Most people start their morning by heading to their local coffee shop and purchasing a coffee or tea of their choice. This is part of many people’s morning rituals and it’s why businesses like Dunkin’ Donuts and Starbucks are wildly successful.
In the colder months, hot beverages are the popular choice, especially when the temperature drops below freezing. But, as the following case shows, an overheated beverage can sometimes be dangerous. Many people are unaware of just how hot liquid beverages need to be to be tasty, and the question may be raised of how hot is too hot for consumption?
Hot Beverage Lawsuits
Over the years, there have been countless lawsuits against popular beverage companies like Dunkin’ Donuts. In fact, it’s estimated that on any given day, there are roughly 10 hot tea, hot coffee and hot chocolate lawsuits in progress. The majority of these lawsuits revolve around coffee burns or someone getting burned by a spilled hot beverage, according to Dan Cox. Cox is an expert witness and legal consultant for hot beverage lawsuits who says that the cases are so common, he even wrote a book about it called “Handling Hot Coffee.”
Fragoso v. Dunkin’ Brands, Inc.
Cox did not represent the client in the following case, although he has represented many others, testifying for defendants and plaintiffs. On February 11, a New Jersey woman sued Dunkin’ Donuts after she claimed a cup of hot apple cider spilled on her lap, leaving her with burns and permanent scars on her thighs. The lawsuit was filed against Dunkin’ Brands, Inc. and the Belleville, N.J. location.
Jennifer Fragoso, 24, claimed that Dunkin’ Donuts failed to provide her with a beverage of a reasonable temperature, causing her to suffer severe burns, and spend thousands of dollars on medical care. Fragoso, a resident of Essex County, charged the business and the individual location with negligence, breach of express and implied warranties, and product liability. She also claimed that the company put her in danger by heating her drink to excess.
Belleville Dunkin’ Donuts
The alleged incident happened in September 2012, when Fragoso was sitting in her car parked outside of the Belleville Dunkin’ Donuts location, when the lid on her hot apple cider came loose, spilling the drink onto her lap. She claimed to have suffered second and third degree burns as a result of the spill and spent several months undergoing treatment and therapy at the Burn Center of St. Barnabas in New Jersey.
Too Hot for Consumption?
Even after a few months and many rounds of treatment, Fragoso claimed she still had unsightly, permanent scarring across her upper thighs and she may even need to have surgery in the future. In her lawsuit, she didn’t blame the company for failing to provide adequate warnings, or for giving her a faulty cup or lid. Instead, it was for failing to ensure that the beverage was “just right.” But what does this mean?
“Beyond Industry Standards”
While Fragoso wanted a hot apple cider, she claimed the degree to which her cider was heated was “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.” Amos Gern, the attorney who represented Fragoso, told ABC News that his client’s lawsuit was anything but frivolous.
Gern describes his client as a “24-year-old attractive young lady” who now, as a result of her burns, has scars on her inner thighs, “full thickness scars that cannot heal and will never heal.” He even says that for an idea of what they look like, viewers can watch the 2011 documentary “Hot Coffee,” which depicts Fragoso’s burns.
Warning on Cup
In response to the lawsuit, a spokeswoman for Dunkin’ Brands told ABC News that she was unable to comment on the matter. She did, however, confirm that all Dunkin’ Donuts’ hot beverage cups display a warning that reads, “CAUTION: THIS BEVERAGE IS EXTREMELY HOT.” But did this warning absolve Dunkin’ of responsibility?
The Attorney’s Point of View
Gern says, “That’s a specious argument. No one suggests it didn’t have a warning. We know it’s hot.” He claims the warning provides Dunkin’ Donuts with an opportunity to argue that the purchaser didn’t handle the cup correctly. “We know that’s the approach they will want to take,” Gern said. However, the issue is that the temperature of the cider was too high. This is where things get tricky …
Gern said that you can’t get third degree burns unless it’s too hot for consumption. But Dan Cox, the author of “Handling Hot Coffee,” disagrees. It’s believed that the fast food industry has reduced the temperature of hot beverages in response to the infamous 1994 McDonald’s suit, but, according to Cox, this belief is wrong. He claims that the reason is that there are minimum and maximum temperature ranges necessary to extract the flavor of hot beverages.
