A Poster Child Case for the Contributory (or at least Comparative) Negligence Rule?:
Via Drudge: An individual allergic to cheese claims to have taken every step possible to ensure that his McDonald's quarter pounder didn't have cheese on it--except opening the bun and looking at the burger before biting into it.
It's McDonald's!
There is a chain of many people involved in order-taking and food preparation in these fast-food restaurants; I'm reminded of the old kid's game of "Telephone." Not to mention the fact that many of the employees - perhaps not the "best and brightest" - become accustomed to doing things in the way most people want them, and manage to "sleep through" any changes. For example, order your soft drink without ice and see how often you get what you ordered....
I suppose that for health reasons (and regulations), it's company policy that employees down the line from the food preparers are not in any way to open packages or directly handle food, but in such a special circumstance, with so many apparent requests for "no cheese," one could hope that the pickup window person would take the initiative to open the wrapper and check.... No? Oh, well, there goes the old business.
On the other hand, it seems negligent on the part of someone who is aware that he has a severe allergy, to not double-check when there is any opportunity for food to accidentally contain the allergen: "Trust, but Verify." I suspect that he will, next time!
And of course, there is the question of whether the family (or some members of it) decided to gamble the son's health against a huge settlement from McDonalds, a well-known deep pocket.
As I say, an interesting case. Expect some changes in how restaurants (particularly fast-food restaurants) operate after this one, and also in health regulations, very few of which are likely to make eating out either more pleasant or less expensive for most of us.
But if I were on the jury, I'd reject the defense. Bad enough to be eating something from McDonald's. Too much to ask that you take a peek at its innards before eating it. Who knows what you'll find in there? Something appetite-suppressing, is all we can know for sure.
Also interesting is that the damages being sought aren't just for the victim, but his family because they claim they risked their lives driving him to the hospital.
Is that enough to give them standing?
2. - I hate cheese, pickles, mustard and mayo, and I've found the best way to NOT get something on a cheap burger is to tell them what you DO want, not what you don't want (tho this method probably works better when so many things are left out). I think they hear 'cheese' (or whatever) and miss the 'no' part.
3. - Bogus lawsuit. I hope the guy loses big time.
Is not opening the bun even negligent? Isn't it typically obvious something is a cheeseburger from the outside,since cheese slices are different shapes from hamburgers? But I don't eat at McDonalds's so I can't say.
Hopefully this shakedown fails...
I expect coffee to be hot. I don't expect it to be significantly hotter than hot coffee normally is, and I couldn't normally check.
McDonald's screws up my orders a lot. Sometimes it's not practical to check until I get home, and from time to time the manager gives me an extra sandwich as compensation for the fact that I had to make a second round-trip (about 3 miles total) to get the order corrected, and that's fair.
We don't know how to check if the fryolator bath is really vegetarian, or if they've ever fried some meat in it, so my kosher-keeping friends don't assume that the fries aren't meat.
If I knew it was a matter of life-or-death (did Jackson? What was his prior reaction to cheese? Anaphalaxis implies it gets worse each time) I would open the bun, or ask somebody else to taste it first. McDonald's sets the thermostat on the coffee once, but as others have said, breaking the sandwich-making routine strains the available mental cycles.
Also with cheese, that's pretty easy to look for. Some people have allergies to compounds that are impossible to detect visually. I suspect these people don't eat out much.
Perhaps someday we'll be greeted by the little speaker saying, "Welcome to McDonalds. Can you please sign the release of liability form so we can take your order."
So since he had "clearly ordered two Quarter Pounders without cheese" perhaps the order taker didn't hear the "out" portion. When cheese is an "opt-in" item it is reasonable that the order taker heard "with" instead of "without".
Also who is allergic to "cheese" as a specific entity? He's allergic to some component of cheese, maybe the dairy, and that should preclude eating out pretty much anywhere, let alone a large chain such as McDonald's, especially if he's that strongly allergic.
I can almost see someone allergic to something ordering from a deep pocket restaurant and then adulterating the product to ensure a reaction.
Not almost, I can definitely see adulterating food for a chance at a deep pocket. Fingers in chili, mice and needles in cans or bottles of pop, other stuff...
What a sad world we live in.
I realize that in most states, the jury would get to decide these legal issues, but that is precisely what's wrong with the civil "justice" system in this country.
He has 10 million reasons to lie about this.
