In this products liability case, the plaintiff contends that she was badly burned by hot coffee purchased from the drive-through window of a fast food restaurant, when the coffee spilled on her after it had been handed to her by the driver of the vehicle. The defendant restaurant operator moves for summary judgment on the ground that the plaintiff cannot show a prima facie case of liability. I agree, and dismiss the case.

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   [Plaintiff, Katherine] Greene was a passenger in a car driven by her boyfriend, Chris Blevins, on the morning of December 31, 1994, when he purchased food and drink [coffees] from the drive-through window of the Hardee’s restaurant in Wise, Virginia, operated by the defendant. * * * He immediately handed the food and beverages to Greene. The food was on a plate, and the beverages were in cups. Greene placed the plate on her lap and held a cup in each hand. According to Greene, the Styrofoam coffee cup was comfortable to hold, and had a lid on the top, although she did not notice whether the lid was fully attached.

   Blevins drove out of the restaurant parking lot, and over a ‘‘bad dip’’ at the point at which the lot meets the road. When the front tires of the car went slowly across the dip, the coffee ‘‘splashed out’’ on Greene, burning her legs through her clothes. Blevins remembers Greene exclaiming, ‘‘the lid came off.’’ She did not look at the cup until the coffee burned her, and does not know whether the cup was tilted in one direction or another when the coffee spilled out.

   As soon as the coffee burned her, Greene threw the food and drink to the floor of the car, and in the process stepped on the coffee cup. When the cup was later retrieved from the floor of the car, the bottom of the cup was damaged, and the lid was at least partially off of the top of the cup.

   After Greene was burned by the coffee, Blevins drove her to the emergency room of a local hospital, where she was treated. She missed eleven days of work, and suffered permanent scarring to her thighs.

   Both Greene and Blevins testified that they had heard of the ‘‘McDonalds’ coffee case’’ prior to this incident and Greene testified that while she was not a coffee drinker, she had been aware that if coffee spilled on her, it would burn her. After the accident, Greene gave a recorded statement to a representative of the defendant in which she stated, ‘‘I know the lid wasn’t on there good. It came off too easy.’’

   [Court’s footnote: On August 17, 1994, a state court jury in Albuquerque, New Mexico, awarded 81-year old Stella Liebeck $160,000 in compensatory damages and $2.7 million in punitive damages, after she was burned by coffee purchased from a drive-through window at a McDonalds restaurant. The trial judge later reduced the punitive damages to $480,000, and the parties settled the case before an appeal. According to news reports, Mrs. Liebeck contended that for taste reasons McDonalds served coffee about 20 degrees hotter than other fast food restaurants, and in spite of numerous complaints, had made a conscious decision not to warn customers of the possibility of serious burns. The jury’s verdict received world-wide attention. See Andrea Gerlin, A Matter of Degree: How a Jury Decided That One Coffee Spill Is Worth $2.9 Million, Wall Street Journal.]

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   To prove a case of liability in Virginia, a plaintiff must show that a product had a defect which rendered it unreasonably dangerous for ordinary or foreseeable use. [Citation]. In order to meet this burden, a plaintiff must offer proof that the product violated a prevailing safety standard, whether the standard comes from business, government or reasonable consumer expectation. [Citation.]

   Here the plaintiff has offered no such proof. There is no evidence that either the heat of the coffee or the security of the coffee cup lid violated any applicable standard. Do other fast food restaurants serve coffee at a lower temperature, or with lids which will prevent spills even when passing over an obstruction in the road? Do customers expect cooler coffee, which may be less tasty, or cups which may be more secure, but harder to unfasten?

   In fact, the plaintiff testified that she knew, and therefore expected, that the coffee would be hot enough to burn her if it spilled. While she also expressed the opinion that the cup lid was too loose, that testimony does not substitute for evidence of a generally applicable standard or consumer expectation, since ‘‘[the plaintiff’s] subjective expectations are insufficient to establish what degree of protection * * * society expects from [the product].’’ [Citation.]

   The plaintiff argues that the mere fact that she was burned shows that the product was dangerously defective, either by being too hot or by having a lid which came off unexpectedly. But it is settled in Virginia that the happening of an accident is not sufficient proof of liability, even in products cases. [Citation.] This is not like the case of a foreign substance being found in a soft drink bottle, where a presumption of negligence arises. [Citation.]

   To be merchantable, a product need not be foolproof, or perfect. As one noted treatise has expressed, ‘‘[i]t is the lawyer’s challenging job to define the term ‘merchantability’ in [the] case in some objective way so that the court or jury can make a determination whether that standard has been breached.’’ [Citation.] 

In the present case, there has been no showing that a reasonable seller of coffee would not conclude that the beverage must be sold hot enough to be palatable to consumers, even though it is hot enough to burn other parts of the body. A reasonable seller might also conclude that patrons desire coffee lids which prevent spillage in ordinary handling, but are not tight enough to avert a spill under other circumstances, such as when driving over a bump. It was the plaintiff’s obligation to demonstrate that she had proof that the defendant breached a recognizable standard, and that such proof is sufficient to justify a verdict in her favor at trial. She has not done so, and accordingly the motion for summary judgment must be granted.