Woman Sues Dunkin' Donuts Over Hot Cider; A Look Behind Beverage Suit Tsunami
Feb. 25, 2014 -- A New Jersey woman, Jennifer Fragoso, is suing Dunkin' Donuts for burns she says were caused by hot apple cider that was too hot.
The suit, filed Feb. 11, follows national Burn Awareness Week and comes 20 years after McDonalds' famous "hot coffee lawsuit."
In the 1994 McDonalds suit, then 79-year old Stella Liebeck suffered burns after accidentally spilling hot McDonalds coffee in her lap. She sued the restaurant chain, and was awarded $2.9 million by a jury.
A judge reduced the award to $400,000, and Liebeck and the company later reached an out of court settlement for an undisclosed amount. Advocates of tort reform seized on the case as an example of frivolous litigation.
The counts in Fragoso's suit include product liability, negligence and breach of warranties. It seeks compensatory damages, punitive damages, attorney's fees, interest and costs.
Dunkin' Donuts robbery stopped by hot coffee
Amos Gern, the attorney representing Fragoso, told ABC News his client's suit is anything but frivolous. According to her complaint, she patronized a Dunkin' Donuts store in Belleville, N.J., in September 2012, buying hot apple cider. The cider's hotness, says the complaint, was excessive -- "beyond industry standards."
The cup's lid "was not properly secured," the complaint says. It dislodged, spilling the hot contents into her lap and causing what the suit says were second degree and third degree burns that left Fragoso "painfully and permanently injured."
Gern describes his client as a "24-year-old attractive young lady" who now, as a result of her burns, has scars on her inner thighs -- "full thickness scars that cannot heal and will never heal." For an idea of what they look like, he says, viewers can watch the 2011 documentary "Hot Coffee," which depicts Liebeck's burns.
He said Dunkin' Donuts has made no response yet to the suit, having just been served.
A spokeswoman for Dunkin' Brands, reached by ABC News, said she was unable to comment on the matter. She confirmed, however, that all Dunkin' Donuts' hot beverage cups display a warning that reads, "CAUTION: THIS BEVERAGE IS EXTREMELY HOT."
Does that warning on the cup absolve Dunkin' of some responsibility?
"That's a specious argument," Gern said. "No one suggests it didn't have a warning. We know it's hot."
The warning, he said, provides Dunkin' an opportunity to argue that the purchaser didn't handle the cup correctly.
"We know that's the approach they will want to take," he said.
The issue, however, he said, is the temperature of the cider, which was too high.
"You can't get third degree burns unless it's too hot for consumption," he said.
That's not necessarily true, says Dan Cox, author of the book "Handling Hot Coffee." Cox is an expert witness and legal consultant for hot beverage suits, testifying, he says, both for defendants and for plaintiffs though he is not involved in this case.
On any given day, he told ABC News, there are roughly 10 hot coffee, hot tea and hot chocolate suits in progress.
"The majority of these revolve around coffee burns or someone getting burned by a spilled hot beverage," he said.