I have a lactose intolerant relative who always checks for cheese when ordering at a restaurant and it is not that uncommon for restaurants to mess up her order even when she bluntly tells the waiter to make sure there is no cheese on it because it will make her sick. Of course she always bothers to look at her food before consuming it and her response to cheese is mild discomfort, not the threat of anaphylactic shock and death. And the people I know with peanut allergies will not even enter restaurants they know use peanuts or peanut oil (no chick-fil-a for them).
Take two seconds to open up the damn burger if you are going to die from eating some cheese.
2.Drive thru speakers are notoriously bad. "Quarter Pounder (hiss) Cheese" is what the grill will hear. A fact known well enough to not be an unusual Hollywood gag.
3.Cash handlers are forbidden by health codes to handle (unwrapped) food products.
4. McDonalds is notorious for not giving food the way people order, to the point that other fast food companies have built their advertising on the fact. McDonalds has not made public claims to deny their competitors' claims, in effect advertising that they do not reliably give burgers "your way."
5. The plaintiffs emphasize that on multiple (at least 5) occasions they iterated "no cheese." This means that they had a strong (five times?) expectation that no matter how many times they requested no cheese, cheese would appear. If they had such a strong expectation, why then did they not check? A reasonable person demonstrating such strong suspicion would check.
6. As mentioned in a previous post, the first action was to call McDonalds, though the adverse reaction was supposedly immediate. Is not then the risk while rushing to the hospital due to the poor judgment of the phone call priority? It also leads one to question the immediacy and severity of the reaction.
7. The news article I read claimed the Emergency Room bill was $700. If true, how does that reflect on the seriousness of the allergic reaction? The last time I took anyone to the emergency room, it cost nearly $30,000, and they released him within an hour (it was a very early morning weekday) without any service performed except an MRI, which found nothing. It would cost most people $700 or more just to walk in the door, ask for an examination and walk out again.
8. As others have mentioned, there is always the possibility of cross contamination. At the high school kitchen in our town, cheese slices were banned from the kitchen entirely on cross contamination fears with one student in the school being allergic, and peanut butter before that even though no students in the school were allergic. And the school only hires older trained workers. Would a reasonable person, knowing they had a deathly allergy, trust a young non-skilled worker to give a fully clean sandwich? Wouldn't he be afraid they would just pull cheese off the burger?
This sounds either like a planned shakedown, or an example of negligence on the part of the young man and his mother who had full knowledge of the allergy.
Not if the theory of liability is that the product was defective, I would think. (I could also envision a suit based on a breach of the implied warranty of merchantibility, or even possibly on the implied warranty of fitness for a particular purpose.) For one thing, proof of fault would be unnecessary. Moreover, under Rest. (2d) Torts 402A, ordinary contributory negligence is not a defense at all in a products-liability action where the plaintiff merely failed to discover the defect or guard against its existence. I wouldn't think that the mere fact that "McDonald's screws up orders all the time" would impose a heightened duty of inspection on the plaintiff. Comparative negligence can still reduce liability in such a case, though, but I can't claim to know anything about West Virginia tort law, I don't know which doctrine they would apply.
Of course, it wouldn't be easy to show that the burger was actually defective, since that generally requires proving that it was dangerous beyond the expectation of the ordinary consumer. I don't know the answer here, but there are cases that have applied high standards for warnings where the group allergic to a specific thing is sufficiently large. I will point out that I don't think accidentally adding cheese here is any different from a case where the employee accidentally added peanuts to the burger, and the plaintiff turned out to be highly allergic to peanuts.
Anybody with a better knowledge of products liability is welcome to chime in!
<blockquote>
The fast-food giant has been sued before.
</blockquote>
Ya think? Shoot...do a docket search of the state courts in West Virginia alone, and you'll find at least a dozen active cases against McDonalds at any given time.
I don't order burgers at McDonald's, so I can't speak to that specific chain, however, I do frequently get Whoppers at Burger King. Notwithstanding the fact that a Whopper does NOT ordinarily come with cheese (it's 25 cents extra, IIRC), about 1 out of 5 times they sua sponte put cheese on the burger. Then the counterstaff act like I'm some sort of freak when I demand a replacement since they seem to think I should be grateful for having gotten free cheese.
