Wednesday, February 23, 2011

Nacho Cheese the Next Hot Coffee?

In March 2010, a California family visited Walt Disney World in Orlando, Florida, with their four-year-old son Isaiah.  While there, they bought nachos with cheese for a snack.  Though it is unclear from the complaint it appears that the nacho somehow spilled on Isaiah burning his face.  The family is now suing Disney claiming that, in light of the fact that the park had a high percentage of child patrons, the nacho cheese served was excessively hot.  You can read the complaint here and see a picture of Isaiah's burns here.

This case will, of course, draw analogies to the famous Liebeck v. McDonald's Hot Coffee case.  Though Liebeck became the poster child for Tort Reformers' claim of excessive lawsuits I think that suit got a bad rap.  What people don't know about Liebeck was that she sustained third degree burns (that's a burn that cuts through the entire skin layer down to the muscle) over 6% of her body.  Additionally, Liebeck sought only $20,000 from McDonald's to cover her related medical expenses.  McDonald's offered only a nuisance settlement of $800.  McDonald's refused all future offers of settlement.  So Liebeck had no choice but tot ake her case before a jury.

During trial, Liebeck's attorney offered evidence that McDonald's required franchises to serve coffee at 180–190 °F (82–88 °C). At that temperature, the coffee would cause a third-degree burn in two to seven seconds.  A twelve-person jury reached its verdict on August 18, 1994.  Applying the principles of comparative negligence, the jury found that McDonald's was 80% responsible for the incident and Liebeck was 20% at fault. Though there was a warning on the coffee cup, the jury decided that the warning was neither large enough nor sufficient. They awarded Liebeck $200,000 in compensatory damages, which was then reduced by 20% to $160,000. In addition, they awarded her $2.7 million in punitive damages. The jurors apparently arrived at this figure from Liebeck's attorney's suggestion to penalize McDonald's for one or two days' worth of coffee revenues, which were about $1.35 million per day.

So even though the Liebeck verdict was very high it makes sense in light of the various factors that brought the case to trial.

Isaiah's case strikes me as a little more tenuous with respect to liability.  The complaint is vague at best.  It says nothing of how the hot nacho cheese actually made its way onto the child's face.  Initial reports indicate that the boy allegedly grabbed a food tray to keep from falling out of a wobbly chair when a cup of scalding hot nacho cheese flew on to his face, burning his upper lip and other spots.It sounds like the parents had taken control of the nachos.

The picture of Isaiah that shows that his upper lip sustained the worst burn (there are appears to be some drip burns on the bridge of his nose as well) belies this mechanism of injury.  From the pictures, I can't help but think that Isaiah was either fed a nacho with the hot cheese on it by his parents or he was allowed to serve himself (what are the chances all the cheese that fell off the flipped over tray landed on his upper lip?).  Presumably the parents had not tested the temperature of the cheese themselves.  My initial reaction is one of skeptical optimism.  Though I am somewhat skeptical of the parents' actions in allowing their child to get in range of scalding hot nacho cheese without first testing it, I am optimistic that there are other aggravating factors in this case not mentioned in the complaint that provide grounds for a stronger suit.

Personal injury attorneys have a responsibility to both to the personal injury bar and the legal system to err on the side of avoiding the filing of questionable lawsuits.  By providing fodder to tort reformers for claims of "another frivolous lawsuit" we hurt our practice and livelihood.  But more importantly by laying the groundwork for greater and greater restrictions on lawsuits and damages, questionable lawsuits hurt everyone by preventing people who have truly been injured through no fault of their own from recovering fair compensation for their harms. Share this post :
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