Hot Nacho lawsuit

[truethat]

I'm sure you do disagree with me, but nothing you've stated above disagrees with anything I said or explains why you disagree with me. Improbable events happen all the time. In fact, most events that actually occur are absurdly improbable. (Don't believe me? Throw a piece of paper onto the floor. Then calculate the probability that a piece of paper would follow precisely that path.)

McDonald's recorded 700 serious complaints about the temperature of their coffee in 10 years. Yet, for the number of cups of coffee consumed, this was fewer than the expected number of people who would choke severely (requiring assistance) on a comparable number of burgers.

Your "given the volume" backs up my claim that these events are improbable.

I don't doubt it, but that's irrelevant. It is not legally negligent to serve a food item any way it is customarily served. Many home cooks customarily serve nacho cheese sauce at very near boiling temperature. I do -- I heat it until it bubbles and then I serve it.

I think you can make an argument that this is a defect in the law. Perhaps there might be special circumstances about a restaurant where serving a food, even in a manner in which it is customarily served other places, might be unreasonably dangerous in a particular location or circumstance. But so far as I know, there is no jurisdiction in which this is the law. (And for a more or less good reason -- such exceptions would mean that a *product* might be defective in some contexts and not others, even though it was designed for the same use. There really is no law of combined product and circumstance liability.)

It wouldn't apply anyway in this case. There was nothing so unusual about these circumstances. You could make this kind of argument if the kid himself had ordered the nacho cheese sauce -- just as a chainsaw may not be defective or negligently manufactured, but you don't hand a running one to a five year old.

I think a slight difference would be that Disney is not a food establishment. They are an amusement park aimed at kids. The food is secondary there as is typical of all other types of kids amusement parks. So they need to really pay attention to their choices. Hot hot nachos with cheese hot enough to do that kind of damage to a kid is just an accident waiting to happen.

 

[casebro]

REAL Nacho's are made with REAL Cheese, grated and sprinkled on cold chips, then heated until the cheese melts.

"Bucket O' Cheese Food" is hazardous in more ways than one.

 

[Region Rat]

REAL Nacho's are made with REAL Cheese, grated and sprinkled on cold chips, then heated until the cheese melts.

"Bucket O' Cheese Food" is hazardous in more ways than one.

You've got that right. The worst product in the world is the bag of non-dairy cheese food product that is liquid at room temperature which is poured into ball park nacho cheese dispensers. Yuck.

To melt real cheese on nachos takes some heat.

 

[JoelKatz]

I think a slight difference would be that Disney is not a food establishment. They are an amusement park aimed at kids. The food is secondary there as is typical of all other types of kids amusement parks. So they need to really pay attention to their choices. Hot hot nachos with cheese hot enough to do that kind of damage to a kid is just an accident waiting to happen.

I agree, but it doesn't matter legally. Unless there was some negligence other than the condition of the food that contributed to the accident (like a slippery floor or seat, improperly designed cup, or the like), the only argument left is that the food itself was unreasonably dangerous. This argument is defeated by the fact that nacho cheese sauce is routinely served at homes around the country just slightly below its boiling point.

If I were the Plaintiff's lawyer in this case, I would allege that the design of the cup was a major factor in the accident. It's not true, but it would probably get my case to a jury. Once the jury sees the cute kid with the horrible injuries and hears my experts claim nobody (sort of) serves nacho cheese sauce that hot, I'll probably win big against the evil, faceless corporation.

On the bright side, if he only recovers his actual medical expenses, the harm is pretty minimal. And the fact that he will get medical care without causing his parents financial pain is a good thing. Though it's definitely not the law, I think the good would likely outweigh the bad from a moral perspective. However, if he gets huge pain and suffering or punitive damages, then we all pay higher ticket prices so his parents (and everyone's lawyers) can go to Hawaii.

 

[Cavemonster]

I'm sure you do disagree with me, but nothing you've stated above disagrees with anything I said or explains why you disagree with me. Improbable events happen all the time. In fact, most events that actually occur are absurdly improbable. (Don't believe me? Throw a piece of paper onto the floor. Then calculate the probability that a piece of paper would follow precisely that path.)

McDonald's recorded 700 serious complaints about the temperature of their coffee in 10 years. Yet, for the number of cups of coffee consumed, this was fewer than the expected number of people who would choke severely (requiring assistance) on a comparable number of burgers.

Your "given the volume" backs up my claim that these events are improbable.

If you keep insisting that a child spilling food on himself is highly improbable, I'll be forced to conclude that you have never spent time with children.

 

[truethat]

I agree, but it doesn't matter legally. Unless there was some negligence other than the condition of the food that contributed to the accident (like a slippery floor or seat, improperly designed cup, or the like), the only argument left is that the food itself was unreasonably dangerous. This argument is defeated by the fact that nacho cheese sauce is routinely served at homes around the country just slightly below its boiling point.

