Dangers of hot liquids are open and obvious

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The dangers of hot liquids are obvious, so a vendor has no duty to warn of the dangers.

The Wisconsin Court of Appeals also held on Mar. 16 that public policy precludes liability for failure to provide lids for the cups in which the beverages were served.

In 2003, Zakary Kessel, then 15 months old, went to Franciscan Skemp Medical Center with his parents, Nathan Kessel and Christal Snider, and his sister, Kyarra, then three and one-half.

Christal was pregnant and thought she might be going into premature labor. After Christal was settled, Nathan went with Kyarra to the lounge area to get some hot chocolate for himself and the children.

Nathan mixed up hot chocolate in two Styro-foam cups. He intended to put ice in his children’s cup because he wanted the beverage to be lukewarm, not hot, for them. He looked around, but could not find lids for the cups. He carried the two cups back to the suite without taking a sip from either.

Back in the suite, Nathan put his cups in the center of the tray table that was next to the bed so that he could put some ice chips in the other cup for the children. While his back was turned, Zakary lifted up the cup, and sustained severe burns when he spilled the cocoa on his chest and neck area.

The Kessels brought suit, alleging that Stansfield Vending, Inc., the company that provided the hot water dispenser, was negligent because there was no warning on the dispenser, and alleging that Franciscan Skemp was negligent, both for failing to provide a warning, and for not providing lids for the cups.

On motion for summary judgment, Nathan admitted that he knew the water was too hot for the children, and that it was common knowledge. He also stated that, although he knew the water was hot, he did not realize it was hot enough to cause the injury to Zakary that it did.

The Kesslers also presented expert testimony that most adults do not realize that they can get second or third-degree burns from hot water.

Nevertheless, La Crosse County Circuit Court Judge Dale T. Pasell granted summary judgment for the defendants, finding no legal authority for a duty to provide a lid for hot beverages, and concluding that the danger of hot water was obvious, and thus, there was no duty to warn of its danger.

The Kessels appealed, but the court of appeals affirmed, in a decision by Judge Margaret J. Vergeront.

The court relied on Restatement (Second) of Torts 388 (1965), which provides: “One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier:

(a) knows or has reason to know that the chattel is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

Comment k to the section clarifies subsection (b) by stating that there is a duty to warn only if the supplier has “no reason to believe” that the user “will realize” the product’s dangerous condition.

The Kessels attempted to avoid application of Section 388 by arguing that, even though it is common knowledge that steaming water may cause injury if it comes into contact with skin, the supplier nevertheless has a duty to warn, if the ordinary user does not know how serious the injury can be.

However, the court noted that the Seventh Circuit, and every other court to have considered this argument, except one, have rejected it. McMahon v. Bunn-O-Matic Corp., 150 F.3d 651 (7th Cir. 1998).

Rejecting the Kessels’ argument, the court reasoned, “Because the user can see the dangerous condition by a casual inspection, the user is able to take the measures necessary to protect against the dangerous condition.”

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Accordingly, the court held that neither defendant owed a duty to warn, and were entitled to summary judgment on the failure to warn claims.

Turning to the claim based on the failure to provide lids for the cups, against Franciscan Skemp, the court determined that public policy considerations should preclude coverage, because the injury is too remote from the negligence, and because allowing recovery would have no sensible or just stopping point.

Noting that Nathan used the water dispenser in the lounge, carried the cups back into the private room, without spilling anything, and took what he thought were appropriate measures to protect the children while he turned to get ice, the court concluded, “the injury is the result of a chain of events occurring after Nathan carried the cups without spilling, and none of those subsequent events were under the control of Franciscan Skemp.”

Accordingly the court affirmed the grant of summary judgment on the claim alleging negligent failure to provide lids for the cups.

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David Ziemer can be reached by email.