Appeals Court Reinstates Lawsuit over Hot Sandwich

March 1, 2010

It’s been nearly five years since carnival operator Frank Sutton bit into a chicken sandwich at a McDonald’s at a truck stop in Virginia. The legal world is still dealing with the ramifications.

In February month, a federal appeals court in Richmond reinstated Sutton’s $2 million lawsuit against McDonald’s. In the lawsuit, Sutton claims his fried chicken sandwich exploded with scalding grease when he bit into it, burning his lips and face.

The case went to trial in 2008 in U.S. District Court in Alexandria, but before the jury could deliberate, U.S. District Judge Claude Hilton dismissed it.

“There’s just no evidence here of any kind of negligence. He ordered a hot piece of chicken and he got a hot piece of chicken,” Hilton said when he tossed the case. “It was hotter than he anticipated, and that was unfortunate.”

The case is reminiscent of an infamous 1994 case in which a New Mexico woman won nearly $3 million after spilling a cup of McDonald’s coffee on her lap and suffering third-degree burns. She eventually settled for a lesser amount.

Earlier this month, a McDonald’s drive-thru customer in Oregon sued for $7,500 after a coffee spill produced burns that required hospitalization.

In the Virginia case, Sutton, 62, 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, Virginia, 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.

In a telephone interview, Sutton said the scars are still visible on his lower lip and that he has to take precautions to keep it out of the sun to avoid further damage.

“It’s a permanent situation with me at this point,” Sutton said. “My opinion is it was nothing but negligence on the part of the McDonald’s people.”

The judge barred Sutton’s lawyer from presenting evidence that one of the employees saw the burns and said something to the effect of, “This is what happens to the sandwiches when they aren’t drained completely.” The appeals court, though, said the jury should have been allowed to hear it.

Sutton said he sued only after McDonald’s refused to pay his medical bills plus about $22,000 for a job he lost recovering from his injuries.

“I wasn’t interested in doing a lawsuit or anything like that. It’s not in my nature,” he said.

It is not clear how often McDonald’s faces such lawsuits. A spokeswoman for the Oak Brook, Illinois- based company declined to answer questions, instead issuing a written statement: “We take great pride in the food we serve our customers and set rigorous standards for food safety. We take these matters seriously. We investigate all allegations to gather the facts. We caution anyone from jumping to conclusions.”

In dismissing Sutton’s lawsuit, Hilton said Sutton bore some responsibility to make sure his sandwich would not scald him.

“How many times do people get burned by soup, sandwiches, or anything else? We’ve all had that happen to us,” Hilton said. “We all have some responsibility as a reasonable person to test the temperature of what we’re going to eat before we dive into it.”

But a divided appeals court, which ruled 2-1 in favor of reinstating Sutton’s suit, disagreed.

“It is not contributory negligence as a matter of law to merely bite into food served hot by a restaurant,” Judge Dennis Shedd wrote in his majority opinion.

The case has been sent back to Hilton; hearings have been scheduled for March and April. A trial date has not yet been set.

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