Burn Lawsuits, the Assumption of Risk and Comparative Negligence

“Caution – Hot!”

You may find this warning printed on anything from beverage cups to microwavable food.

By doing so, the manufacturer of the product is exercising its duty to warn consumers of the potential danger of burns that could result if the product is mishandled or consumed too quickly.

Of course, a printed warning isn’t applicable in all situations.

Recently, two lawsuit cases involving burns occurring at a restaurant made headlines. 

The Fort Worth, TX Burn Lawsuit


In the first case, a Fort Worth, TX woman is seeking damages of up to $1 million dollars after alleging she was served a stuffed mushroom at an Olive Garden restaurant that severely burned her throat and caused her to choke and later require medical attention.

The woman’s attorney says the restaurant was negligent because it didn’t warn its patrons that the mushrooms “were particularly hot or carried the risk to cause severe burns.” 

The San Diego, CA Burn Lawsuit

In the second case, a San Diego, CA family was recently awarded $6.5 million dollars in damages after an incident at the Omni La Costa Resort and Spa where their 9-month old baby was severely burned by a spilled pot of hot water that was set near her by the waiter at the restaurant.

The baby’s injuries required several surgeries and will continue to require surgeries in her future. Although unsuccessful, Omni’s defense pointed blame on the parents, alleging the family was not properly supervising their child.

Advice From Dennis VanDerGinst

Dennis VanDerGinst, CEO of VanDerGinst Law, P.C. weighs in on these cases and sheds light on liability.

While the law may differ in Texas and California, in Iowa, Illinois, and many other jurisdictions, the defense against these allegations is known as the “assumption of risk.” “If an adult orders hot food and shovels it into his or her mouth, he or she is assuming the risk,” explains VanDerGinst. In comparison, a baby cannot appreciate the danger so there isn’t a viable assumption of risk.”

Often times, the blame cannot be placed on one party alone. In these instances, Iowa and Illinois juries may consider comparative negligence as a viable defense theory. Comparative negligence acknowledges the possibility for both parties to be at fault, and it’s up to the jury to assign a degree of fault to each party. Perhaps a company should not have served its food or beverage at an unnecessarily high temperature. “This could expose them to some liability,” says VanDerGinst. Just how much liability will depend on the evidence? In Iowa and Illinois, if the jury finds the plaintiff to be more than 50% at fault, then the damages are reduced to zero. 

A final aspect a jury will take into consideration is the defendant’s history of burn incidents. Remember the infamous McDonald’s coffee lawsuit? While many thought it carried no weight, the plaintiff emerged victorious in part because McDonald’s had a history of serving unnecessarily hot coffee in a concerted effort to deter homeless people from loitering in the store for free refills. 

However it plays out, the Olive Garden lawsuit will indeed be a “hot” case to follow.

Contact A Burn Injury Lawyer

If you or a loved one have suffered a burn injury, contact VanDerGinst Law today. We have knowledgeable and experienced attorneys who can help guide you through the complexities of your case and help you obtain the financial compensation you deserve.

The consultation is free and there is never a fee unless we win. Call VanDerGinst Law at 800-797-5391.

The law is tough, being injured is tougher. We’ll make it easier for you.


“‘Death was imminent’: Olive Garden stuffed mushrooms severely burned woman, lawsuit claims,” WQAD, March 20, 2019

Family of infant severely burned by coffee at San Diego resort awarded $6M,” WQAD, March 22, 2019

The information contained on this website is presented by VanDerGinst Law P.C. It is not intended nor should it be construed as professional legal advice. The information is general in nature about the Firm, the scope of services we offer, and our community outreach, it is not legal advice. Please contact us by phone, email, mail, or via this website for inquiries. Contacting us does not create an attorney-client relationship. Please contact a personal injury attorney for a consultation regarding your situation. This website is not intended to solicit clients outside the State of Iowa and/or the State of Illinois.

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