...and, as a side note, the majority of people who order burgers order them with cheese on them. So a common error when making burgers is to accidentally slip a slice of cheese on them - or put the cheeseburger into a hamburger wrapper, which ends up in a non-cheeseburger order.
If you've lived your life for even a while with a deathly allergy to ANYTHING, you learn to make those tiny little inspections that keep you from, you know, dying.
What this has to do with preferring contributory negligence over comparative negligence, I don't know.
If I were on the jury, I would argue that McDonalds is 50% negligent and the consumer 50% negligent and cut the damages asked for in half.
Contributory negligence is a dumb idea, and we have wisely decided to nix that doctrine in most states. That one person has less than perfect behavior should not excuse the less than perfect behavior of others, where they all contributed to the problem. Instead, everyone should take responsibility for the consequences of their own less than perfect behavior. Comparative negligence accomplishes that -- everyone takes responsibility. Contributory negligence means that negligent people take no responsibility.
This case is definitely a good example of why we should prefer comparative negligence.
Even if many of you really are such assholes, which I don't doubt, it's remarkably tone deaf to not realize how this comes off. Maybe it's because so many Volokh readers are insulated from working-class Americans?
Good point. Many of the commenters here do seem to be harsh jerks with knee-jerk anti-consumer sentiments. But what do you expect, they are mostly Republicans.
I do not see how anyone could defend this as reasonable. If your customer asks you 5 times to prepare food without a certain ingredient, it is unreasonable to serve them food with that ingredient (absent a refusal to serve).
As far as elitism towards McDonalds, I think such sentiments are entirely justified. We would be better off if they just went out of business.
Mmm...that's good satire!
er..at least I hope it is.
A huge corporation like McDonalds who serves food day-in day-out should be aware that some customers make requests due to allergies. They should train their employees that getting orders right is very important for this reason.
And you know what, getting the order right for customers without alergies is not such a bad idea either.
Um, what's Per Se?
From the article: "Jeromy did his part to make it known he didn't want cheese on the hamburgers because he is allergic, Houston said. He told a worker through the ordering speaker and then two workers face-to-face at the pay and pick-up windows that he couldn't eat cheese, Houston said."
I resent that! I am the official ignorant knee-jerk Volokh commentor: accept no substitutes!
Under this definition, it's not clear what reasonable actions McDonald's, as a corporation, could take to avoid similar incidents. Similarly, it seems unreasonable for the consumer to expect McDonalds to have taken extraordinary measures to prevent misplaced cheese, especially given the obvious knowledge that McDonald's employs mostly low-skilled, often non-native-speaking workers. That's why I lean toward thinking the suit is without merit.
Well, here is a first lesson in torts. Negligence need not rise to the level of recklessness. All that is needed is carelessness.
Recklessness is often conceptualized as negligence-plus.
The question always is what would a reasonable person do under the circumstances. Would a reasonable McDonald's employee put cheese on the burger after they receive a specific request for no cheese? After 5 requests?
Answer: No. A reasonable person does not put cheese on a burger in that situation. Hence, it was negligent for the McDonald's employees in question to put cheese on the burger.
In this case, a reasonably prudent person, with a severe allergy to cheese, would double-check their burger, not consume it blindly in a dark room.
All this plaintiff is going to succeed in doing is getting a bunch of unlucky Mcdonalds employees fired from their jobs, when they aren't any worse then the million or so other people employed in fast food.
People look down on fast food restaurants for good reason. Fast food will make you fat and make you die of a heart attack. Yes, you can eat in an unhealthy way at other restaurants, but fast food joints tend to be especially bad and tend not to have very many healthy items on their menus compared to other restaurants.
I think these places have started putting some other stuff on their menu, like salad. But I have heard they do not do a particularly good job on these items.
The bias against fast food is justified.
Under the doctrine of respondent superior, employers are responsible for the negligence of their employees. As they should be. The employer should be ensuring that employees are adequately trained and supervised so that they do not harm customers or the general public.
First, you are right that the negligence of the consumer is relevant. But that does not excuse the negligence of McDonalds. What we should do is lower (not eliminate) the damages to account for the negligence of the consumer in this case.
Second, I do not know why you have such a disparaging view of fast food employees that you think that getting this wrong after being asked 5 times is normal.
Third, if these employees are fired it is not like it will be hard for them to find another low paying job. These sorts of jobs, which pay next to nothing, are not hard to come by. (And firing these employees is totally up to McDonalds. Firing these employees will not result in paying less damages in this case.)
