TortsProf Blog

McDonald's and Franchisee Liable for Chicken McNugget Burn

McDonald's and a Florida franchisee are liable for a chicken mcnugget burning the thigh of a four-year-old girl in a 2019 incident.  A mother testified she bought chicken mcnuggets and passed them to her children in the back seat.  Shortly thereafter, she heard the screams of her then-four-year-old daughter, who had second-degree burns on her leg.  The argument, reminiscent of the Liebeck case, was that the food was too hot.  There was a factual dispute about the temperature of the mcnugget.  Plaintiffs' lawyers claimed the mcnugget was over 200 degrees; defense lawyers claimed it was no more than 160 degrees.  A jury found the franchisee liable for negligence and failure to warn customers about the risk of hot food.  As to McDonald's USA, the jury found it liable for failure to provide instructions for the safe handling of food, but not liable for negligence or defective products.  A separate jury will assess damages.  Thanks to Cinthia Chou Chan for the tip.  The story is here.

Lytton on Private Third-Party Verification of Product Claims

Tim Lytton has posted to SSRN Private Third-Party Verification of Product Claims:  Lessons from Kosher Certification.  The abstract provides:

Food consumers often desire products with attributes that are not discernable from a product’s appearance. Unscrupulous sellers may be tempted to misrepresent the presence of these “credence qualities.” In response, reputable sellers wishing to distinguish truthful product claims from spurious ones can provide verification using third-party certification. Third-party certification marks on product labels attesting to a wide variety of credence qualities are now commonplace. This chapter analyzes the global system of kosher food certification to develop a general model of reliable third-party verification of credence qualities.

Lytton on Using Insurance to Regulate Food Safety

Tim Lytton has posted to SSRN Using Insurance to Regulate Food Safety:  Field Notes from the Fresh Produce Sector.  The abstract provides:

Foodborne illness is a public health problem of pandemic proportions. In the United States alone, contaminated food sickens an estimated 48 million consumers annually, causing 128,000 hospitalizations and 3,000 deaths. Nowhere is this crisis more acute than in the fresh produce sector, where microbial contamination in growing fields and packing houses has been responsible for many of the nation’s largest and deadliest outbreaks. This Article examines emerging efforts by private insurance companies to regulate food safety on farms that grow fresh produce.

Previous studies of using insurance to regulate food safety rely on economic theories that yield competing conclusions. Optimists argue that insurance can promote efficient risk reduction. Skeptics counter that insufficient information regarding the root causes of contamination renders insurance impotent to reduce food safety risk. This Article adds a sociolegal perspective to this debate. Based on interviews with insurance professionals, the Article documents how, notwithstanding limited information, underwriters employ a variety of techniques to encourage compliance with government food safety regulations and conformity to industry standards. These techniques include premium discounts for clients who adopt state-of-the-art food safety practices, coverage exclusions for high-risk activities, and loss control advice about how to avoid contamination.

Insurance plays a growing and potentially transformative role in advancing food safety. Government food safety regulation has traditionally been hampered by inadequate inspection resources. This Article advocates expanding insurance to fill oversight gaps in the U.S. food safety system, and it offers specific recommendations for how to nurture emerging markets for food safety coverage.

The findings presented in this Article have implications for understanding how insurance regulates risk more generally. Economic analysis of many well-established types of insurance—for example, life, health, homeowners, and auto—emphasizes the role of actuarial data in pricing premiums, determining coverage limits, and informing loss control advice. However, the underwriting professionals in this Article who describe their efforts to improve food safety on farms tell a different story. They operate in an emerging market with a low volume of claims and a dearth of actuarial data. Three aspects of their work stand out. First, underwriting in this area is more impressionistic than economic analysis assumes. When assessing the risk of microbial contamination on farms, underwriters rely more on their intuitions about a farmer’s competence and on media coverage of high-profile foodborne illness outbreaks than on actuarial data. Second, the mindset of these underwriters is more administrative than economic. They think in terms of regulatory compliance and standards conformity rather than optimal risk reduction. Third, farm size determines the role of insurance in managing risk. High-premium coverage for larger farms provides more underwriting resources for risk management than low-premium policies priced for small farms. These findings suggest that although economics explains the logic of insurance as form of risk regulation, understanding how underwriters regulate risk in practice, especially in emerging markets, requires attention to professional judgment, bureaucratic thinking, and resource constraints.

