Before writing this post, I’ve made myself a sandwich, free of foreign material and animal products, with a short stack of lettuce, and which leans to the left. Of course I have named this creation the Dennis Kucinisandwich. I wish that Rep. Kucinich had been more courteous to me, as I did not have a chance to opine on his lawsuit before he went and settled it. Nevertheless, the economy still seems pretty bad in Cleveland, so I can’t fault him for taking the money.

I am talking about the olive pit case, of course, recently filed and settled by Rep. Kucinich from Ohio. Multiple news sites and blogs have lambasted Rep. Kucinich for his suit that claimed serious and personal dental injury. Rep. Kucinich even posted this release on his website, revealing some personal details about the effects of biting into an olive pit. Questions abound about Rep. Kucinich’s reasonable expectations of what comes in a sandwich wrap, especially being a long-time vegan, and, presumably knowing that olives naturally have pits. And before we engage in some deeper thoughts on the issue, we would invite you to comment with 2012 Presidential campaign slogans for Rep. Kucinich. Here are a few to get you started.

1) Olive (pronounced in a Southern Drawl “I – love”) Dennis
2) Vote Dennis. All others are pit-iable.
3) Kucinich – Building bridges (in my mouth)
4) I’m like you. I sue.

For some reason, people have a problem with the thought behind number 4, i.e, Rep. Kucinich exercising his right of access to the courts. Surely members of Congress have lots of resources and tremendous insurance, and Rep. Kucinich should have just taken care of this himself. Why? Putting aside our conservative, defense-oriented tint for a moment, why should he do that? Rep. Kucinich was injured by the fault of another and had a potential claim. Why shouldn’t he sue? The thought seems to be that a “rich” person should not litigate matters. (Not Mitt Romney rich, of course, but certainly Cleveland rich.) It’s not really clear that Rep. Kucinich was in a better place to bear the loss. After all, that is what insurance is for, to spread the cost of risk, and the cafeteria was surely insured.

I am at a loss as to why a litigious public would aggrieve Rep. Kucinich over doing what most other Americans would do. Rep. Kucinich represents a precinct in Ohio, where, I’m sure, people file lawsuits over personal injury. My take is that the perceived “outrage” over this “frivolous” lawsuit stems from the institutionalization of what a lawsuit is now. It is no longer a means to monetize losses or allocate damages to an injured party. Lawsuits are a means to gain power and money (with or without injury). Rep. Kucinich, being perceived as rich and powerful, is somewhat mocked for filing a lawsuit that, on the surface, seems to have some merit. He has no need to file a lawsuit, because he is already rich and powerful. Apparently, potential claims are no longer enough. There is in implicit requirement that personal injury lawsuits are now a means to riches rather than a means to restore loss.

Shame on you, Rep. Kucinich, for having a real injury.

First entering the public consciousness in 1994, the Stella Liebeck trial, known as the McDonald’s hot coffee case, has become such a fixture of litigation lore that many are unaware of the basic facts of the case, or even where and when it was tried. Litigated and reported upon before the rise of the Internet, much of what appears online about the case is the worst sort of unsourced speculation and conjecture. Our friends at Overlawyered have done an excellent job over the years dispelling the various myths about the case, including those that have arisen suggesting that the industry standard was to serve coffee at temperatures lower than that of McDonald’s. In an effort to publish some of the basic facts of the case, we here at Abnormal Use have created the following FAQ file regarding the matter. In so doing, we have relied solely upon the original pleadings and motions in the case and some contemporary news coverage.

On February 27, 1992, seventy-nine year old department store clerk Stella Liebeck was in the passenger seat of her grandson’s Ford Probe when she ordered a 49 cent cup of coffee at the drive through of a McDonald’s franchise in Albuquerque, New Mexico. Shortly thereafter, she spilled the coffee into her lap and sustained a series of burns. Her original state court lawsuit was filed in March of 1993, tried in August of 1994, and ultimately settled for an undisclosed sum in late 1994. Media coverage of the jury’s original verdict was, shall we say, immense.

Where was the case filed and tried?

The Second Judicial District Court in Bernalillo County, New Mexico.

What did the complaint allege?

Filed on October 5, 1993 the Plaintiff’s Amended Complaint recited the following allegations:

A. The coffee purchased by her on 2/27/92 was unreasonably dangerous because it was excessively hot and Defendants are liable to her for the physical and mental harm which it caused at the time of its sale and consumption on 2/27/92.

