Nadel v. Burger King Corp.

• Decision Date: 21 May 1997
• Docket Number: No. C-960489,C-960489
• Citation: 119 Ohio App.3d 578,695 N.E.2d 1185
• Parties: NADEL et al., Appellants, v. BURGER KING CORPORATION et al., Appellees. *
• Court: Ohio Court of Appeals

Page 578

119 Ohio App.3d 578

695 N.E.2d 1185

NADEL et al., Appellants, v. BURGER KING CORPORATION et al., Appellees. ^*

No. C-960489.

Court of Appeals of Ohio First District, Hamilton County.

Decided May 21, 1997.

Edward J. Felson and Stephen R. Felson, Cincinnati, for appellants.

Jonathan P. Saxton, Cincinnati, for appellee Burger King Corporation.

Droder & Miller Co., L.P.A., A. Dennis Miller and Kevin J. Ryan, Cincinnati, for appellee Emil, Inc.

PAINTER, Judge.

I. Facts

On a morning in early December 1993, plaintiff-appellant Paul Nadel was driving his son, plaintiff-appellant Christopher, and two younger daughters, Ashley and Brittany, to school. ¹ Paul's mother, plaintiff-appellant Evelyn Nadel, was seated next to the passenger window. Christopher was seated in the front seat between Evelyn and Paul, with one foot on the transmission hump and one foot on the passenger side of the hump. Brittany and Ashley were in the back seat. On the way, they ordered breakfast from the drive-through window of a Burger King restaurant owned and operated by defendant-appellee Emil, Inc. ("Emil") under a franchise agreement with defendant-appellee Burger King Corporation ("BK"). Paul's order included several breakfast sandwiches and drinks and two cups of coffee. The cups of coffee were fitted with lids and served in a cardboard container designed to hold four cups, with the two cups placed on opposite diagonal corners. Emil's employee served the coffee through the car window to Paul, who passed it to Christopher, who handed it to Evelyn.

Evelyn testified that she tasted the coffee in the cup on the right side of the container, by raising the flap on its lid, and found it too hot to drink. She also testified that the lid of the coffee "jiggled off" and burned her on her right leg after she lifted the flap. After bending the flap of the lid so that it was closed, Evelyn returned the cup, covered by the lid, to the container. She then either started to place the container of coffees on the floor next to Christopher's foot or placed the container on the dashboard, or she had already placed the container on the floor next to Christopher's foot, when Paul drove away from the restaurant, making a left turn onto a street. At that point Christopher began screaming that his foot was burned. Christopher, Paul, and Evelyn discovered that one or both of the cups had tipped, and that hot coffee had spilled on Christopher's right foot. Neither the cups, the lids, nor the container are in the record. Christopher was treated for second-degree burns on his right foot.

In their complaint, the Nadels (Brenda Nadel is the mother of Christopher Nadel) raised several claims, including (1) breach of a warranty of merchantability and breach of a warranty of fitness for a particular purpose, both based on the allegation that the coffee was too hot to consume, (2) products liability for a defective product and a failure to warn of the dangers of handling liquid served as hot as appellees' coffee, and (3) negligence both for failing to instruct employees how to properly serve hot coffee and for failing to warn business invitees of the danger of handling coffee at the temperature Emil's coffee was served.

Emil moved for summary judgment, claiming that no genuine issue of material fact existed. In support of its claim, Emil cited the deposition of Paul, in which he testified that he knew that coffee is served hot, that he expected coffee to be served hot, that he knew Emil's coffee was served hot, that coffee would burn someone if it was spilled on him or her, and that whoever was handling hot coffee needed to be careful not to spill it. Evelyn testified that she knew the coffee that was spilled was hot, and that it had burned her. Emil's owner's affidavit averred that BK's operating manual required coffee to be served at approximately one hundred seventy-five degrees, that the coffee machine thermostats were set at that temperature, and that Emil was unaware of any problems resulting from coffee being served at that temperature.

BK also moved for summary judgment and pointed to evidence in the depositions that appellants knew that the coffee was hot and that coffee was purchased and served as a hot beverage. It also contended that under the circumstances, Evelyn's and Paul's actions were intervening, superseding causes precluding any actionable negligence on its part.

