Dolores Burns v. Whitehurst Management Company dba Burger King, Burger King Corp.
Published: Aug. 30, 2001 | Result Date: Aug. 1, 2001 | Filing Date: Jan. 1, 1900 |Case number: H2061775 Bench Decision – $0
Facts
Plaintiff Dolores Burns, along with three minor children, drove to the Burger King drive-thru
located in Union City, which is owned by defendant Whitehurst Management Company dba
Burger King, where the only item she ordered was a large hot tea. The plaintiff was handed a
small paper bag containing the hot water, a lid on the cup, a tea bag and condiments. She
placed the bag on the center console of her vehicle and drove to a space in the parking lot to
prepare the tea. After placing her hand into the bag and grasping the cup to lift it out of the bag,
the plaintiff claimed that the entire contents of the cup spilt on her right thigh causing her first
and second degree burns requiring laser surgery.
Settlement Discussions
The plaintiff initially demanded $2 million in response to a request for statement of damages including a demand for punitive damages in the plaintiffÆs complaint. The claim for punitive damages was dropped at the time of trial. The plaintiffÆs settlement demands subsequently reduced to $375,000 at the first settlement conference then to $175,00 at a subsequent settlement conference and to below $75,000 just prior to trial. The defendants made a C.C.P. Section 998 offer to compromise for $1,001 which expired.
Result
PLEASE PROVIDE THE CITY OF LOCALE AND EXPERTISE OF EXPERTS: John Self ___________ city __________ expertise; Jerry Wachtel _________ city __________ expertise; Roy Grekin _________ city _________ expertise; Lawrence Petrakis __________ city ___________ expertise; Chester England __________ city ___________ expertise; Ted Lingle ________ city ___________ expertise
Other Information
Judge David Lee granted a nonsuit as to plaintiffÆs entire complaint for negligence against both Whitehurst Management Company dba Burger King as well as to Burger King Corp. on the grounds that the evidence of negligence presented by the plaintiff was not sufficient to infer negligence. The defendants have filed their respective memorandum of costs for expert fees and services along with related trial expenses. The defendants brought separate motions for nonsuit at the conclusion of the plaintiffÆs case in chief on liability grounds that there had been no evidence presented that either defendant had breached any duty of care owed to the plaintiff or that any industry standard had been violated with regard to either the temperature of the hot water for tea served to the plaintiff or the placement of the hot water contained with lid and condiments into a small paper for drive-thru customers. <E>The plaintiffÆs expert, John Self, testified that the temperature of the hot water was within the industry standard which calls for hot beverages to be served to customers of commercial restaurants at 175 degrees Fahrenheit +/- 10 degrees. He further testified that the use of a small paper bag to transfer the hot beverage container along with the lid and condiments was not violative of any industry standards. However, Dr. Self testified that the industry standards was too hot and the industry had been aware for more than 50 years that such temperature caused insubstantial burns. Additionally, he testified that serving hot beverages in a paper bag was unsafe. PlaintiffÆs expert Jerry Wachtel, testified that the use of a small paper bag to transfer the hot beverage, lid and condiments violated the plaintiffÆs expectancy of what she was receiving from the drive-thru window. DefendantÆs witness Chester England III of Burger King Corp. testified that the temperature of the hot water was within the industry standard for hot beverages and that Burger King Corp.Æs use of a small paper bag to transfer single serving hot beverages to drive-thru customers was implemented in order to reduce the risk of possible injury from spills by customers.</E>
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