Huppe v. Twenty-First Century Restaurants of America, Inc.

• Decision Date: 16 January 1985
• Docket Number: TWENTY-FIRST
• Citation: 497 N.Y.S.2d 306,130 Misc.2d 736
• Parties: Sara HUPPE and Geoffrey M. Huppe, Plaintiffs, v.CENTURY RESTAURANTS OF AMERICA, INC., Defendant.
• Court: New York Supreme Court

Page 306

497 N.Y.S.2d 306

130 Misc.2d 736

Sara HUPPE and Geoffrey M. Huppe, Plaintiffs, v. TWENTY-FIRST CENTURY RESTAURANTS OF AMERICA, INC., Defendant.

Supreme Court, Broome County.

Jan. 16, 1985.

Alexander W. Luckanick, Binghamton, for plaintiffs.

Coughlin & Gerhart, Binghamton, (Frank W. Miller, of counsel), for defendant.

SMYK, Justice.

Late in the afternoon of October 23, 1981, plaintiffs, husband and wife, entered the McDonald's restaurant owned and operated by defendant at 1600 Bruckner Boulevard in the Bronx and purchased two large cups of coffee and a hamburger. An employee in the restaurant filled two cardboard cups with coffee from a carafe which plaintiffs had seen the employee fill from a larger metal urn. The cups were covered with plastic lids and placed in a paper bag. Mrs. Huppe carried the bag from the restaurant to the plaintiffs' car in the restaurant's parking area. In the car, Mrs. Huppe remov the lid from at least one of the cups of coffee in order to add cream and sugar. While she was holding both cups in her hands, her husband began backing the car out of its parking space and the car jerked. Mrs. Huppe also jerked and the coffee from both cups spilled onto the upper part of her body. In an effort to assist his wife, Mr. Huppe returned to the restaurant, told an employee that his wife had been burned, and asked for some water. He received a small cup of water, said that it was not enough, and immediately left the restaurant. Shortly thereafter, with the help of a passerby, Mr. Huppe drove his wife to a local hospital where she was treated for first and second degree burns to her chest, neck, face and shoulders.

In November of 1982, plaintiffs commenced this action to recover for the injuries sustained by Mrs. Huppe alleging negligence and breach of warranty on the part of defendant in serving coffee at an unreasonably high temperature. Defendant served an answer denying most of the allegations in the complaint in January of 1983 and conducted an examination before trial of plaintiffs in December of 1983. Apparently plaintiffs have taken no further steps to prosecute their claims, and defendant now moves for summary judgment against plaintiffs on the grounds that the facts are insufficient to support the causes of action alleged in the complaint. In opposition to this motion, plaintiffs contend that there are triable issues of fact regarding whether the coffee was defective by virtue of its temperature, whether the cups were defective, whether defendant had a duty to warn Mrs. Huppe of the temperature of the coffee, and whether defendant fulfilled its alleged duty to assist Mrs. Huppe after the coffee spilled.

In examining the papers submitted by the parties, the court finds that the only evidentiary facts which could support plaintiffs' causes of action are contained in the depositions of plaintiffs and the affidavit of Desi Morgan, the manager of the restaurant. The affidavit of plaintiffs' attorney is of no evidentiary value because he has no personal knowledge of the underlying facts and circumstances. The affidavit of Peter Dikeos, submitted by plaintiffs after argument of this motion, is clearly neither the statement of one with personal knowledge of any relevant facts nor the opinion of a qualified expert as to the "proper" or customary serving temperature of coffee, or as to quality of the cup in which the coffee was served. Mr. Dikeos merely reports how he serves coffee to his customers in the Village of Johnson City. Therefore, his affidavit presents no relevant evidentiary facts.

Also, the affirmation of plaintiffs' attorney in a letter to the court dated December 4, 1984 is so lacking in probative value that the court has wholly disregarded its content in deciding this motion.

Since plaintiffs phrase their claims in terms of negligence, products liability, and breach of warranty, it is clear that on this motion for summary judgment plaintiffs must come forth with evidence that the coffee, or its containers, were defective or negligently served to plaintiffs by defendants, and that the defect or the negligence was a proximate cause of Mrs. Huppe's injuries. After reviewing the evidence presented, the court concludes that there are no triable issues of fact as to these claims.

The only evidence of the temperature of the coffee served to plaintiffs is defendant's admission that its general practice was to brew coffee at a temperature between 195 degrees Fahrenheit and 205 degrees Fahrenheit and to hold it before serving at a temperature between 180 degrees Fahrenheit and 190 degrees Fahrenheit. However, the fact that the coffee was hot enough to cause injury if not properly handled does not mean that it was defective or negligently served. Where, as here, a product by its very nature has a dangerous attribute, liability is imposed only when the product has an attribute not reasonably contemplated by the purchaser or is unreasonably dangerous...