If I were the Plaintiff's lawyer in this case, I would allege that the design of the cup was a major factor in the accident. It's not true, but it would probably get my case to a jury. Once the jury sees the cute kid with the horrible injuries and hears my experts claim nobody (sort of) serves nacho cheese sauce that hot, I'll probably win big against the evil, faceless corporation.

On the bright side, if he only recovers his actual medical expenses, the harm is pretty minimal. And the fact that he will get medical care without causing his parents financial pain is a good thing. Though it's definitely not the law, I think the good would likely outweigh the bad from a moral perspective. However, if he gets huge pain and suffering or punitive damages, then we all pay higher ticket prices so his parents (and everyone's lawyers) can go to Hawaii.

Sure, but in reality Disney prides itself on being the "happiest place on earth" and so I am sure they will settle the lawsuit. Pictures of a scarred burned child kinda go against their theme.

 

[JoelKatz]

If you keep insisting that a child spilling food on himself is highly improbable, I'll be forced to conclude that you have never spent time with children.

No, the circumstances of this accident are largely very probable. The outcome was highly improbable. Paper cuts happen all the time and people can die from them. But getting a paper cut and dying from it is spectacularly improbable.

We generally accept the risk that children will spill hot food on themselves and injure themselves for good reasons. While injuries are common, they are generally not serious, and learning how to handle hot food is something we consider a basic human skill. This will mean the occasional child gets a serious injury or even dies. Rational parents even let their children ski or play tackle football.

Sure, but in reality Disney prides itself on being the "happiest place on earth" and so I am sure they will settle the lawsuit. Pictures of a scarred burned child kinda go against their theme.

True. If they can reach a reasonable settlement and end things on good terms, that's probably more important to Disney than vindicating some legal point that doesn't seem very fair anyway. Giving a lot of money to their lawyers doesn't buy them much in the PR department. Giving $30,000 to this kid is cheaper than a TV commercial and may buy them more consumer awareness and goodwill than a commercial.

 

[ponderingturtle]

I disagree. Given the volume Disney parks see, the fact that it's very crowded and that everyone is there with kids, the fact that it's located in warm weather and is active, so most are dressed with lots of skin showing, I think it's safe to say that spills involving significant skin contact with every food they serve to children happens at least several times a day.

That's why it's my suspicion that the cheese was served at above company policy temperature. These warmers generally have a dial.

Maybe. It could also be that the cheese needed to be this hot for reasons of sanitation. In this case I don't think I have enough information to come to a conclusion about who should be at fault.

 

[Cavemonster]

No, the circumstances of this accident are largely very probable. The outcome was highly improbable. Paper cuts happen all the time and people can die from them. But getting a paper cut and dying from it is spectacularly improbable.

Yes, improbable things happen, but they don't just materialize from the either, they are the result of events and circumstances. Let's look at your paper cut example.

For someone to die from a paper cut, it must become infected, either by a rare infectious agent deadly enough to do someone in, or by a more common bug not well taken care of. In the first case, it is impossible for even a well cleaned restaurant to see or protect against any random floating germ, so it isn't reasonable to expect them to have prevented it. In the second case, first aid for cuts is very widely known, medical reaction to infection begining to spread is well known, the person with the paper cut should have prevented this.

Do you see how even wildly unlikely outcomes have actual causes and we can measure whether it is reasonable to expect someone to prevent it?

In the case of the cheese, what is the cause? After the spill, what caused the cheese to do more damage than may be expected? Was it invisible germs in the air? No. We understand pretty well how burns happen and there are really only two factors at work. There is the temperature and how long it was in contact with the skin. Now unless the cheese sat on the kid's face for several minutes, which I highly doubt with the fuss he'd be making with a face full of hot cheese, then the factor that made this outcome happen was the temperature of the cheese.

Unlike random germs blowing in the wind looking for papercuts, this is under the direct control of the proprietor.

 

[JoelKatz]

Now unless the cheese sat on the kid's face for several minutes, which I highly doubt with the fuss he'd be making with a face full of hot cheese, then the factor that made this outcome happen was the temperature of the cheese.

Again, there is no obligation to warn about the possible severity of injuries from obvious risks. And it's absurd to argue that a warning would have made any difference in this case.

A food is not unreasonably dangerous if served in any manner in which it is customarily served, whether or not it is also customarily served in other ways that may be safer.

Unless you can find some significant factor other than the heat of the cheese or the severity of the injuries, there's no case. The suitability of the cup may be the best way to go.

This is an argument from personal incredulity, but I also find it hard to believe that anyone can argue with a straight face that nacho cheese sauce served at 180F is "unreasonably dangerous". Whereas, they could make that argument where a food, for example, contains a concealed pocket of very hot grease even though the outside may be much cooler.