B. The product in question, coffee, was and is routinely sold and manufactured by the Defendants, and it reached Plaintiff in the same condition as it was at the time of the sale; further, Plaintiff in no way is guilty of any fault and the Defendants are strictly liable to Plaintiff under the Restatement of Torts Second, §402(a);

C. The coffee was defectively manufactured, served in a container that had design defects, and the coffee itself was manufactured defectively due to excessive heat; further, the container that it was sold in had no warnings, or had a lack of warnings, rendering the product defectively marketed;

D. The producing cause of Stella Liebeck’s injuries was the exclusive fault of the Defendants;

E. At all material times Defendants were aware of the dangerous condition of the coffee inherent in serving it at the temperature at which it was sold; they knew of the likely consequences of such acts; they knew of the risks involved and acted with a conscious indifference and willful and wanton disregard for the safety of Stella Liebeck and any other consumer of the product;

F. Defendants are expert manufacturers, distributors, and sellers of coffee and had a duty to test and inspect the product for unreasonably dangerous conditions, which they either failed to do, or alternatively, which they did negligently, or in the alternative, did with malice with complete disregard for the dangers inherent in selling coffee at the temperature at which it was sold causing a high probability of severe burns in connection with the sale of the product.

What damages were alleged in the amended complaint?

As set forth in the Amended Complaint, the damages purportedly sustained and sought were:

VI.

As a result of spillage of the defective coffee, Plaintiff sustained burns on her perineum, upper inner thighs, buttocks, genital areas, and lower abdominal wall including the left groin. The burns consisted of both second and third degree burns and were of such severity as to require debridement and skin grafting, causing enormous conscious pain and suffering, mental anguish, and loss of life’s enjoyment, for which she seeks damages. The foregoing treatment caused Plaintiff to incur medical expenses in the past, at the present, and into the reasonable future as follows: (a) past medical expenses: approximately $10,500.00; (b) future medical expenses: approximately $2,500.00. Total: $12,500.00.

VII.

Plaintiff Stella Liebeck was born on XX/XX/12 and was 79 years old at the time of the injury. At the time in question Plaintiff was a healthy, robust, and gainfully employed person, who worked as a sales clerk and earned in excess of $5,000.00 per year; Stella Liebeck has incurred lost earnings of approximately $5,000.00.

IX.

Further, as a direct result of the fault, or in the alternative, the negligence of the Defendants, Plaintiff has sustained severe disfigurement and permanent scarring to her body, which she claims has damaged her in an amount of not less than $100,000.

X.

As a result of the severe and painful burns described herein, Plaintiff sues the Defendants in the amount of $125,000 for physical pain, mental pain and anguish, and loss of life’s enjoyment during the pendency of treatment including skin grafting, debridement, and general recovery from painful scarring, 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.

XI.

Plaintiff comes now and sues McDonald’s Corporation and McDonald’s Restaurants P.T.S., Inc. for gross negligence, for willful and wanton disregrad of the rights, safety, and welfare of Stella Liebeck and any other consumers that purchase coffee in the defective state in which it is sold by Defendants, and for the marketing defect of no warning, or in the alternative, insufficient warning, because McDonald’s Corporation and McDonald’s Restaurants P.T.S., Inc. fully know of and are aware of innumerable burn cases caused by the fault, or in the alternative, negligence of their operations in the manufacture, sale, and marketing of extremely hot coffee. For this, Plaintiff comes now and sues in the amount of three times compensatory damages for punitive damages.

What were McDonald’s defenses?

In its Answer to the Amended Complaint, filed on September 22, 1993, McDonald’s asserted the following affirmative defenses:

SECOND DEFENSE

If the Plaintiff was injured and damaged as alleged, then her injuries and damages were the result of her own negligence or of the negligence of a third person or party for whom this Defendant may not be held responsible.

THIRD DEFENSE

If the Plaintiff was injured and damaged as alleged, which is specifically denied, then her injuries or damages were the result of an accident or inadvertence which was not the fault or responsibility of this Defendant.

FOURTH DEFENSE

Plaintiff has failed to mitigate her damages.

FIFTH DEFENSE

Plaintiff should be required to make a prima facie showing of entitlement to punitive damages before any evidence hearing thereupon is adduced before a jury.

SIXTH DEFENSE

Plaintiff’s claims for excessively hot coffee fail to state a claim for which this Court might grant relief.

SEVENTH DEFENSE

At all material times, these Defendants adhered to the applicable standard of care and engaged in reasonable conduct.

Who was sued?

In the original complaint, which was filed on March 21, 1993, Plaintiff only sued P.T.S., Inc., a New Mexico corporation and the local franchise operator. In the amended complaint, however, the McDonald’s corporation was added as a defendant. Ultimately, P.T.S., Inc. was dismissed as a defendant prior to the matter being submitted to the jury.

Where was the McDonald’s franchise in question?

