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Fast-food products case revived

Remember the infamous McDonald’s hot coffee case from the 1990s? Virginia has been brewing its own burn case against McDonald’s since 2005, and now the 4th Circuit has ordered a new trial for a man who alleges burns from fast food.

Boasting its own Wikipedia entry, the hot-coffee incident at an Albuquerque McDonald’s in 1992 was the shot heard ‘round the world for tort-reform proponents.

But in the Virginia case, it wasn’t coffee that did the alleged damage. It was schmalz.

Frank Sutton and his family pulled into the Daniel Boone Truck Stop in Duffield on Aug. 8, 2005, and ordered some food from the attached McDonald’s. When Sutton 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.” His wife took ice from her drink to treat the blisters that popped up. Sutton complained to the McDonald’s employees, and allegedly heard one employee tell another, “This is what happens to the sandwiches when they aren’t drained completely.”

The burns continued to aggravate him for months, Sutton said, especially when exposed to sunlight as he worked outside refurbishing outdoor amusement rides. Sutton sued McDonald’s and its local franchisee, Roth LLC, for $2 million. An Alexandria U.S. District Court granted judgment to the defendants, but the 4th U.S. Circuit Court of Appeals yesterday vacated Sutton v. Roth LLC and sent the case back for trial.

In an unpublished opinion, Judge Dennis W. Shedd agreed that Sutton could not rely on Virginia’s “unwholesome food jurisprudence,” as there was no evidence of a “foreign object” in the chicken sandwich.

Shedd dropped a finger-lickin’ footnote with a reference to the Harris-Teeter bird-on-a-birthday cake case, noting that “hot grease is necessary and expected (even desired) for fried chicken.”

But Shedd said the district court should have let Sutton use the employee’s alleged statement about what happens when the sandwiches are not drained. The district court excluded the statement because Sutton failed to prove an agency relationship to connect the statement back to the corporate defendant.

Applying “walks like a duck” jurisprudence, Shedd said the speaker “was wearing a McDonald’s uniform, helped fill Sutton’s order, and responded to questions about McDonald’s while working at a McDonald’s restaurant.”

Excluding the statement eliminated Sutton’s standard-of-care evidence, so the case had to go back. The alleged statement, supported by Sutton’s evidence of “reasonable consumer expectations,” was enough to get him in front of another jury.

Judge Andre M. Davis dissented, saying the “drain the sandwich” comment was inadmissible hearsay and that the uniformed person who allegedly made the comment possibly “was not even on duty that night.” Davis also indicated the majority plucked the “reasonable expectations of consumers” notion from dicta in a 4th Circuit case not cited or argued by the plaintiff to establish the standard of care in a products case.
By Deborah Elkins

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