Fourth Circuit Reinstates Exploding-Sandwich Lawsuit

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More sandwich news today: the Fourth Circuit has reinstated a lawsuit filed by a Florida carnival operator who claimed that his face and lips were burned by hot grease that exploded out of a McDonald's fried-chicken sandwich when he bit into it.  Frank Sutton alleged that his bite had pierced a "sub-dermal pocket of hot grease," with disastrous facial consequences.

Although, as described in the opinion, they don't seem to have been that disastrous.  Sutton claimed he was burned badly enough to cause blisters, but he didn't seek medical attention right away.  He claimed he did not realize until the next morning that "his burns were worse than he initially thought."  You know, I have limited experience with burns, but the ones I've had have always hurt right away.  I don't think that if I had second-degree burns on my lips or face I'd say, "well, I'll just sleep on it and see how they feel in the morning."  But Sutton did.  In fact, he did not seek any medical attention for four days, and then he was told that "the burns would heal naturally over the next month," which I assume means he did not get any actual treatment.  Turned out, though, that Sutton had a lingering lip disability:

Sutton's lips continued to bother him over the next few months.  Because sunlight and heat irritated his burns, Sutton’s lips consistently bothered him during his work of refurbishing and assembling outdoor amusement rides.  Sutton declined specific jobs if he knew the necessary work would aggravate his lips.

I've never tried to assemble an outdoor amusement ride using my lips, but that would probably be difficult enough even if they had not been previously aggravated.

Sutton eventually went to an ear, nose and throat specialist, seven months after the chicken explosion.  That doctor "treated Sutton with lip balm," and "instructed [him] to avoid excessive exposure to sunlight."  Thereafter, Sutton reportedly visited this doctor on a regular basis for "ongoing observation and treatment," I guess to get more lip balm, and maybe some shade.

The events described above resulted in a lawsuit "seeking $2,000,000 for lost wages, medical bills, and pain and suffering."  To be more specific, he was seeking lost carnival wages, medical bills for lip balm, and pain and suffering that he tolerated without even seeing a doctor for four days.  It's almost like he just made up a number that has little to do with his actual injuries.

McDonald's got itself out by summary judgment (though it's back in now too), but the case went to trial against the franchisee.  At trial, the district judge excluded an employee's alleged statement that "This is what happens to the sandwiches when they aren't drained completely," and held that Sutton had presented no other evidence of the applicable standard of care.  He granted judgment as a matter of law.  In reversing, the Fourth Circuit held that the statement should have been admitted and that, along with the testimony of Sutton's friends, this was enough to reveal "'what society demand[s] or expect[s] from' a fast-food, fried chicken sandwich."  (Society expects it shall have no hot grease?  Really?)

The dissenting judge said that there was no evidence the employee in question had anything to do with cooking, and that the testimony of the plaintiff's friends as to what they expected from a chicken sandwich should not have been enough.

Link: ABA Journal
Link: Sutton v. Roth, L.L.C. and McDonald's Corp., No. 08-1914 (4th Cir. Jan. 21, 2010).