The franchise was located at 5001 Gibson Blvd., S.E., Albuquerque, New Mexico 87108. According to Google Maps, there’s still a McDonald’s franchise at that location: ‎

View Larger Map

Is there a reported opinion?

Yes. The trial court’s original order entering the jury verdict is available on Westlaw as Liebeck v. McDonald’s Restaurants, P.T.S., Inc., No. CV-93-02419, 1995 WL 360309, (In the Second Judicial District Court of New Mexico, Bernalillo County, August 14, 1994). However, there is no reported appellate opinion due to a confidential settlement several months after the verdict.

Who was the judge?

The Honorable Robert Hayes Scott was the state court district judge who presided over the case. He is now a United States Magistrate Judge for the U.S. District Court for the District of New Mexico in Albuquerque. He was initially appointed to the position in 2003.

Who were the Plaintiff’s attorneys?

The lead Plaintiff’s attorney was S. Reed Morgan of S. Reed Morgan & Associates (now of the Law Offices of S. Reed Morgan, P.C.) of Comfort, Texas. Serving as counsel with him were Jerry R. McKenney of Houston, Texas (who at the time of the filing of the original complaint, had been licensed just two years) and local counsel Kenneth R. Wagner of Kenneth R. Wagner & Associates, P.A. (now of Wagner Ford Law, P.A.) in Albuquerque, New Mexico.

Who were the defense attorneys?

Bruce Hall, Tracy McGee, Susan S. Throckmorton, and Charles K. Purcell, all of the Rodey, Dickason, Sloan, Akin, & Robb, P.A. firm in Albuquerque, New Mexico. Now the managing partner of the Albuquerque office of Jackson Lewis, Danny W. Jarrett was then a law clerk at the Rodey firm who executed a summary judgment affidavit setting forth coffee temperature measurements he took at six local restaurants as a part of the defense case.

What were some of the pretrial motions filed in the case?

On January 21, 1994, the defendants moved for summary judgment. The motion was denied. On July 29, 1994, a hearing was conducted on Plaintiff’s Motion for Partial Summary Judgment. The parties stipulated as to causation of the injuries – that the burns were caused by the coffee. On July 29, 1994, in a letter decision, Judge Scott denied Plaintiff’s motion as to liability.

What was the basis of the McDonald’s motion for summary judgment?

In support of its motion for summary judgment, McDonald’s alleged the following as “undisputed material facts” upon which it based its motion:

1. Plaintiff Stella Liebeck was a passenger in a vehicle which proceeded through the drive-through window of a McDonald’s Restaurant (franchisee P.T.S., Inc.) located at 5001 Gibson, S.E., in Albuquerque, New Mexico, on or about February 27, 1992. Complaint for Damages, Paragraph III.

2. At the time in question, Plaintiff was 79 years old. Complaint for Damages, Paragraph VI.

3. Subsequent to purchasing the coffee, Plaintiff spilled it on herself, sustaining second and third degree burns to her upper inner thighs, buttocks, and other areas of her body. Complaint for Damages, Paragraph VI.

4. Plaintiff has alleged that the coffee was “excessively hot” and “defective” because of its high temperature. Plaintiff’s Complaint, Paragraph IV.

5. The second and third degree burns which Ms. Liebeck sustained could have been sustained at temperatures as low as 130 Fahrenheit. Aff. of Turner M. Osler, M.D., Para. 17.

6. The fact that the coffee that Ms. Liebeck spilled on herself may have been slightly or even significantly hotter than 130° Fahrenheit does not mean that her injuries were worse or more extended than they would have been otherwise. Aff. of Turner M. Osler, M.D., Para. 18.

7. Ms. Liebeck’s age may have caused her injuries to have been worse than they might have been in a younger individual, as the skin of an older person is thinner and heals less easily than the skin of a younger individual; however, even a young adult could have sustained third degree burns after spilling liquid at a temperature of as low as 130° on herself. Aff. of Turner M. Osler, M.D., Para. 19.

8. Unless Ms. Liebeck removed all of her clothing immediately, the clothing may have served to hold in the heat of the spilled liquid, and this may have aggravated the nature and extent of her injury; however, to a reasonable degree of medical probability, she would nevertheless have sustained third degree burns as a result of the coffee spilled. Aff. of Turner M. Osler, M.D., Para. 20.

9. A survey of six (6) fast food or restaurant establishments and two (2) private residences was conducted in September 1993 by Danny Jarrett. Aff. of Danny Jarrett, passim.

10. As part of this survey, Mr. Jarrett used a standard food thermometer and measured the temperature of coffee brewed and maintained at these locations. Aff. of Danny Jarrett, Paras. 3 & 4.

