Hot Nacho lawsuit

[Primus]

Are you defining "sensitive areas" as anywhere but the palms of your hands? Because any of my skin that is regularly exposed in public is pretty tough.

I knew there was a reason for having an unusually leathery johnson

 

[fetchbeer]

I've always assumed that the occasional disfiguring burn was part of growing up.

I know my own curiosity got me injured several times as a kid.

One time, while either my sister or my mom was getting their hair done, I grabbed the curling iron with my bare hand. Needless to say, this resulted in a rather severe burn. I didn't get taken to the doctor or anything, I got given a bag of frozen peas to hold.

Another time my mom was shopping and I was being taken along. On the checkout counter in one store there was a candle in a jar. I was curious, so I picked up the candle, and tipped it over so I could see inside, spilling molten wax on myself. Again I think I was given a bag of peas.

I can't remember any of the trauma that comes with these burns. There was no lawsuit, no doctor visits, nothing. I can't even tell you where exactly I got burned. And I wasn't too much older when I did these things to myself.

2 years ago I laid my wrist on a fresh weld, which had just cooled enough that it wasn't glowing anymore. I had an impressive second degree burn across my forearm, and had a bandage on it for a few weeks, and got myself a bag of frozen peas to hold against it. Now I can't even remember which arm it happened too, as I can't find a scar.

For injuries such as this, where it is more than likely the child's own fault, I don't see any need for compensation beyond medical bills (all I got was a few bags of frozen peas) and I highly doubt that there will be any permanent damage resulting from this.

Now what I did to myself with a disc sander left a much more interesting scar than my multiple instances of getting myself burned.

 

[Arus808]

ahh bags of frozen peas....such an awesome substitute for ice in a bag ^_^

 

[JoelKatz]

nacho cheese should NOT be that hot.

That's a horrific injury, but unfortunately, it routinely is that hot. Nacho cheese is routinely served by people at home at its boiling point, which is as hot as it is possible to get it. It is not negligence to serve a food in a manner in which it is routinely served and there is no claim for a risk inherent in the food as it is routinely served.

Note that whether it's also routinely served at lower temperatures isn't relevant. Any company can serve food in any manner in which it is customarily served.

This was a horrible, improbable accident. It's akin to dying from a papercut you got from opening an envelope. It's not anyone's fault and there should be no tort liability.

"Nobody has a reasonable expectation that it be served at a temperature causing immediate and severe burns on contact."

Perhaps true, but completely irrelevant. It is well-settled law that there is no obligation to warn about the severity of obvious risks. If it were otherwise, every warning would mention that you can die, reducing the impact of warnings about truly dangerous things. This was another "died from a papercut" case. You can't warn about their severity. The risk of a burn is obvious. The severity can run all the way to death under improbable conditions, as it can from every possible injury.

We routinely cavalierly handle objects that can kill us. We drive cars, we carry hot coffee, and we eat cheeseburgers (you can choke to death on them). Every once in a while, even though nobody did anything wrong, someone will get horribly injured by an ordinary household object. These things are rare, but they do happen. It's nobody's fault. I serve nacho cheese boiling routinely, though I always spread it on chips so it probably cools pretty quickly.

 

[ZirconBlue]

This was a horrible, improbable accident. It's akin to dying from a papercut you got from opening an envelope. It's not anyone's fault and there should be no tort liability.

Perhaps true, but completely irrelevant. It is well-settled law that there is no obligation to warn about the severity of obvious risks.

Yet, strangely, people do sue over these sorts of injuries. And, sometimes, they win. So, perhaps it is not such "well-settled law" as you'd like to present it.

ETA: And is it really an "obvious risk" that, just by virtue of being in a restaurant, you may be subjected to 3rd-Degree burns from another patron's nacho "cheese"?

 

[TjW]

I've always assumed that the occasional disfiguring burn was part of growing up.

I know my own curiosity got me injured several times as a kid.

One time, while either my sister or my mom was getting their hair done, I grabbed the curling iron with my bare hand. Needless to say, this resulted in a rather severe burn. I didn't get taken to the doctor or anything, I got given a bag of frozen peas to hold.

Another time my mom was shopping and I was being taken along. On the checkout counter in one store there was a candle in a jar. I was curious, so I picked up the candle, and tipped it over so I could see inside, spilling molten wax on myself. Again I think I was given a bag of peas.

I can't remember any of the trauma that comes with these burns. There was no lawsuit, no doctor visits, nothing. I can't even tell you where exactly I got burned. And I wasn't too much older when I did these things to myself.

