Burn Lawsuits, the Assumption of Risk and Comparative Negligence
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.
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.”
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.
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.
If you or a loved one have been
injured, VanDerGinst Law would be honored to help. The consultation is free and
there is never a fee unless we win.If you suffered an injury
contact VanDerGinst Law, P.C. at 855-782-4882. 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
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