For recent developments in the ever-important jurisprudence of hot chicken sandwiches, last month the Fourth Circuit reversed the U.S. District Court in Alexandria for granting summary judgment to McDonald’s and a McDonald’s franchisee for claims involving negligently prepared fast food:
In the Virginia case, Sutton, 62, of Brooksville, Fla., who assembles and repairs carnival rides, testified that he was with family and friends when he stopped at a McDonald’s at the Daniel Boone Truck Stop in Duffield, Va., at about 1:30 a.m. He said he had to flag down employees who were loitering outside to prepare his order.
When he bit into the sandwich, “grease flew all over his mouth,” according to friend Bill Giffon.
Sutton testified that his lips were blistered and bleeding the next morning. His wife testified that the burns made it difficult, if not impossible, for her to kiss her husband. Several months after the incident, a doctor treated Sutton with lip balm.
For these injuries, the plaintiff is seeking $2 million for lost wages, medical bills, and pain and suffering.
As an initial matter, the Fourth Circuit reversed the district court’s grant of dismissal to McDonald’s Corporation. In McDonalds’ motion to dismiss, it argued that the corporation had no agency relationship with the franchisee restaurant where the incident with the allegedly negligent chicken occurred, and that therefore only the franchisee was a proper defendant in the matter. McDonald’s motion was supported only by an affidavit from its general counsel — and with no franchise agreement attached to the motion. For this oversight and for the judge’s over-eagerness in dismissing the law suit, McDonald’s will pay by continuing to remain party to the suit. The Fourth Circuit found that summary judgment was improper as the plaintiff had not been able to obtain all the discovery he was entitled to seek and had tried to acquire, namely the franchise agreement between McDonald’s and the Franchisee.
Secondly, the Fourth Circuit reversed the district court’s finding that, as a matter of law, Sutton had failed to present any evidence of a standard of care. Sutton argued on appeal that the sub-dermal pocket of grease was in itself sufficient evidence, or, alternatively, that the evidence he presented had in fact established an applicable standard of care.
After noting that Sutton was not, as a matter of law, contributorily negligent merely for biting into a hot sandwich, the court denied his argument that the grease itself provided a prima facie case.
Although “[u]nder Virginia law, a plaintiff need not present evidence of a standard of care in an unwholesome foods case.” However, in order to show that the case he is presenting is in fact an unwholesome foods case, the plaintiff must show “that the food product contained foreign matter.” The court denied Sutton’s argument on this ground, cautioning that “a sub-dermal pocket of hot grease” is not foreign to a chicken sandwich. According to the Fourth Circuit,
Though [Plaintiff] is right that hot grease is a foreign substance to chicken generally, hot grease is necessary and expected (even desired) for fried chicken.
The court ultimately sided with Sutton, however, in finding that the plaintiff had presented sufficient evidence of a standard of care in the form of a reasonable consumer expectation. The standard of care was shown through two separate lines of evidence.
First, immediately following the accident, a McDonald’s employee had informed Sutton that “[t]his is what happens to the sandwiches when they aren’t drained completely.” The court found this constituted evidence of “actual industry practice.” Second, the court found that Sutton’s companions’ reactions to his injury, and their obvious alarm at the prospect of a chicken sandwich exploding with hot grease, was evidence of “what reasonable purchasers considered defective.”
The consumers did not expect Sutton’s fried chicken sandwich to contain a hot pocket of grease, and the [Franchisee's] employee’s statement serves as strong corroboration for the reasonableness of this expectation. These facts reveal “what society demand[s] or expect[s] from” a fast-food, fried chicken sandwich. Under Virginia law, this constitutes evidence of a standard of care.
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I wonder, if the employee had not mentioned draining the sandwiches (or if no such procedure existed), would a standard of care (“chicken sandwiches shall not cause grievous personal injury”) still exist?