2 years ago I laid my wrist on a fresh weld, which had just cooled enough that it wasn't glowing anymore. I had an impressive second degree burn across my forearm, and had a bandage on it for a few weeks, and got myself a bag of frozen peas to hold against it. Now I can't even remember which arm it happened too, as I can't find a scar.

For injuries such as this, where it is more than likely the child's own fault, I don't see any need for compensation beyond medical bills (all I got was a few bags of frozen peas) and I highly doubt that there will be any permanent damage resulting from this.

Now what I did to myself with a disc sander left a much more interesting scar than my multiple instances of getting myself burned.

So... all you are saying is: "Give peas a chance".

 

[Region Rat]

The Mexican restaurant that I frequent serves Fajitas on cast iron skillets that are sizzling and steaming when they deliver it to the table. The waiter unfailingly says "Hot plate, don't touch". If a parent had a small child at his table, and the kid reached up and grabbed the skillet, he would receive a terrible burn.

Is this the fault of the Mexican restaurant, and should they be held liable for the child's burns?

I'm sure some would say that there is no reason for any restaurant to serve food on cast iron hot enough to cause serious burns, and that it is not customary at home to do so. However, many places do. Who is responsible to prevent kids from burning themselves on it?

 

[Cavemonster]

The Mexican restaurant that I frequent serves Fajitas on cast iron skillets that are sizzling and steaming when they deliver it to the table. The waiter unfailingly says "Hot plate, don't touch". If a parent had a small child at his table, and the kid reached up and grabbed the skillet, he would receive a terrible burn.

Is this the fault of the Mexican restaurant, and should they be held liable for the child's burns?

I'm sure some would say that there is no reason for any restaurant to serve food on cast iron hot enough to cause serious burns, and that it is not customary at home to do so. However, many places do. Who is responsible to prevent kids from burning themselves on it?

It seems like those restaurants do a good job of pointing out the risk.

And the fact that they do underlines that most people, reasonably, assume that food served to them is generally not served at dangerous temperatures.

 

[JoelKatz]

Yet, strangely, people do sue over these sorts of injuries.

Because, unfortunately, not all of our judges care as much about following the law as they should.

And, sometimes, they win.

Ditto for juries. This is especially true when you have a sympathetic plaintiff and the jury just wants to help them.

So, perhaps it is not such "well-settled law" as you'd like to present it.

It is completely well-settled. Were it not so, *every* warning would have to warn about the possibility of death because any injury can, under sufficiently unfortunate circumstances, result in death. That outcome would benefit nobody, it would lead to warnings with more words but less content.

Can you honestly claim, with a straight face, that some kind of warning would have made any difference in this case?

ETA: And is it really an "obvious risk" that, just by virtue of being in a restaurant, you may be subjected to 3rd-Degree burns from another patron's nacho "cheese"?

No, but there is no requirement that the possible severity be obvious. *Any* injury can result in death. This is one of those cases where an unfortunate confluence of improbable circumstances that is nobody's fault resulted in a horrible injury.

One can get a paper cut opening an envelope. One can die from a paper cut, infection with a resistant strain of bacteria can lead to sepsis. Should every envelope have a warning that opening it can kill you? Yes or no?

 

[Kahalachan]

My kid got a skinned knee. I'm suing god for making the ground so hard.

 

[Region Rat]

It seems like those restaurants do a good job of pointing out the risk.

And the fact that they do underlines that most people, reasonably, assume that food served to them is generally not served at dangerous temperatures.

That's not the point. What does a small child know about warnings. If the child is placed close enough to grab at the hot plate (like this child was close enough to grab at a cup of hot cheese), how is it the restaurants fault?

If Disney would have told the parents "Hot melted cheese, don't splash on your skin", and the kid grabbed the cup and got burned, would all of this conversation be moot?

Shouldn't reasonable adults know that to turn a solid into a liquid would mean it would be hot?

 

[Cavemonster]

That's not the point. What does a small child know about warnings. If the child is placed close enough to grab at the hot plate (like this child was close enough to grab at a cup of hot cheese), how is it the restaurants fault?

If Disney would have told the parents "Hot melted cheese, don't splash on your skin", and the kid grabbed the cup and got burned, would all of this conversation be moot?

Shouldn't reasonable adults know that to turn a solid into a liquid would mean it would be hot?

When a parent is in a mexican restaurant and a hot metal fajita skillet is presented with a warning, it's very reasonable to make a special effort to keep young children away from it and keep an eye on them.

When food is served in a paper cup, for a finger food (nachos) at a theme park for children, it may generally be assumed that it isn't being served at temperatures where skin contact will cause 3rd degree burns.

