Hot liquid liability: decision on Starbucks Corporation’s ...

December 2009

Product Liability

Hot liquid liability: decision on Starbucks Corporation's motion for summary judgment in Moltner v. Starbucks

By Margaret J. Elliot, Cristina Salamone, and George N. Tompkins III

In Moltner v. Starbucks, the plaintiff sued Starbucks after allegedly suffering injuries from spilling hot tea she purchased there. Claiming negligence on the part of Starbucks for the hot temperature of the tea, the store's practice of double cupping hot drinks, and a failure to warn, the plaintiff was ultimately unable to substantiate her claims. This case provides useful insight into the judge's reasoning in granting summary judgment to Starbucks and outlines a point-by-point discussion questioning the merits of the plaintiff's claims.

Facts:

The plaintiff purchased a cup of hot tea from Starbucks. The plaintiff was served tea in a double cup. Upon removing the lid, the plaintiff spilled the tea on her sneaker and suffered injuries requiring medical attention.

Procedural history:

The plaintiff's complaint alleged two causes of action: negligence and strict product liability. The plaintiff alleged that Starbucks was negligent for the following reasons: 1) the tea was defectively designed because the tea was too hot when served; 2) the double cup was defectively designed; 3) Starbucks negligently prepared the tea by using water too hot, by double cupping the tea, and by putting the lid on the inner cup; and 4) Starbucks failed to warn the plaintiff. Starbucks moved for summary judgment. Motion for summary judgment was granted by Judge Loretta Preska on October 23, 2009.

Standard:

In order to prevail on a motion for summary judgment, a party must prove there is no genuine issue as to any material fact that he or she is entitled to judgment as a matter of law.

Discussion:

In order for a defendant to be found negligent, the plaintiff must prove by a preponderance of the evidence that the defendant had a duty, that the defendant breached that duty, and that the breach was the proximate cause of the events that produced the injuries. In order for a plaintiff to prevail on a claim for strict product liability, a plaintiff must prove that a product is defective due to any of the following: 1) a manufacturing flaw; 2) a defective design; or 3) the failure to provide adequate warnings.

Claims as to the tea's temperature

Judge Preska first addressed the plaintiff's claim that Starbucks was negligent by serving tea that was too hot. In order to prevail under a theory of negligence, the plaintiff must prove Starbucks had a duty. Quoting Kronen v. Starbucks Corp., No 04 CV 3558, slip op. at 9 (S.D.N.Y. Aug. 17, 2005) (Jones, J.), Judge Preska indicated that "there is no duty to serve [a hot beverage] so that `no harm will come to a user no matter [how careless she may be and no matter] what the circumstances of its use.'" Judge Preska, citing Smith v. Bagels Unlimited, Inc., N.Y.L.J., June 18, 2002, at 20 (N.Y. Sup. Ct. 2002), further stated that "even though [a beverage is] hot enough to cause injury, that does not establish a defect or negligence in service."

Even if Starbucks had a duty of care, the plaintiff provided no evidence to prove that Starbucks breached that duty. Specifically, the plaintiff offered no evidence that the tea was heated beyond reasonably expected limits. The plaintiff

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provided no evidence because the plaintiff did not know the tea's temperature. The plaintiff could only estimate that the tea was 190 degrees Fahrenheit (as indicated within her Local Rule 56.1 statement). Not only did the plaintiff not have any knowledge of the tea's temperature, she failed to prove that her estimate of the tea's heat at 190 degrees Fahrenheit was a temperature greater than the industrial standard.

Claims based on the double cup

After discussing the plaintiff's claims based on the tea's temperature, Judge Preska discussed the claims based on the double cupping of the tea. Specifically, Judge Preska addressed whether or not the double cupping constituted a defective design or a breach of the seller's duty of care. Judge Preska looked to Ng v. Barnes and Noble, Inc., 764 N.Y.S.2d 183 (2003). The facts of Ng are virtually identical to this case. Ng stated that double cupping a liquid beverage neither constitutes a defective design, nor a breach of the seller's duty of care. Ng stated that a seller's use of a double cup does not expose a seller to liability for any burns a person might receive from spilling the beverage. Ng also stated that one must take care not to spill tea when removing the lid from a double cup. Ng further stated that double cupping is a method well known in the industry to avoid a cup of hot tea burning one's hand.