PA: Wawa Settles Claim for Defective Coffee Cup

A Philadelphia man alleged Wawa knowingly sold coffee in defective cups, leading to his scalding injury:

The main thrust of the litigation is that the defendants allegedly knew the model cup manufactured by RPC Letica and used by Wawa, the Model 24 HDC Cup, was defective, but took no action to correct the cup’s design and make it safe for consumers.

The suit stated on Feb. 25, 2017, Hall purchased coffee from a Wawa store and when holding the cup in his hand, the sides of the cup buckled, causing the cup's contents of scalding hot coffee to spill onto his lap, resulting in severe injuries.

The case settled for an undisclosed amount of money.  The plaintiff was seeking damages in excess of $50,000, plus punitive damages, costs and interest.  Pennsylvania Record has the story.

Shu on Food Allergy Bullying

D'Andra Shu has posted to SSRN When Food is a Weapon:  Parental Liability for Food Allergy Bullying.  The abstract provides:

Food allergies in children are rising at an alarming pace. Increasingly, these children face an added threat: bullies targeting them because of their allergies. This bullying can take a life-threatening turn when the bully exposes the victim to the allergen. This article is the first major legal analysis of food allergy bullying. It explores the legal system’s failure to adequately address the problem of food allergy bullying and makes the case for focusing on the potential tort liability of the bully’s parents. Parents who become aware of their child’s bullying behavior and fail to take adequate steps to stop it are tacitly encouraging it and should be liable for their child’s conduct. So too should parents who enable the bullying by flouting school policies and sending their child to school with a prohibited food that is then used to bully or by modeling intolerant behavior that their child mimics at school. This will ensure that parents who contribute to their child’s bullying are held accountable and that the bully’s victim receives justice.

IL: Suit Claims Jimmy John's "Freaky Fast" Delivery Slogan Led to Accident

A mother and daughter injured in an auto accident claim that Jimmy John's "freaky fast" delivery slogan is responsible.  The Madison-St. Clair Record has details.

Monster Energy Drink Wins Jury Verdict in Texas

Monster Beverage Corp., makers of Monster Energy drinks, has been hit with numerous products liability suits alleging its drinks cause heart attacks.  Some of those cases have been settled, but many have been dismissed.  In the first case to reach a verdict, a Texas jury deliberated for just 15 minutes before deciding that a Monster Energy drink did not lead to a heart attack for the then-18-year-old plaintiff.  The company argues its product is safe and that a 16-ounce drink has less caffeine (160 mg) than a 16-ounce cup of Starbucks coffee (310 mg).  The Bristol Herald Courier has details.

Lytton on Tort Law and Food Safety

Tim Lytton has posted to SSRN Exposing Private Third-Party Food Safety Auditors to Civil Liability for Negligence:  Harnessing Private Law Norms to Regulate Private Governance.  The abstract provides:

In many industries, companies rely on private third-party audits to monitor their suppliers’ adherence to various standards. These audits are frequently paid for by the entity being audited, which creates a conflict of interest that incentivizes auditors to reduce the burden of audits by cutting corners and inflating audit scores. This article presents a case study of food safety audits in the fresh produce sector. It explains why large commercial buyers of fresh produce rely on private third-party audits paid for by growers despite the conflict of interest, and it argues that exposing auditors to civil liability for negligence would improve the rigor and reliability of these audits. The article concludes with a more general analysis of how the private law norms of duty and reasonable care imposed by civil liability can improve private governance.

Family of Peanut-Allergic Girl Sues Panera Bread over Peanut Butter in Grilled Cheese Sandwich

The family of a 6-year-old girl who is allergic to peanuts is suing Panera Bread for negligence, based on an incident in which the restaurant added peanut butter to a grilled cheese sandwich despite a warning the girl had a peanut allergy.  The restaurant blamed the incident on a language issue.  The family heard of a similar incident in a Panera Bread not far from them.  The Boston Globe has the story.

Coomer v. Kansas City Royals Decided

On Tuesday, the Supreme Court of Missouri issued an opinion in Coomer, the case of the fan injured by a flying hot dog.  The court ruled that getting hit with a hot dog is not an inherent risk of baseball and the trial judge should not have allowed an assumption of risk instruction.  The opinion is here.  Alberto Bernabe, who has followed the case, has comments here.  Michael McCann wrote a guest post for TortsProf in 2010 that foreshadowed the holding.