11. Mr. Jarrett’s measurements of coffee were taken when it was first served to him, after approximately 15 minutes, and after approximately 30 minutes. Aff. of Danny Jarrett, passim.

12. The coffee was served to Mr. Jarrett in containers ranging from styrofoam cups to ceramic mugs. Aff. of Danny Jarrett, passim.

13. At no location did Mr. Jarrett record the temperature of freshly served coffee below 130°. Aff. of Danny Jarrett, passim.

After citing several cases in support of its position, McDonald’s argued:

Defendants contend that Ms. Liebeck’s burns were not the result of serving excessively hot coffee, as other restaurants in this community have been demonstrated to serve coffee at temperatures which, for the sake of argument, might be lower than those served at the McDonald’s in question, but which also were high enough temperatures to have still caused the type of injuries and burns that Ms. Liebeck sustained.

It is unclear from the materials currently available whether McDonald’s submitted a memorandum in support of its motion.

What was the Plaintiff’s argument in her summary judgment motion?

In her motion for summary judgment, Plaintiff, after relying upon McDonald’s responses to requests for admission and the deposition testimony of McDonald’s Quality Assurance Group Manager of Administration Christopher D. Appleton, argued:

Plaintiff contends that Defendants have admitted, either through testimony or requests for admission, all elements of products liability and breach of warranty sufficient to prove her case on liability and causation. Moreover, the lack of an adequate warning makes the product defective. The lack of an adequate warning has been admitted by the Defendants. Therefore the product was defective. The defective product caused the burns to Ms. Liebeck’s body. There are no material issues of fact remaining for decision on Plaintiff’s claims of product defect with injuries caused thereby.

Similarly, the Defendants have admitted that the product, when sold, was not fit for its intended purpose, consumption. Accordingly, there no longer exists any material question of fact on the question of whether Defendants breached the implied warranty of fitness for a particular purpose; Defendants themselves have admitted the breach.

(Record citations omitted).

When did the case go to trial?

August 8-12 and 15-17, 1994.

Who were the testifying experts?

The defense experts were as follows:

Christopher Appleton (McDonald’s Manager of Quality Assurance). Viewed as an ineffective witness, Mr. Appleton apparently admitted that he was aware of the risk of hot coffee and had no plans to reduce the temperature. (Gerlin, Andrea. “A Matter of Degree,” The Wall Street Journal, September 1, 1994). Further, Mr. Appleton stated that the number of reported burns from McDonald’s coffee in relation to the total number of cups sold was not high enough to justify the modification of the serving temperature.

Dr. P. Robert Knaff (human factors engineer). Dr. Knaff testified that the number of prior coffee burn victims was statistically trivial in comparison to the number of cups sold.

Dr. Turner M. Osler (medical expert). Dr. Osler submitted an affidavit, stating that in his opinion, Ms. Liebeck would have suffered the same extent of burns had she been served coffee at a temperature as low as 130 degrees.

The Plaintiff’s experts were as follows:

Dr. David Arredondo (Mrs. Liebeck’s treating physician). Dr. Arredondo testified as to the extent of Mrs. Liebeck’s injuries. Mrs. Liebeck suffered burns to approximately six percent of her body – 90 percent of which were third-degree burns. Further, he testified that elderly people are more susceptible to burns than younger people due to the thinning of the skin that occurs with age.

Dr. Charles Baxter (burn specialist). Dr. Baxter offered his opinion at trial that coffee served at 180 degrees was excessive and could not be consumed at that temperature. Dr. Baxter opined that the optimal temperature range to serve coffee was between 155 and 160 degrees. (Historical footnote: He operated on President Kennedy and Governor Connally on November 22, 1963).

Dr. Kenneth Diller (thermodynamicist). At his deposition, Dr. Diller testified that, in his opinion, McDonald’s was serving an unreasonably dangerous product when it sold its consumers hot coffee in styrofoam cups without warning of the possibility of sustaining burns.

Dr. Lila F. Laux (psychologist). Dr. Laux testified that the addition of a warning to the McDonald’s coffee would have influenced Mrs. Liebeck’s behavior.

Melissa Patterson (economist). In calculating hedonic damages of $660,900 from the date of Mrs. Liebeck’s injury, Ms. Patterson assumed that Ms. Liebeck lost all enjoyment of life the moment she was burned and would continue to have no enjoyment until her death.

What was the original verdict?

The jury found for the Plaintiff on her claims of product defect, breach of implied warranty, and breach of the implied warranty of fitness for a particular purpose. The jury also found that Plaintiff was twenty percent at fault.

What were the damages awarded?