The plaintiff offered expert reports to distinguish her case from Ng. The plaintiff attempted to show that her beverage was defective and did not conform to the standard of care. The plaintiff's experts' reports were deemed inadmissible because they were unreliable under the standards set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). Judge Preska noted the importance of the court's gatekeeping function when dealing with the admissibility of expert reports. Quoting Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006), aff'd on other grounds, 552 U.S. 312 (2008), Judge Preska noted the importance of requiring explanation and a description of methodologies used in order for an expert to come to his or her conclusion.

The plaintiff offered three expert reports in order to prove that the double cup constituted a defective design. These experts concluded that the double cup was unreasonably dangerous for its intended use. The plaintiff offered reports of Kenneth Diller, Bernard S. Gerstman, and Robert John Anders.

Kenneth Diller offered his opinion as to what might occur when a lid is popped off a double cup. Judge Preska noted that Diller's reports were flawed because they lacked "intellectual rigor" and scientific accuracy. Diller did not use actual measurements, but relative terms such as "dramatically," "nearly," and "some."

Bernard S. Gerstman offered "mere conclusory assertions." For example, Gerstman indicated that when one attempts to remove a lid from a cup in hand, the liquid level will rise by 3/8ths of an inch. Gerstman offered this conclusion with no support to show how he came to his conclusion. Similar to Diller's report, Gerstman uses terms such as "extremely hot," "surprisingly flexible," and "tight enough." These abstract terms did not provide a reliable basis to arrive at his conclusion.

Robert J. Anders submitted a report in which he discussed the following: test results from removing a lid with three potential grips and a discussion of industrial-design factors. With respect to the test results, Anders concluded that none of the potential grips could have allowed the plaintiff to remove the lid safely. Anders conducted tests using his own fingers. Judge Preska noted the following flaws: Anders failed to distinguish his finger size from the plaintiff's finger size; Anders failed to measure the plaintiff's finger size, but assumed the plaintiff's finger size by comparing the plaintiff's height to an anthropometric guide; and Anders failed to establish the reliability of the anthropometric guide.

Judge Preska noted that because "Anders did not use actual measurements of plaintiff's fingers, he cannot say with any certainty how much clearance space plaintiff actually would have required." Anders also failed to consider "whether and to what extent plaintiff's arthritis may have [had an impact on] her ability to remove the lid from her cup . . . and whether his dexterity is similar to plaintiff's." With respect to Anders' discussion of industrial-design factors, Judge Preska found this to be inadmissible because Anders "has no expertise involving the design of hot-beverage cups or lids."

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After concluding that the expert reports were inadmissible, Judge Preska cited Stalker v. Goodyear Tire & Rubber Co., 874 N.Y.S.2d 632 (2009) and noted that even if they were admissible, the reports "would not raise a genuine issue of material fact regarding whether the double-cupped tea was `in a condition not reasonably contemplated by' plaintiff." The double-cupped tea was in a condition reasonably contemplated by the plaintiff for the following reasons: the plaintiff had been ordering hot tea for months, the plaintiff always had difficulty removing the lid, and the plaintiff admitted that this particular lid was more difficult than usual to remove. The plaintiff also attempted to offer the report of Guy DiMaria, a purported food industry expert. DiMaria's report intended to show that double cupping was not the standard in the industry. Judge Preska noted that DiMaria did not have sufficient expertise on the coffee and tea shop industry. DiMaria further did not give any indication that he supervised a similar coffee and tea shop around the time of the plaintiff's accident. DiMaria has no education in the service of hot beverages, he has not published any materials on the service of hot beverages, and he belongs to no professional organizations involving the service of hot beverages. For these reasons, Judge Preska determined that DiMaria was not qualified as an expert on the way coffee and tea shops serve hot beverages "at the time and locality involved." Huppe v. Twenty-First Century Restaurants, Inc., 497 N.Y.S.2d 306, 309 (1985). Claims based on Starbucks Corporation's failure to warn The plaintiff claimed that Starbucks had a duty to warn her of the tea's heat. Judge Preska indicated that there is no duty to warn a person of a fact, which that person is fully aware of, either through common knowledge or learning. Starbucks did not have a duty to warn the plaintiff of the following facts: hot tea can burn; liquid might spill when the lid of a cup, filled with liquid, is removed; and a purchased beverage may be full. The plaintiff had knowledge of the above facts because she had been a Starbucks customer for six months prior to getting burned. The plaintiff admitted that she had knowledge that tea can burn. She further admitted that she could feel the tea's heat while holding the cup. The plaintiff's experience from ordering tea also put her on notice that tea might spill when removing the lid.

This article is for general guidance only and does not contain definitive legal advice. Contact us at productliability@.

? 2009 Wilson Elser Moskowitz Edelman & Dicker LLP. All Rights Reserved.

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