Thursday, June 30, 2016

Some (Don't) Like it Hot

Back in May, I posted about a legal action against Starbucks for too much ice in its drinks.  I referenced in that post the earlier legal action taken against Starbucks for under-filling its latte drinks and against McDonald's for damage done by hot coffee.  I can't resist adding another hot coffee case to the mix . . . .

Another suit has been brought against Starbucks--my daughter's employer (as I disclosed at the outset in my previous post).  This time, the case involves damage caused by hot coffee resulting from a bad drive-through pass-off.  The plaintiff requests up to $1 million "for medical expenses, loss of work, and for the mental and physical pain she claims the burning coffee caused her," according to the news report.  The case involves second-degree burns--a serious matter in anyone's eyes.  Depending on the facts elucidated at trial, this case may (like the McDonald's case from 20+ years ago) have some traction in court.  (Apparently, there have been other Starbucks cases involving hot drinks.)

I do feel sorry for plaintiffs who are damaged by hot coffee or beverages.  These cases undoubtedly have more gravitas than cases alleging damages based on the amount of ice or beverage served.  Yet, the hot beverage cases still nag at me a bit--maybe because I have trouble conceptualizing suing a coffee service business for damage created by a hot beverage that I ordered.  Today, reflecting on this new Starbucks case, I did some soul-searching to determine why I am unlikely to sue.

The bottom line is that I understand there is something inherently dangerous about ordering hot coffee in a paper cup with a plastic lid, especially for pick-up at a drive-through window.  I know I am assuming a risk in those circumstances.  I also know that I may share or bear blame for any spill that happens after I order--the lid on a cup properly sealed and handed to me loosens and sometimes pops right off if I grab the cup from the top under the lid area.  Maybe you've noticed that in handling coffee at your favorite coffee shop . . . .  

I am no tort lawyer, but I guess I see myself in many of these cases, which makes me wonder whether the plaintiffs and their lawyers place too much reliance on litigation for the achievement of their respective desired objectives . . . .  I would hope that many controversies between businesses and consumers, as I indicated in my prior post, could be resolved outside the litigation process.  Not every injury is or should be compensable through a legal action.

Moreover, in my work, I have been critical of many securities fraud (including insider trading) class actions as at best inefficient means of addressing certain plaintiffs' concerns.  In my experience, I also have seen cases brought against high-profile or deep-pocket defendants more for their settlement value than to redress or prevent a wrong to the plaintiff or society.  My gut tells me that I might be critical of some of the hot coffee cases on the same bases if I came to know more of the facts.  But I cannot be sure.  

Is my instinct off-base?  Am I too quick to see fault in the claims of potential plaintiffs?  Am I giving coffee service businesses too much cred?  I am interested in any thoughts you may have.  In any event, we can be confident that the hot beverage cases will continue for the foreseeable future.

Hat tip to Lou Sirico at Legal Skills Prof Blog for pointing out this case to me.

Food and Drink, Joan Heminway, Litigation | Permalink


Unless ordering “iced coffee” the purchaser should know the product is “hot coffee.” In fact, I would presume most would complain if it was tepid coffee and request another cup. I’ve spent years trying to explain to family and friends the “McDonald’s hot coffee case outcome.” Needless to say, these critics lay what they consider an aberrational outcome (McDonalds) at the feet of the lawyers who prosecuted the case rather than the jury.

My wife once observed a young child, undisciplined by a parent, running around in a regional restaurant. The child ran into a server carrying a pot of coffee to refresh customer cups – who, surprised by the impact of the child – spilt that hot coffee on that child. Certainly, the child was injured by the hot coffee and one may feel compassion; but, ultimately it resulted from the failure of the parent. Since that time, and sometimes to my dismay, my wife will approach parents who allow their children to run throughout a restaurant and recount this story as an admonition.

In all, unless an employee splashes a customer with coffee, there has got to be some personal responsibility (you nailed it) involved and some reasonable application of assumption of the risk. Otherwise, I await the next phase – suits for “upper mouth burns,” pain, suffering and loss of consortium resulting from hot cheese on pizzas and product liability suits for “Hot Pockets.”

Posted by: Tom N. | Jul 1, 2016 6:52:06 AM

I will push back a bit. Without knowing enough facts in this particular case, I can say, from personal experience, that most large companies tend to be extremely slow in responding to customer complaints, and even slower if the request includes a demand for payment.

In this case, perhaps the plaintiff could not reasonably wait, given the expenses from the accident. I don't think we know whether she requested payment from Starbucks before filing her complaint, do we?

To me, it seems like Starbuck's could have done better, as the article says that employees did not offer any assistance. Large companies really should empower local stores to handle this sort of thing relatively quickly to help their customers, avoid the bad press, and avoid the potentially large legal liability and fees/costs. Of course, large companies also need to guard against frivolous actions, so the balance may be difficult.

Posted by: Haskell Murray | Jul 1, 2016 9:15:29 AM

Thanks for these thoughts, Tom. I know what you mean.

Some hot liquid injuries are very damaging, of course. As a FB friend pointed out, while she (the friend) also might not sue for the kind of injury suffered in some of these actions, that's largely because she is insured. This helped me to crystallize that I also have an issue with multi-million dollar suits involving punitive and emotional distress as well as simple compensatory damages for conduct that seems like an ordinary consumer mishap. I also think that deterrence is sometimes better served by handling these types of issues outside the courtroom--at least initially. If the retailer then does not acknowledge its role in the injury, consumer reporting or even legal process may be appropriate.

Those additional thoughts may or may not be useful, but I offer them for what they are worth.

Posted by: joanheminway | Jul 1, 2016 9:22:26 AM

I hear you, Haskell. And you know how much I value your judgment. This is just the type of response I had hoped someone would offer. So, thanks.

But I will admit that litigation is, in my experience, a very slow way to get compensation for injuries. And I do think local stores can do a lot in many corporations to get injured parties quicker relief. If the injury is reported to the manager, a claim can be filed and the insurance company will typically be alerted. This can result in a simple settlement that may cover the injured party's costs. Of course, this means the business must own up to its contribution to the injury . . . .

A number of years ago, I negotiated a settlement like this for an injury my grandmother incurred at a Burger King. It took a month or so of calling back and forth and having trouble reaching the person authorized to pay on the claim. But it was relatively simple and fast. I and my grandmother both believed she was treated fairly in the settlement, which covered her deductible and incidental expenses. This experience also may frame my reference.

You are right that we do not have all the facts on this claim. But it's hard for me to imagine the necessity for this litigation based on what I do know. And shame on the reporter if the facts we need were not reported! :>)

Posted by: joanheminway | Jul 1, 2016 9:34:26 AM

I know a fair amount of plaintiff-oriented attorneys that will file litigation simply to get a claim to a litigation adjuster that has more experience and may be more proactive. A filing fee (to them) seems a cheap and effective way to get to the front of the line, so to speak. And, if they have a decent case, the defense counsel may bring some pressure on the insurer to resolve as well.

Posted by: Marcos Antonio Mendoza | Jul 12, 2016 11:15:11 AM

These are nice additional thoughts, Marcos. I can definitely see that angle--strategic complaint-filing to prompt quicker response. I would just express my wish that folks didn't need to file complaints in legal actions for that purpose.

Posted by: joanheminway | Jul 12, 2016 11:28:18 AM

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