After deliberating four hours, the six man, six woman jury initially awarded $200,000 in compensatory damages, which was reduced by the judge by $40,000 due to the finding of comparative fault. The jury also awarded $2.7 million in punitive damages.

What became of the verdict?

McDonald’s filed post-trial motions. In late August or early September 1994, Judge Scott appointed retired New Mexico Supreme Court Justice William F. Riordan to mediate the dispute and ordered the parties to “make a good faith effort to resolve and completely settle all pending issues.” (“Conference Ordered on Spilled Coffee,” Associated Press, Tulsa World, September 2, 1994, available at 1994 WLNR 5089128). On September 16, 1994, Judge Scott denied McDonald’s motion for new trial and motion for judgment notwithstanding the verdict, noting that “the compensatory award of $160,000 shall not be disturbed.” However, in that same order, the court noted as follows: “The award of punitive damages of 2.7 million dollars was excessive, as a matter of law. Accordingly, a new trial shall be granted on all issues unless Plaintiff accepts — by written notice to the Court within 25 days of the date of entry of this Order – a remittitur of the punitive damages award as hereby directed by the Court. The remittitur, if accepted, shall reduce the punitive damages award to $480,000, which represents the trebling of the $160,000 award of compensatory damages.” In so doing, Judge Scott commented that the new punitive amount was justified due to “‘willful, wanton, reckless and what the court finds was callous” conduct on the part of McDonald’s. (Associated Press, “Ruling Eases Heat on McDonald’s; Restaurant Will Still Appeal Coffee Verdict,” Wichita Eagle, September 15, 1994, available at 1994 WLNR 823624). At that time, McDonald’s spokesperson Ann Connolly told the Nations’ Restaurant News that “[s]afety is always our first concern, and that is why we have ‘hot contents’ printed as a reminder on our cups. We knew the initial damages awarded were excessive and unjustified, and yesterday the judge acknowledged that and agreed. But we feel they are still excessive, and we will appeal this decision.” “(Judge slashes McD settlement to $480,000: slams chain as ‘callous’ but reduces $2.9M jury decision,” Nation’s Restaurant News, September 26, 1994, available at 1994 WLNR 5313844). In early October of 1994, the New Mexico Supreme Court denied Liebeck’s appeal of the reduction of the punitive award. At that time, McKenney was quoted as saying that “[a] decision has to be made whether to seek a new trial or accept the reduced amount.” (“Court Refuses to Raise Award for Coffee Spill,” The Chicago Tribune, October 14, 1994, available at 1994 WLNR 4335536). On November 3, 1994, Judge Scott denied Plaintiff’s October 21, 1994 motion for reconsideration of the remittitur order. Finally, on November 28, 1994, the court vacated the judgment, presumably due to the confidential settlement which was announced in the media the following week.

What efforts were made to settle the matter?

Liebeck initially approached McDonald’s with a demand of $20,000 to cover her medical bills, future medical expenses, and lost income. McDonald’s countered with an offer of $800. (Gerlin, Andrea. “A Matter of Degree,” The Wall Street Journal, September 1, 1994). As trial approached, Liebeck’s settlement demand increased to approximately $300,000. (Id.). After denying McDonald’s motion for summary judgment, the trial judge ordered the parties to attend mediation. During the session, the mediator recommended that McDonald’s accept a $225,000 offer. (Id.). McDonald’s declined. Following the jury verdict and the trial court’s reduction of the punitive damages award, both parties appealed. Before the case was heard on appeal, the parties settled out-of-court for an undisclosed sum. When the settlement was announced, Wagner claimed that “McDonald’s now (is putting) warnings on its coffees as have some of the other fast food chains. That was her principal objective, to make things safe. Have you ever had McDonald’s coffee? It’s hot, hot hot. It’s as hot as the water in your radiator.” (“McDonald’s settles suit over burns from coffee,” The Houston Chronicle, December 2, 1994, available at 1994 WLNR 5009816).

What was the immediate reaction to the verdict?

Everyone knows the tale of the New Mexico jury that awarded an octogenarian Plaintiff nearly $3 million after she spilled a cup of McDonald’s coffee into her lap at the drive through. In 1994, that verdict became the talk of the nation and the poster child for tort reform. Since that time, the case has become the legal community’s most infamous urban legend. However, most Americans probably wouldn’t recognize Plaintiff Stella Liebeck’s name; fewer realize that the large award of damages was ultimately reduced to approximately $800,000 by the trial court. The story of the hot coffee case – much like a childhood game of “telephone” – has been told and re-told so many times that the line between truth and myth has become indistinguishable.

