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Hot Chocolate Case Analysis

Although the court’s holding that the dangers of hot liquids are obvious is consistent with almost all jurisdictions to have considered the issue, and comports with long-standing product liability law in Wisconsin, the court’s other holding is more problematic.

The court held that public policy considerations preclude liability on the part of the hospital for negligently failing to provide lids for the hot beverages it sold in Styrofoam cups.

The Wisconsin Supreme Court has previously declined to bar liability on public policy grounds, even though the injury genuinely was remote from the negligence, and allowing recovery would place an unreasonable burden on the public at large.

Here, in contrast, the injury is highly foreseeable, and the burden on the defendant to avoid highly foreseeable injury all but nonexistent.

In Alvarado v. Sersch, 2003 WI 55, 262 Wis.2d 74, 662 N.W.2d 350, for example, a landlord contracted with a janitorial service to clean an apartment after a tenant vacated. An employee of the service found a firecracker left by the former tenant, and was injured when she lit it, thinking it was a candle. Alvarado, 662 N.W.2d at 352.

The Wisconsin Supreme Court held that public policy did not preclude liability under any of the six factors from Gritzner v. Michael R., 2000 WI 68, par. 27, 235 Wis.2d 781, 611 N.W.2d 906: (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor’s culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; or (6) allowing recovery would enter a field that has no sensible or just stopping point.

In practice, by making a landlord liable to the very same cleaners that he hired to clean the unit (and remove articles like abandoned fireworks), the Alvarado decision absurdly places the burden on a landlord to search and clean every nick and cranny of a vacated rental unit himself.

In contrast, in the case at bar, injury is foreseeable, and the burden on defendants to avoid injury all but nonexistent (the court assumes the cost of lids is infinitesimal).

Nevertheless, the court first found that the injury is too remote from the negligence, because “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”).

Second, the court found that allowing recovery would have no sensible or just stopping point, listing a parade of hypothetical situations: “If Franciscan Skemp is liable for Zakary’s injuries, it is difficult to see why it would not be liable for injuries resulting from a whole series of events over which it has no control — someone injured when walking with a cup of the hot beverage that spills on the hand; someone injured when, while standing and holding a cup, another person bumps into them; a child injured when a parent gives the child a cup of the hot beverage to drink without cooling it down and the beverage spills on the child; someone injured when he or she places a cup of the hot beverage on an unstable surface or too near the edge of a table or knocks it over by accident.”

The court concluded, “We see no principled way to distinguish, in terms of Franciscan Skemp’s liability for failure to supply lids for the cups, between these situations and the one before us; and we are satisfied that it would not be reasonable to impose liability in any of these situations.”

However, there is nothing unreasonable about imposing liability in any of these situations, if the injury could have been avoided had the seller made lids available.

There are sound reasons for barring liability on public policy grounds, for injuries caused by hot coffee, if the absence or presence of a lid would make no difference.

People want coffee hot.

But imposing liability on the seller for not providing a lid has no such detrimental effect on society. Although almost anybody can drive a car or walk while drinking coffee out of a cup that has a lid, most people can’t do so without spilling on themselves if the cup has no lid.

Thus, there is nothing remote, or “extraordinary” about injury resulting from the absence of a lidless cup.

In addition, the court’s list of hypothetical situations — purportedly demonstrating that “allowing recovery would enter a field that has no sensible or just stopping point” — fails to prove its point.

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Dangers of hot liquids are open and obvious

Instead, the list of scenarios just serves to show easy it is for someone to get burned, if a vendor sells coffee to-go without lids.

Suppose a person were to allow his dog to run free in a highly populated neighborhood. The potential ways in which someone could get hurt is limitless: the dog could bite someone; someone could be injured as a result of another dog reacting to the dog being loose; a vehicle could swerv
e to avoid hitting the dog, and cause injury; etc.

However, that would not absolve the dog’s owner or keeper from liability. While it may be impossible to predict exactly how a loose dog is going to cause somebody harm, it’s highly foreseeable that it will happen.

The same is true with hot coffee. If someone sells hot coffee to-go in a cup with no lid, it is highly foreseeable that someone will get burned, even if it is impossible to predict the exact “string of events” that will cause it.

Thus, while the court’s decision fortunately won’t threaten the availability of piping hot coffee to go, it unnecessarily gives vendors a pass if they sell that piping hot coffee, without a lid, even if they know the buyer is not a sit-down customer.

– David Ziemer

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David Ziemer can be reached by email.

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