Court of Appeals of Ohio, First District, Hamilton County.
NADEL et al., Appellants, v. BURGER KING CORPORATION et al., Appellees.
-- May 21, 1997
Edward J. Felson and Stephen R. Felson, Cincinnati, for appellants. Jonathan P. Saxton, Cincinnati, for appellee Burger King Corporation. Droder & Miller Co., L.P.A., A. Dennis Miller and Kevin J. Ryan, Cincinnati, for appellee Emil, Inc.
On a morning in early December 1993, plaintiff-appellant Paul Nadel was driving his son, plaintiff-appellant Christopher, and two younger daughters, Ashley and Brittany, to school.1 Paul's mother, plaintiff-appellant Evelyn Nadel, was seated next to the passenger window. ...view middle of the document...
She then either started to place the container of coffees on the floor next to Christopher's foot or placed the container on the dashboard, or she had already placed the container on the floor next to Christopher's foot, when Paul drove away from the restaurant, making a left turn onto a street. At that point Christopher began screaming that his foot was burned. Christopher, Paul, and Evelyn discovered that one or both of the cups had tipped, and that hot coffee had spilled on Christopher's right foot. Neither the cups, the lids, nor the container are in the record. Christopher was treated for second-degree burns on his right foot.
In their complaint, the Nadels (Brenda Nadel is the mother of Christopher Nadel) raised several claims, including (1) breach of a warranty of merchantability and breach of a warranty of fitness for a particular purpose, both based on the allegation that the coffee was too hot to consume, (2) products liability for a defective product and a failure to warn of the dangers of handling liquid served as hot as appellees' coffee, and (3) negligence both for failing to instruct employees how to properly serve hot coffee and for failing to warn business invitees of the danger of handling coffee at the temperature Emil's coffee was served.
Emil moved for summary judgment, claiming that no genuine issue of material fact existed. In support of its claim, Emil cited the deposition of Paul, in which he testified that he knew that coffee is served hot, that he expected coffee to be served hot, that he knew Emil's coffee was served hot, that coffee would burn someone if it was spilled on him or her, and that whoever was handling hot coffee needed to be careful not to spill it. Evelyn testified that she knew the coffee that was spilled was hot, and that it had burned her. Emil's owner's affidavit averred that BK's operating manual required coffee to be served at approximately one hundred seventy-five degrees, that the coffee machine thermostats were set at that temperature, and that Emil was unaware of any problems resulting from coffee being served at that temperature.
BK also moved for summary judgment and pointed to evidence in the depositions that appellants knew that the coffee was hot and that coffee was purchased and served as a hot beverage. It also contended that under the circumstances, Evelyn's and Paul's actions were intervening, superseding causes precluding any actionable negligence on its part.
In opposition to the motions for summary judgment, the Nadels argued that Emil and BK knew or should have known that second-degree burns could occur as a result of coffee served at one hundred seventy-five degrees, because “the whole industry has long been aware of the danger of liquid this hot,” and they cited several journal articles in their supporting memorandum. The Nadels also attached the affidavit of their attorney with Christopher's medical records affixed, which averred that the medical records...