We’ve blogged in the past about the necessity of an actual injury to maintain a lawsuit, and just yesterday, the New Jersey Appellate Division again reminded us that there must be some damage sustained before the law will permit recovery. In DeBenedetto v. Denny’s, Inc., No. A-4135-09T1, 2011 WL 67258 (N.J. App. Div. Jan. 11, 2011) [PDF], the Plaintiff sued Denny’s under the state Consumer Fraud Act [CFA], alleging that the restaurant chain failed to disclose the high sodium content in his typical breakfast of ham, bacon, sausage, and hash browns. Although the Plaintiff framed the action under the CFA (ostensibly because neither he nor his purported class had any injury), the court affirmed a dismissal and stated that crux of the claim was products liability, and, therefore, there must be some injury alleged.

Avid readers our site might predict that we will spend the next few paragraphs poking fun at the Plaintiff’s attorney’s inability to properly frame the cause of action or to understand what the word “damage” really means. But today we take a different tack and offer some litigation planning tips to our friends in the plaintiff’s bar. It’s no secret that excess sodium in the diet is bad for you [PDF]. But like a lot of other ingredients, sodium has some benefits, like extending the shelf-life of food. However, sodium may head the way of the trans fat, as there is an increasing awareness and governmental pressure to force reduction of sodium in food.

DeBenedetto may merely have been a test case to see how the courts would react to such claims. Perhaps the courts would not have been so quick to dismiss the case if the evils of excess sodium had gotten some more media attention over the past ten years. Sodium can cause problems with blood pressure and kidney function, but because causation of high blood pressure is multifactorial, causation may be difficult to prove, even given an injury. Maybe a few years from now, in a different state, a consumer fraud action might be more tolerable. Or maybe there is some political aspiration. Perhaps Mr. Wolf, the Plaintiff’s attorney, sees himself as a future sodium czar, helping to craft some FDA regulations. There’s nothing like being in front of an issue to add credibility to a position.

Nevertheless, it would not surprise me if excess dietary sodium quickly became a mainline issue, and whether it means a future tort suit or some other kind of remuneration, I am hard-pressed to believe that this New Jersey suit doesn’t fit in to some other larger litigation plan.

Fellow blog The Hot Dish had an interesting post recently about a diner suing a restaurant owned by the Hillstone Restaurant Group because he was not properly instructed on how to eat an artichoke. Mr. Carvajal, the diner in question, ate the actual leaves of the artichoke, leading him to experience severe abdominal pain due to the leaves being lodged in his small bowel.

The Hot Dish asks the right question: “To what extent should restaurants be liable for the foods they serve?” For instance, should diners be warned not to eat the bones of barbecue ribs?

Other blogs have also provided commentary on this case; a post in the Miami New Times points out that Mr. Carvajal is a doctor originally from Cuba, and suggests that perhaps, he should have known better. Word of Mouth also posted on the suit, commenting that it raises questions about the balance between “helpfulness and over-familiarity” by servers. But perhaps the best commentary on the case from a legal standpoint comes from a post by On Point, which analyzes the negligence case Mr. Carvajal will be attempting to make against the restaurant as follows:

Florida, like other states, uses a “reasonable expectation” test in unfit food cases. A preparer of food “has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against,” the Florida Court of Appeals said in Zabner v. Howard Johnson’s, 201 So.2d 824 (1967).

Carvajal, though, can’t recover damages for unfit food since there was nothing harmful per se in the artichoke he was served. It is not what he ate that allegedly caused his injury, but how he ate it.

***

Carvajal would have a better case if his server had given him incorrect instructions on how to eat an artichoke. As the case stands now, it would expose a restaurant to liability any time a server does not explain to a customer how to eat a lobster, relieving the customer of responsibility for asking the simple question, “How do I eat this?”

While I agree with this analysis as a whole from a public policy standpoint, I’m not sure it isn’t what Mr. Carvajal ate that wasn’t the problem–he ate the entire leaf of the vegetable, instead of just the meat inside it. For my part, that’s a what and not a how as On Point describes it. But to burden restaurants and servers with explaining to each diner how to eat his food–from shrimp to ribs to bone-in steak–would be to expand the concept of duty in a negligence action far beyond the scope that the law–and common sense–ever intended.

If a picture paints a thousand words, do you still want to eat ground beef? Today’s post serves as a reminder that breaking a tooth while trying to eat the Old 96er does not give rise to a cause of action. Daniel Burns’ case didn’t survive summary judgment, and his appeal to the Appellate Division of the Massachusetts District Court does not begin well: “ Eating a McDonald’s double cheeseburger while driving his truck, the plaintiff, Daniel L. Burns, Jr. (“Burns”), felt a molar break on a hard object, which he did not recover.” Burns v. McDonald’s Corp., No. 10-ADMS-40001, 2010 WL 4226278 (Mass. Ct. App. Oct. 20. 2010). It turns out that Burns should have tried harder to recover the gristle, for without the foreign object he could not be successful as a matter of law.