In opposition to the motions for summary judgment, the Nadels argued that Emil and BK knew or should have known that second-degree burns could occur as a result of coffee served at one hundred seventy-five degrees, because "the whole industry has long been aware of the danger of liquid this hot," and they cited several journal articles in their supporting memorandum. The Nadels also attached the affidavit of their attorney with Christopher's medical records affixed, which averred that the medical records were true copies of what was received through discovery.

The trial court granted both summary judgment motions, and the Nadels appealed. The trial court based its judgment on its conclusion that Christopher's injury resulting from spilled hot coffee was, as a matter of law, the result of intervening, superseding causes attributable to Paul and Evelyn. Appellants raise two assignments of error, contending, respectively, that the trial court improperly granted BK's summary judgment motion and Emil's summary judgment motion. We will address these assignments together, except in those instances where separate treatment is warranted for the various claims alleged by the Nadels.

II. Standard of Review for the Nadels' Claims

In order to prevail on a motion for summary judgment, a movant has the burden to demonstrate that no genuine issue of material fact remains to be litigated, that it is entitled to judgment as a matter of law, and that it appears from the evidence, when viewed most strongly in favor of the nonmoving party, that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 274. Where a moving party is seeking summary judgment on the basis that a nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party's claim by specifically pointing to some evidence of the type listed in Civ.R. 56 that affirmatively demonstrates that the nonmoving party has no evidence to support its claim. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 274. Once this burden is met, the nonmoving party must then produce evidence on the issues for which it bears the burden at trial, by setting forth specific facts by the means listed in Civ.R. 56(C), demonstrating the existence of a triable issue of fact. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801.

III. Intervening Cause

Here, the trial court granted summary judgment solely on the basis of its conclusion that Christopher's injury resulting from spilled hot coffee was, as a matter of law, the result of intervening, superseding causes attributable to Paul and Evelyn. Only a reasonably unforeseeable action may constitute an intervening, superseding cause. See, e.g., Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 617 N.E.2d 1068. A spilled drink at fast-food windows or shortly after pulling away from fast-food windows occurs with enough frequency that it cannot be said to be so unforeseeable that it constitutes an intervening, superseding cause as a matter of law. ² Therefore, the trial court erred when it held that the spill was an intervening, superseding cause on summary judgment. But we are permitted to affirm a correct judgment even though it was entered for the wrong reason, as only prejudicial error is reversible. See, e.g., Cook v. Cincinnati (1995), 103 Ohio App.3d 80, 658 N.E.2d 814, citing State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 637 N.E.2d 306. Therefore, we must examine each claim as to each party, and determine whether summary judgment was otherwise proper.

IV. Warranties of Merchantability and Fitness for a Particular Purpose

The Nadels' first claim alleges breaches of the warranty of merchantability and the warranty of fitness for a particular purpose. As no express contract is alleged between the parties, we assume that the asserted warranties are implied warranties set forth by the Ohio Uniform Commercial Code. See R.C. 1302.27 and 1302.28. ³ But the Ohio Products Liability Law has preempted the Nadels' warranty claims. R.C. 2307.72; 2307.73; Saylor v. Providence Hosp. (1996), 113 Ohio App.3d 1, 680 N.E.2d 193; Raitt, The Preemption and Economic Loss Provisions of the Ohio Product Liability Code (1991), 16 U.Dayton L.Rev. 583, 586-589; O'Reilly and Cody, Ohio Products Liability Manual (1992) 57, Section 5.05. R.C. 2307.72(A) states that "[a]ny recovery of compensatory damages based on a product liability claim" is subject to the Ohio Products Liability Law. R.C. 2307.73(A) states:

"A manufacturer is subject to liability for compensatory damages based on a product liability claim only if the claimant establishes, by a preponderance of the evidence, all of the following:

"(1) Subject to division (B) of this section, the product was defective in manufacture or construction as described in section 2307.74 of the Revised Code, was defective in design or formulation as described in section 2307.75 of the Revised Code, was defective due to inadequate warning or instruction as described in section 2307.76 of the Revised Code, or was defective because it did not conform to a representation made by the manufacturer as described in section 2307.77 of the Revised...