Nadel v. Burger King Corp.

While I agree with the majority opinion as set forth in Sections III, V, and VI, I respectfully dissent from Sections IV and VII. The majority correctly notes that the Nadels failed to produce evidence beyond the burn-producing spill to defeat Emil's and BK's motions for summary judgment regarding the Nadels' claim that the coffee was a defective product because its temperature was unreasonably and excessively hot. It holds nonetheless that the fact that the coffee caused second-degree burns is sufficient to create a genuine issue of material fact as to whether the coffee was a defective product and "whether the coffee was so exceedingly hot that serving it without a warning was unreasonable."

I disagree that the fact that Christopher suffered second-degree burns is sufficient to establish the existence of a disputed issue of material fact as to whether the coffee was a defective product under either prong of the defective-design section of Ohio's Products Liability Act. R.C. 2307.75(a)(1) and (2). The fact that a product may cause injury does not mean that the product is defective. Accord Cincinnati Ins. Co. v.Volkswagen of Am. (1985), 29 Ohio App. 3d 58, 29 OBR 68,502 N.E.2d 651. A manufacturer need not make its product accident-proof or foolproof. It is "not an insurer that [its] product is, from a design viewpoint, incapable of producing injury." Gossett v. Chrysler Corp. (C.A.6, 1966), 9 Ohio Misc. 1,5, 36 O.O.2d 207, 210, 359 F.2d 84, 87. The majority opinion, by allowing the Nadels to meet their Civ.R. 56 burden by practically going no further than the mere allegation of wrongdoing creates an absolute liability on the manufacturer based on the fact that an injury occurs when its product is used. To accept the majority opinion would mean that one "would truly have reached the scenario envisioned by Justice Holmes in his dissent in Cremeans [v. Internatl. Harvester Co. (1983),6 Ohio St. 3d 232, 238, 6 OBR 302, 307, 452 N.E.2d 1281, 1286] where `* * * summary judgment for a defendant would never be possible since the plaintiff need only assert that a given product is defectively designed and that he was injured by it.'"King v. K.R. Wilson Co. (1983), 8 Ohio St. 3d 9, 11, 8 OBR 79, 80, 455 N.E.2d 1282, 1283 (Holmes, J., dissenting).

I also conclude that summary judgment was properly entered against the Nadels on their failure-to-warn claim, because the fact that coffee is hot and can cause burns is open and obvious. The evidence demonstrates that Evelyn and Paul knew the coffee was hot and that they had ordered it hot. In fact, coffee is usually served hot and allowed to cool before consumption. R.C.2307.76(B) provides that "[a] product is not defective due to lack of warning" as a result of the failure to warn about "an open and obvious risk or a risk that is a matter of common knowledge."

The majority opinion focuses on the severity of the injury as the crux of whether a warning is required. I believe that "risk" is not to be so liberally construed. It is not the severity of a specific injury that constitutes the open and obvious risk; the open and obvious risk is the "danger or potentiality for danger" that a product possesses, regardless of the innumerable degrees of severity of injury which might occur. See Restatement of the Law 2d, Torts (1965) 353, Section 402A, Comment j.

"A manufacturer has no duty to warn of an obvious danger. Knives are sharp, bowling balls are heavy, bullets cause puncture wounds in flesh. The law has long recognized that obvious dangers are an excluded class. [Footnote deleted.] As the colorful Seventh Circuit Judge Richard Posner once wrote in an Indiana federal case, if you `go to the zoo and put your hand through the lion's cage, and the lion bites your hand off, * * * you do not have an action against the zoo.'" O'Reilly and Cody, Ohio Products Liability Manual (1992), Section 10.13, 147.

A knife may cause various degrees of injury ranging from the mere slicing of skin to the severing of a limb; however, the fact that the injury is a severing of a limb does not make the risk of causing some type of cutting any less obvious. Likewise coffee is served hot. The fact that its heat may cause a slight burn in some instances, or second-degree burns when, like in this case, the coffee is spilled and compressed between a child's sock and his skin for a period of time, does not make less obvious the risk that hot coffee purchased for consumption will burn upon contact with skin.⁷ I would conclude that hot coffee is an open and obvious risk which requires no warning. Cf. Koepke v. Crosman Arms Co. (1989), 65 Ohio App. 3d 1,582 N.E.2d 1000 (no warning required regarding the dangers of firing a loaded BB gun toward a person); Gawloski v. Miller Brewing Co. (1994), 96 Ohio App. 3d 160, 644 N.E.2d 731 (dangers of prolonged and excessive use of alcohol is a danger within the body of common knowledge); Hanlon v. Lane (1994), 98 Ohio App. 3d 148,648 N.E.2d 26 (no warning required of the danger of carbon monoxide where its lethality is a matter of common knowledge);Taylor v. Yale Towne Mfg. Co. (1987), 36 Ohio App. 3d 62,520 N.E.2d 1375 (no claim for failure to warn where truck's propensity to spark was fairly obvious).

Because of my conclusion above, I also would overrule the Nadels' claims for punitive damages.

⁷ Under the majority's analysis, a question is thus raised as to what warning would be adequate. Obviously, if the danger is the severity of possible injury and not the fact that the coffee is hot, a warning of "Caution! Hot Coffee!" is arguably inadequate. Would a manufacturer have to determine the most severe injury which could occur under all circumstances and provide a warning of that possibility, so that if the instant case constituted that situation a warning to be sufficient would need to advise "Warning! Hot Coffee Can Cause Second-Degree Burns If Spilled In Sock!"?