All of these temperatures “are well above the threshold for burning,” he said. Cox offers the comparison that the temperature of very hot bathtub water would be 105 degrees, while a steaming hot shower would be about 120. Brewing coffee is 195 to 205; the temperature at which it’s held by a restaurant is 180 and it’s typically served at 165 to 180 degrees. Cox says that all major retailers adhere to these temperatures.
How do Customers Tolerate Hot Coffee?
He proposes this question: If coffee is served 60 degrees hotter than a steaming shower, how do customers tolerate it? They take tentative sips, add cream or milk, or wait until it cools. “Somebody spills it on himself and says it was too hot,” he said. “But it has to be that hot in order for the flavor to work.” Other factors besides temperature determine whether the spilled liquid will result in a burn, he said.
These factors include how long the hot liquid stays on the skin, and the sex, age, or physical circumstances of the spill victim. If the victim is able to remove their soaked clothing immediately, splash cold water on their skin and apply a topical cream, Cox says, they may not receive a lasting burn.
On the Road
If, however, they’re driving and trapped in a car seat belt, or on the highway, unable to pull over to the side of the road and disrobe, then the hot liquid can seep into their skin, causing a lasting burn. While in public, women, for example, tend to be less willing to disrobe than men, depending upon where the hot liquid may have spilled. That’s what happened in the original 1994 McDonald’s lawsuit.
Liebeck v. McDonald’s Restaurants
In that suit, then 79-year-old Stella Liebeck suffered burns after accidentally spilling hot McDonald’s coffee in her lap. Liebeck acknowledged that the spill was her fault, but what she took issue with was that the coffee was so ridiculously hot, near boiling point, that it caused third-degree burns on her legs and genitals. She claims that this nearly killed her, probably due to her age, and required her to have extensive surgery to treat.
Coffee is a Hazard
In the decade before Liebeck’s spill, McDonald’s had received upwards of 700 reports of people burning themselves. McDonald’s apparently admitted that its coffee was a hazard at such high temperatures, but it continued the practice, enforced by official McDonald’s policy, of heating up its coffee to near boiling point.
Liebeck Didn’t Want to Sue
Liebeck didn’t want to go to court, she just wanted McDonald’s to pay her medical expenses, estimated to be $20,000. McDonald’s only offered her $800, which led her to file a lawsuit in 1994. After hearing the evidence, the jury concluded that McDonald’s handling of its coffee was so irresponsible that Liebeck should get much more than $20,000. The jury believed she deserved nearly $2.9 million, partially to send the company a message.
Liebeck settled for a little less than $600,000 and McDonald’s began changing how it heats up its coffee. Many people widely mocked Liebeck’s case which made her the poster child for frivolous lawsuits, even though this was far from the case. Since this lawsuit, along with many others, some fast food chains have taken steps to reduce the likelihood of customers being burned.
Steps to Reduce Chances of Being Burned
Some McDonald’s locations have even added machines that help secure the lid. The coffee cup is put into the device, and a piston seals the lid tightly. Cox believes that the number one thing the fast food industry should do is buy “really good cups and lids.” However, the problem is cost. “When you’re buying cups and lids by the tens of millions, a penny’s difference adds up,” he said.
Purchasing Quality Cups and Lids
He even pointed to Australian lid-maker Smart Lid, which started selling a lid that changes color to reflect the temperature of what’s inside the cup. If what’s inside the cup is too hot to be safe, the lid turns red. But many companies are far away from purchasing better quality cups and lids, even if it would help ensure safety. In Fragoso’s case, it was never reported whether she was awarded any money for the burn.