--CJR

Chef Eduardo Garcia Update

Here's a good story for the holidays.  John Hochfelder shares news of his former client, recovering from injuries suffered from electrocution.  Chef Eduardo Garcia is in this week's People Magazine and will be on Good Morning America soon.

--CJR

The Food Court

The Recorder has an interesting article about the "food litigation" docket in the Nothern District of California.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Burger King, Spit, and Emotional Damages in Products Liability

A suit over a burger, spat upon by an employee of Burger King, resulted in the Ninth Circuit certifying a question to the Washington Supreme Court.  Plaintiff developed an uneasy feeling after receiving a Whopper with cheese.  When he lifted the bun, he saw a "slimy, clear and white phlegm glob" on the burger.  The glob was tested and was a DNA match with one of Burger King's employees, who pled guilty to felony assault.  Plaintiff claims ongoing emotional distress.  The district court granted judgment on the pleadings to Burger King.  On appeal, the Ninth Circuit certified the following question:  “Does the Washington Product Liability Act permit relief for the emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?”

The case is available here.  (Link has been fixed)

Thanks to Susan Raeker-Jordan for the tip.

--CJR

Alcohol and the Restatement of Torts

What did the drafters of the Restatement (Second) of Torts drink as they prepared it?  Kyle Graham has answers at Co-Op. 

--CJR

TX: Four Loko Stroke Case Filed

A Texas man has filed products case against the manufacturer of Four Loko, alleging that the combination energy drink/alcoholic beverage caused him to suffer a stroke.  He seeks $75,000 in compensatory damages, as well as punies.  AboutLawsuits.com has the story.

--CJR

SC of IL: No Social Host Liability for Underage Drinking Despite Voluntary Undertaking Argument

Late last week, the Supreme Court of Illinois denied liability in a social host case for underage drinking.  Plaintiff's decedent, age 18, attended a party at defendants' house.  He was a friend of the defendants' son, who was hosting the party.  Plaintiff's decedent allegedly consumed alcohol at the party.  Shortly after leaving the house, he died in an automobile accident.  The interesting doctrinal angle is the allegation that the defendants made a voluntary undertaking to supervise the party and prohibit drinking.  The Restatement (Second) on voluntary undertaking is discussed in detail.  The case is available here.

Thanks to Mark Weber (DePaul) for the tip.

--CJR

Hot Nacho Suit Against Disney

In March 2010, a California family visited Walt Disney World in Orlando, Florida, with their four-year-old son Isaiah.  While there, they bought some nachos as a snack.  Those nachos "were spilled" on Isaiah, who suffered burns. 

They've now sued Disney in a suit that might -- sort of -- echo the famous/infamous Liebeck coffee case, though there are some obvious differences (age of the plaintiff, the particular way the injury occurred, etc.). 

The complaint is available here (PDF), and the exhibit, with a photo of the boy's burns, is available here (PDF).

According to at least one vendor's website, nacho cheese is held from 140-155 degrees.

--BC

Kucinich Suing Over Olive Pit

Per Gawker, Rep. Dennis Kucinich is suing the companies that supply and operate the House of Representatives cafeteria for damages caused by the presence of an olive pit in a wrap he purchased about three years ago.

--BC

Olson on the Happy Meal Lawsuit

Walter Olson takes on the Happy Meal lawsuit in a guest column at New York Daily News.  ("McDonald's suit over Happy Meal toys by California mom Monet Parham new low in responsible parenting")

--CJR

A Sequel to the McDonald's Coffee Case

A man going through a McDonald's drive-thru in Virginia was allegedly burned by the grease from a chicken sandwich.  When he took a bite, “the grease from the inside of the chicken sandwich spread out all over my bottom lip, my top lip, down onto my chin.” When he complained to a McDonald's employee, another employee allegedly stated, “This is what happens to the sandwiches when they aren’t drained completely.” The Fourth Circuit vacated judgment for the defendants and remanded the case for trial.  The opinion in Sutton v. Roth, L.L.C. is here.  The story is from VLW Blog.

--CJR