The court sets up the facts well:

On October 20, 2006, Burns bought a double cheeseburger at a McDonald’s restaurant drive-through window in Raynham. As he drove his pickup truck onto Route 44 while finishing the cheeseburger, Burns had to brake so suddenly because of traffic that he had to restrain with his right hand his 75-pound dog, which had “started to go flying,” and then grab the steering wheel with both hands to keep his truck under control. Indeed, he “needed to push” the cheeseburger into his mouth so he could grab the wheel. While braking, with cars around him swerving, including the car behind him “swerv[ing] out from underneath the truck and into the breakdown lane,” Burns bit onto something and felt pain in the whole right side of his mouth. With his tongue, he felt a round and “hard and bumpy” object about the size of a “small pea.” He spit the contents of his mouth into a napkin. Examining that material later, he found what might have been tooth fragments, but not the offending object, which he never saw or felt, except with his tongue. Burns reported the incident to the restaurant on the day it occurred, and was examined by his dentist at Woodstock dental implants later the same day. Might I suggest to Mr. Burns that, if you were to get in a similar situation again, please, drop the double cheeseburger. Then, reply to this post, and I will wire you the $1.49 to buy a replacement double cheeseburger. If you were to ever get into a car accident with me, and I found out that it was because you were unwilling to relinquish your death grip on your midday artery clog, I would be more than mildly upset. Cramming the sandwich into your gullet is not the decision of a rational actor.

But wait, there’s more: “Almost exactly a month before this incident, on September 19, 2006, a piece of the tooth at issue here simply “had come off” while Burns was eating.” Hmm. Burns cracks his tooth on an object that he didn’t preserve and can’t identify, and the affected tooth suffers from some pre-existing enamel-ady. Sounds Filet-o-fishy. Yes, I actually wrote that.

And as per the dentist he visited at Wichita orthodontic care, it turns out that “Burns had no expectation of either demonstrating the identity of the object on which he allegedly bit, or, it follows, of establishing that object or substance was one that a consumer should not reasonably have expected to find in a cheeseburger.” Summary judgment upheld. What are the lessons to be learned here? 1) Be able to identify the foreign object in your burger. 2) Ensure that it is of such a quality that a consumer would not have expected to find said object in his burger. 3) This opinion would have been better if Burns had ordered the “Big N’ Tasty,” with the Court having to repeat “Big N’ Tasty” throughout the opinion. 4) All of you must immediately head to your local McDonald’s, because the McRib is back for a limited time. No I am not kidding. Try it, and you will love it.

In honor of the Tea Party’s victory/destruction of the country as we know it, we here at Abnormal Use take this opportunity to write about tea. Not just any tea, mind you, but extremely, piping hot tea. Tea so hot, that if you removed the lid and poured it on your body, it would burn you just as if it were brewed in the fires of Hephaestus himself. A tea so destructive and ominous that it has earned the street name of “2012.” Notice that if you remove the “0” from 2012, you find yourself with 212, which is the Fahrenheit temperature at which water boils, so obviously, the imminent collapse of humanity has much to do with boiling hot tea.

Unfortunately, this is 2010, a time in which poor 76-year-old Plaintiff Rachel Moltner simply cannot subsidize her own negligence with the profits of the mega-corporation Starbucks. In yet another hot beverage case, we see a purportedly evil-beverage serving corporation forcing consumers to burn themselves and then legally smiting the innocent consumer via summary judgment, surely while the CEO lights his cigar with $100 bills and guffaws mercilessly.

On Tuesday of this week, the Second Circuit affirmed a grant of summary judgment to Starbucks against Moltner in Moltner v. Starbucks Coffee Co., No. 09-4943-cv, 2010 WL 4291299 (2d Cir. Nov. 2, 2010) [PDF]. After several months of ordering a weekly regular sized hot tea, Ms. Moltner upgraded to the “Venti,” a 20-oz behemoth of a beverage. The tea was double-cupped and sleeved, the purpose of which, was, of course, to protect the consumer from burning her hand on the very hot elixir. Moltner was handed the beverage, lid in place. She then ambled over to a table to pour some sugar into her tea. As she removed the lid, she poured some tea into her shoe, causing her burns necessitating skin grafts, as well as some secondary injuries related to her hospital stay, including bed sores, a fractured sacrum, and some herniated discs. (As an aside, Ms. Moltner’s “coffee name” was Plaintiff Oldy McOlderton.)