As for when ordering. If you look at the menu, you will see quarter pounder with cheese, you won't see just quarter pounder. At least that has been what I've seen for at least the last decade.
That aside it isn't that hard to check for and I do it before leaving the drive thru window. It isn't hard to check. Cheese is very easy to spot and you can usually tell just by lifting the top of the bun. If there is cheese it's usually already melted and the top sticks.
Maybe McD's messed up. Wouldn't doubt it. But the person should have taken some initative and actually looked at the burger. Especially knowing McD's reputation and his allergies.
Some of you are demonstrating not only an impressive lack of knowledge of the real world, but of basic food safety techniques. Perhaps you can sue bacteria next for their unauthorized activity.
I have food allergies. They run in my family. Not one of us would ever have asumed that all society is somehow responsible for our own personal quirks.
*****************
Open and shut case on negligence? I think not.
****************
Nope, it doesn't work that way. And would you want it to, leaving the business owner to take the profits (maybe greater because of reduced insurance costs) and the employee to answer lawsuits like this one in their personal capacity? Unless the injury came about because the employee was doing something clearly other than what he/she was employed to do, maybe while off on a frolic or folly, the employer will be answerable for the employee's negligence.
****************
"anaphylaxis": potentially life threatening, but the term is used by some to describe acute histamine-mediated allergic reactions of lesser severity.
This kind of thing wouldn't happen at a Burger King, where I go once or twice a year for a Whopper and fries. (I generally feel a bit queasy an hour later and reproach myself for the lapse in judgment.)
We all make mistakes.. some more than others.. some take more care. But even those of us who take a lot of care will still make the occasional mistake. Unless there is a mechanism for checking and correcting mistakes (such as a system where a second person must always check that the burger has been correctly assembled before passing it on), there is a virtual guarantee that there will be the occasional mistake. So, does that mean we're all negligent?
I'd say that a mistake would have to be due to an unusual level of carelessness before it becomes "negligence". In this instance, I don't know what happened, but if highly trained doctors can make mistakes (and they do), I would say as a customer I would enter with the expectation that the McDonalds staff are going make a mistake, not that they aren't.
I don't like cheese, and in fact order my burgers plain, just with the meat and the bread. I learned a long time ago to check my burger before sitting down or driving away from the pick-up window. About once in every 10 orders or so, they'll have put cheese on it, because that's their habit. It ticks me off a bit, but I understand that you can't get much better help than that if they keep the price so low.
All the people who want to stick it to McDonald's really want to stick it to me and Waste, and all the other McDonald's customers out there. They'd rather increase the costs on the poor who eat at McDonald's than expect someone with a potentially deadly allergy to take 2 seconds to lift up the bun and LOOK for the cheese. Expecting McDonald's employees to get the order right, no matter how many times you tell them, would be gross negligence, in my view. No reasonable person should assume that their order will be exactly correct.
One of the reasons for imposing tort liability on businesses is to properly allocate costs and risks to those most able to reduce those risks. Where a car company could reduce a particular risk substantially by installing a 50 cent part, and decide not to, then they should bear the costs of that decision, since they are in the best position to avoid or reduce the risk; the customer could not easily or cheaply install that extra part.
But here, the cost of double-checking the burger is non-existent for the customer, and he, not the restaurant staff, is most aware of the risk. Thus, he and his family should bear that risk, not McDonald's.
"First, you are right that the negligence of the consumer is relevant. But that does not excuse the negligence of McDonalds. What we should do is lower (not eliminate) the damages to account for the negligence of the consumer in this case."
Therein lies the whole comparative vs. contributory negligence distinction. While I generally favor a comparative negligence regime, I think at a certain point, one party is so predominantly at fault the other party should be excused for minimal negligence.
And I do not at all think it is disparaging towards fast food employees to think that they make mistakes. Certainly I would make a ton of common mistakes like in this case every day.
Think of it like this - The average fast food worker serves hundreds of people each day. The average fast food consumer eats there at most once a day (being generous). Given this, it seems quite prudent for the consumer to double-check their food order. This is why most customers do in fact double-check there orders at these types of restuarants. To not do so, *especially* when one has a serious food allergy, seems grossly reckless (and more than a little bit fraudelant).
Nick
And that's negligence. The mere fact that the victim was an eggshell plaintiff makes no difference to the negligence analysis.
