Discussion of hot coffee cases has cooled down considerably in past years, despite the recent film Hot Coffee.  Hopefully that will remain the case even after a recent Virginia complaint where a “drive-through” customer at a Virginia Beach Burger king suffered third degree burns after she was handed a cup of coffee inside of a bag.   These hot coffee cases tend to make bigger news than cases like medical malpractice, defective products, or serious car accidents where liability is more widely accepted by the public.  This is unfortunate because hot coffee cases are precisely where proponents of tort reform would like to wage the battle for public opinion.

Most would agree that it is, at least initially, a little counter-intuitive to find negligence in serving hot coffee, or to find hot coffee to be a defective product (but since when do we expect the law to be intuitive).  However, after considering that many of the chains require that coffee be kept at temperatures between 180º-190ºF and that 180ºF is hot enough to cause third degree burns in as little as 2 seconds, one could conclude that it may not be prudent or reasonably safe to serve “drive-through” customers coffee that could cause serious injury.

Reasonable people differ on this.  People argue variously:

  • that coffee, to retain its characteristic flavor and aroma, must be served at high temperatures (generally the argument is temperatures 150°F or above) at which third degree burns would still happen in a matter of seconds (no safer alternative);
  • that coffee must be given to the customer at temperatures far exceeding the desirable drinking temperature to allow customers to stir in sugar or creamer and to allow drive-through customers to pick up coffee and still have hot coffee when they get where they’re going (no safer alternative);
  • that people when they order hot coffee expect coffee capable of causing severe burns, not just burnt tongues (assumption of risk);
  • that all food above 140°F pose burn risks, and thus people when they buy food should check its temperature before consuming (assumption of risk);
  • that the stern warnings are enough (an adequate warning renders a defective product not defective).

Responses to these arguments, generally attack necessity and point out restaurants could do more to make the coffee safer, e.g. by using more secure cups, better insulated cups to keep coffee warm longer, or serving coffee at the minimum effective temperature instead of at temperatures as high as 190°F.

The fundamental theoretical question is to what extent individuals should bear the risk of being careful with the food they order and to what extent people in the business of selling hot food should protect their customers.

The legal bottom line is that if someone is seriously injured by hot coffee, and they didn’t do anything stupid (like try to pour hot coffee into a different container over their lap or try to open the cup while driving), they’ll likely be able to prove negligence or product liability in a lot of jurisdictions.