Per the district court, however, at Moltner v. Starbucks Coffee Co., No. 08 Civ 9257, 2009 WL 3573190 (S.D.N.Y. Oct. 23, 2009), plaintiff’s counsel tried to spin this double cupping: “Plaintiff alleges that the double cup constitutes a dangerous defect . . . .” While a double cup may be inadvisable or ineffective in other walks of life, here, in fact, it was no defect. Furthermore, expert suppositions about grip positioning or finger size were likewise dismissed. (We’d like to see the CV of the tea cup grip positioning expert.). Plaintiff also tried to make some hay with an apparent directive from Starbucks to its employees that they not double cup because it changes the cup’s center of gravity. Seriously. I have never thought about ensuring that my beverages have a low center of gravity. Unfortunately for her, Ms. Moltner’s quest for not more than $3 million dollars ended in a sweet and frothy summary judgment. Pour some sugar in that.

Lest you think me heartless, I do empathize with Ms. Moltner. I don’t wish injury upon anyone, but spilling a hot beverage on yourself is not grounds for a cause of action. It wasn’t in 1992, and it isn’t 18 years later. It’s just carelessness or bad luck or the whims and caprices of the fates. Please just accept some responsibility and be careful when you double cup.

You can read the rest of the summary judgment order yourself. I will note that valuable resources of the federal judiciary were occupied hearing the motions and writing the 41 page order in this case. Moreover, there was a fair amount of discovery taken in this case, with the plaintiff deposed not once but twice. Perhaps the airline’s attorney could not believe what he heard the first time. There was also some talk of Luna amending her complaint to add sasquatch fur as a second foreign object, and the airline was forced to conduct discovery on the existence of Bigfoot.

I now fear that someday I may be writing on discovery relating to sasquatch. After all, if Luna had alleged that she had sasquatch fur in her food (and had retained the fur), wouldn’t that be a cognizable claim? My hope is that the sasquatch case is filed in South Carolina, and I get to be a part of that discovery.

Today, we examine the question whether anyone in the United States is unaware that coffee is served hot enough to burn skin. While any reasonable person is aware that coffee is, in fact, hot, Gerald Colbert thought it was 1992 again and sued Sonic Restaurants because it “failed to warn him and other customers of hot coffee, failed to keep its coffee at a proper temperature and failed to make sure its coffee cups were in a safe condition.” Colbert alleged that he received second degree burns through “his blue jeans in his groin area, stomach/abdomen area and thigh.” Thankfully, Judge Stagg, in granting summary judgment against Colbert in Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010) did not have to discuss any damages discovery. While we occasionally poke fun at litigiousness, the following are some things that struck me about this case:

1. This case was filed and state court and removed. Therefore, I assume that Colbert was forced to concede that he suffered over $75000 damage to his “groin area.” I also assume that the parties thought that use of the phrase “groin area” was appropriate. Use of the phrase “groin area” only makes this suit seem more comical. Can’t we all agree that a groin is a groin without appending the word “area?” We get it.

2. Only in law do we have to assess whether someone is a “sophisticated user” of hot coffee:

The summary judgment evidence in this case clearly classifies Colbert as a sophisticated user of Sonic’s coffee. Colbert testified during his deposition that he is a regular coffee consumer and that he has purchased coffee from Sonic numerous times prior to the incident. . . . In fact, Colbert admitted during his deposition that he has previously spilled hot coffee on himself.

Think about what went in to getting this admission. Case was filed, answered, written discovery served, discovery reviewed, deposition prep on both sides, and Colbert drove himself to the attorney’s office, probably with coffee in hand, and knew that he had no cogent, helpful answer for when he would be asked the question whether he had spilled coffee on himself.

3. In response to the summary judgment motion, Colbert came forward with his own affidavit, which apparently struck his lawyer as the best (or cheapest) way to respond. Colbert then turns into part scientist, part logician to come up with this (paraphrased) Aristotelian formulation of a syllogism: Premise 1. Water boils and turns to steam at 212 degrees Fahrenheit. Premise 2. I observed steam coming from my coffee. Conclusion – My coffee was 212 degrees Fahrenheit. Uh, no. I’ve never had a cup of coffee at a roiling boil. You haven’t either.

It’s not 1992. I think everyone is aware that coffee is hot everywhere and not just at McDonald’s. Colbert imposed systemic costs on the courts, as well as all of us who enjoy the wonderful fare offered by Sonic. It’s hard to know whether this is an economically efficient result, since we can’t really know if this case will deter any other sophisticated users from coffee litigation, but in the short run, lots of money was spent defending a meritless claim. Congratulations, Sonic, in choosing justice over economics.