TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Sunday, August 12, 2007

More on the McDonald's Suit

In the comments to my earlier post about the suit against McDonald's for the inclusion of cheese on a burger ordered by a (very) allergic customer, Peter Nordberg notes a post on Volokh arguing rather vociferously for the applicability of comparative fault.

Why the case would counsel in favor of a return to the complete bar of contributory fault, I've no idea.  Certainly I assume McDonald's will raise the failure to look inside the bun (if proved) as comparative fault to reduce or potentially eliminate recovery...


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Contributory fault would, in this case, have the advantage of permitting summary judgment.

Posted by: Ted Frank | Aug 12, 2007 7:59:02 PM

Well, yes, I'm familiar with the effect of contributory fault. I'm just not at all convinced that summary judgment is appropriate here, or why one would want to sweep all of the far closer question cases out, even if you want summary judgment to be available in this case.

Addition: Also, West Virginia has 50% modified comparative fault, so if the conduct is as wildly negligent as others seem to think, summary judgment is available - certainly tougher than in contributory fault, but that's as it should be, in my view.

Posted by: Bill Childs | Aug 13, 2007 3:41:36 AM

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