You're conflating hot with dangerous and making a factual error. The cheese sauce served for nachos is not a solid in it's cooled state and hot covers a broad range of temperatures. We generally assume that a food we pick up with our fingers is not so potentially dangerous.

And again, I ask you: If people are supposed to reasonably assume that all warmed food is so dangerous, then why do Mexican restaurants give that special warning?

 

[ZirconBlue]

Can you honestly claim, with a straight face, that some kind of warning would have made any difference in this case?

No. I don't think a warning is the solution in this case. Assuming that events transpired as presented, I think the cheese was probably just served too hot.

When food is served in a paper cup, for a finger food (nachos) at a theme park for children, it may generally be assumed that it isn't being served at temperatures where skin contact will cause 3rd degree burns.

You're conflating hot with dangerous and making a factual error. The cheese sauce served for nachos is not a solid in it's cooled state and hot covers a broad range of temperatures. We generally assume that a food we pick up with our fingers is not so potentially dangerous.

I agree with Cavemonster.

 

[JoelKatz]

No. I don't think a warning is the solution in this case. Assuming that events transpired as presented, I think the cheese was probably just served too hot.

Nacho cheese sauces are routinely served in homes very near their boiling point. It cannot be negligent to serve a food in any manner in which it is routinely served.

In this case, there's no failure to warn and there's no negligence. Strict liability is defeated for three reasons -- the food was served as it is routinely served, the product was not used as intended, and the alleged defect could not have caused the injury but only affected its severity. So what's left?

I agree with Cavemonster

I don't. We understand that we interact with a large number of objects every day that could, under the right improbable circumstances, kill us.

 

[Cavemonster]

I don't. We understand that we interact with a large number of objects every day that could, under the right improbable circumstances, kill us.

Food spills are not improbable. They are commonplace.

Skin contact with finger foods at a theme park catering to children are inevitable.

 

[JoelKatz]

Food spills are not improbable. They are commonplace.

I agree. However, the types of spills that occurred in this case (and the Liebeck case) were unusual, improbable spills.

Skin contact with finger foods at a theme park catering to children are inevitable.

True, and minor finger, tongue, and mouth burns are quite commonplace and accepted with hot foods generally.

Under the right combination of unfortunate circumstances, though, these ordinary, accepted, obvious risks can have horrific results. Opening an envelope can kill you if everything goes wrong. If we were talking about either a risk that is not obvious or a food that was served in a manner in which it is never customarily served, my opinion on this case would be very different.

 

[truethat]

Looking at the image of the child, I noticed something that strikes me as odd, but I have no idea if it would make a difference....you know, if it matters...or even if it's true. But that burn looks to me more like one you'd get if you'd tried to drink the cheese, rather than a "splash" gotten while trying not to fall.

I don't see why it couldn't have happened as the article says, don't get me wrong. It just looks more like he tried to drink it. The article says "paper cup." Drinking cup? Or restaurant service cup, like a small dish or bowl?

Anyway, I find it kind of...odd.

I agree, the kid definitely tried to drink it but they spun it to make sure there was no chance of liability on the parents for letting him drink Nacho cheese.

Also my immediate gripe on this was "Who feeds a four year old Nacho Cheese? It's disgustingly unhealthy.

But still that was waaaaaaaay too hot. So they ought to win. Period the end. You have a child amusement park. People will be idiots so you need to CYA. Too bad for them. Hope the kid heals.


And to close, a joke (one of my favorites!)

What do you call cheese that doesn't belong to you?

Nacho cheese!

 

[Cavemonster]

I agree. However, the types of spills that occurred in this case (and the Liebeck case) were unusual, improbable spills.

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.

 

[truethat]

The Mexican restaurant that I frequent serves Fajitas on cast iron skillets that are sizzling and steaming when they deliver it to the table. The waiter unfailingly says "Hot plate, don't touch". If a parent had a small child at his table, and the kid reached up and grabbed the skillet, he would receive a terrible burn.

Is this the fault of the Mexican restaurant, and should they be held liable for the child's burns?

I'm sure some would say that there is no reason for any restaurant to serve food on cast iron hot enough to cause serious burns, and that it is not customary at home to do so. However, many places do. Who is responsible to prevent kids from burning themselves on it?

As a waiter who has served fajitas I would say that I wouldn't place it on the table near a child and would probably offer to transfer it to a different plate before serving it at the table. There's no way in hell I'd plot a fajita pan down on the table and say "Don't touch it's hot!" Just wouldn't do it. I served that way for adults but never with little kids at the table. I'd always offer to transfer it to a plate.

 

[JoelKatz]

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.

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.

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

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.