topping was actually cheese. Does a consumer have a reasonable expectation that his or her nacho topping is actually cheese? It would be perfectly appropriate for the plaintiff’s parents to argue that they assumed that the topping was an unnaturally viscous liquid-at-room-temperature cheese-like substance. If it was cheese, then we will likely need to look for a cheese expert from the American Cheese Society and perhaps attend the Sonoma Valley Opportunities and Challenges Cheese Conference for further education on a consumer’s reasonable expectation of cheese temperature. There is no doubt that this lawsuit will appear on the conference agenda as the public fallout from injury by cheese is a serious topic to consider.

Fourth, while we often call out plaintiffs’ lawyers on the blog, the plaintiff’s attorney in this case, one Sean Cahill, seems to be a legitimate defense lawyer, who belongs to several defense-oriented organizations, at least according to his website. Perhaps Mr. Cahill is simply trying to beef up his cheese liability practice. Who knows? We’ll see if The Mouse pays something on this suit. Anyway, next time you go to Disney World, test the nachos.

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