The New Jersey media is buzzing with news that a woman, Jennifer Fragoso (“Ms. Fragoso”), is suing Dunkin’ Donuts for a burn she says was caused by hot apple cider that was “too hot.” The main question that comes from this lawsuit is to what extent can society hold a fast food chain liable? Where do we (society) draw the line?
Taking a stroll down memory lane, most people remember the infamous 1994 lawsuit involving McDonald’s hot coffee. Liebeck v. McDonald’s Restaurants involved a woman who suffered third-degree burns when she spilled hot coffee from McDonald’s. A New Mexico jury awarded the Plaintiff a whopping $2.86 million. The Judge later reduced the verdict to $640,000 and the case was ultimately settled out of court for an undisclosed amount. It is important to note that this case had a significant impact on tort reform.
The current lawsuit, Fragoso v. Dunkin’ Brands, Inc. d/b/a Dunkin Donuts, was filed on February 11, 2014 and includes counts for negligence, product liability and breach of express and implied warranties. Ms. Fragoso spilled the apple cider while sitting in her parked car. Ms. Fragoso claims the apple cider was heated “beyond industry standards to the point where patrons could not safely consume it because it was not reasonably fit, suitable or safe for its intended purpose.” As a result of the high temperature of the apple cider, Ms. Fragoso suffered second and third degree burns. Ms. Fragoso is left with permanent scaring on her upper thighs.
The complaint focuses on the temperature of the drink. Ms. Fragoso’s attorney, Amos Gern (“Attorney Gern”), has stated that, “We can’t avoid the obvious—obviously the drink was supposed to be hot and it was hot.” However, Attorney Gern argues that if the drink were at a reasonable temperature, it would not have caused Ms. Fragoso to suffer second and third degree burns.
A spokeswoman for Dunkin’ Brands has stated that all Dunkin’ Donuts’ hot beverage cups display a warning that clearly reads, “CAUTION: THIS BEVERAGE IS EXTREMELY HOT.” While this may be true, the question that will be the center of this lawsuit is whether a warning on the cup absolve Dunkin’ Donuts of all responsibility?
After hearing this comment from Dunkin’ Donuts, Attorney Gern stated, “That’s a specious argument. No one suggests it didn’t have a warning. We know it’s hot. Obviously, Attorney Gern is not worried about whether the warning on the cup absolves Dunkin’ Donuts of liability. Attorney Gern maintains his argument (that the temperature of the apple cider was too high) is sound. But will experts prove him wrong? Will a jury find otherwise?
At quick glance, the case law appears to be on Ms. Fragoso’s side. But is it really? The fact that Liebeck v. McDonald’s Restaurants settled for an undisclosed amount may be in Ms. Fragoso’s favor. Ms. Fragoso may be able to use that case to prove liability. Ms. Fragoso could argue that McDonald’s was found liable and so should Dunkin’ Donuts.
The Liebeck case can also be seen as a huge obstacle for Ms. Fragoso. If Ms. Fragoso’s lawsuit does go to trial, it will be hard to find a juror who has not heard about the Liebeck v. McDonald’s Restaurants case. The jurors may not be impartial to Ms. Fragoso’s case.
Michael Kraemer is a partner with Kraemer, Manes & Associates, a law firm headquartered in Pittsburgh, serving all of Pennsylvania, with attorneys focusing on business law, employment law, litigation, and civil issues. For more information please visit www.lawkm.com.