Actually, duty is probably the most difficult of the elements to establish. There has to be a foreseeable risk of injury to someone in the plaintiff's position. But isn't this foreseeable with cheese? Set anaphylaxis aside -- we don't know how common dairy allergy is (although I know at least two people who have it). It is enought that lactose intolerance is common (assuming McD's cheese contains lactose). The fact that negligently putting cheese on a burger could foreseeably give someone with lactose intolerance a stomachache is enough to establish that there is a duty not to do so -- the fact that Jeromy Jackson got way more than a stomachache just calls for application of the eggshell plaintiff rule.
1. Although, if the facts are as they have been presented, I think McDonald's would properly be held liable under current law, I express no judgment on which is less healthy for American society: modern tort law, or McDonald's hamburgers.
2. Some have argued above about which of the employees actually made the mistake: a burger-flipper who wrapped a cheeseburger in hamburger paper, a cashier who miscommunicated the order, or whatever else. I don't think it would matter. Assuming Jackson could prove that he did clearly order the burger without cheese, it's a pretty straightforward application of the res ipsa loquitur doctrine to say that, although we don't know exactly what happened behind the counter, Jackson could not have been handed the wrong burger without some kind of negligence on the part of at least one employee. That would suffice on a negligence theory of this case.
Certainly relative costs like these must factor into the legal analysis, no?
We would all like to think that we can order up exactly what we want at a restaurant and get it, but even when there are waiters that work for tips directly from the patron, mistakes are still all too common. Go ahead and try ordering Chinese food without MSG.
Would any reasonable person expect that special orders at a busy fast food restaurant would result in perfect compliance with the request when even more upscale restaurants are often unable to do so?
Even in a comparative negligence jurisdiction, the patron would seem to carry at least 51% and probably a lot more of the burden of ensuring that the order was correctly supplied before shoving it in his maw.
The $10M claim is absurd and not based on real damages. If anything, damages couldn't possibly be more than a couple thousand dollars, and if the jurisdiction allows awards with less than 50% or 51% liability then it still wouldn't pay for lawyers fees.
But it plays well in the press.
By the way, there's a reason why McDonalds makes a lot of money, and it's because a lot of people like the food, and find it very convenient. Whether people here like their food or not is entirely irrelevent to anything except their ability to sound holier-than-thou for not approving of them.
First, as someone noted above, the standard Quarter Pounder today comes with cheese. It is a special request to get it without cheese.
Second, has anyone actually worked--or even looked--at how McDonalds production line works?
From the grill station to the assembly/wrapping station, then on to a bin where items are put in a bag (or on a tray, if eating in). There is room for a mistake at each of several steps. Even if the person taking the order accurately heard and conveyed the 'no cheese' order; if the cook properly prepared a no-cheese burger; if the wrapper correctly packaged the item; that burger still went into a bin where it was grabbed and slammed into a bag. The person bagging the item didn't take the order, didn't hear the special request. He reached into a bin and grabbed something and tossed it into a bag. Erroneous? Sure. Negligent? No so much.
My food allergic, celiac's, and Crohn's friends all check their food before eating. The only other reasonable option is to hire a personal chef. From an informational perspective, it's much easier for the person with the restricted diet to check food for compliance than for the person who is unaware of the nature of the restrictions to check the food.
Imagine a customer with an allergy to cheese ordered a QuarterPounder without cheese, but was given a QuarterPounder with cheese that would almost certainly caused them grievous harm had they eaten it. Before they could eat what they were given, however, a thief, who improbably enough also had a cheese allergy, stole that QP with cheese, perhaps thinking it was one w/o cheese because of the wrapping. Thief eats the purloined cheeseburger (where's John Belushi?), goes into anaphylactic shock, and is rushed to the hospital by the police after finding him/her near death, struggling to breath. If the customer who ordered and paid for a QP w/o had eaten the QP that the McDonald's employee negligently prepared for them, and that customer had suffered the same harm that the hapless burger thief suffered, then said customer would have had a cause of action against McD because McD clearly owe the customer a duty of care, that is to act non-negligently where the customer was concerned. The thief, or thief's estate, could not sue McD's, though, because McD's owed no duty of care to the thief, who effectively came from nowhere, unexpectedly and unforeseeably, to steal the cheeseburger. (Probably the same result, that is no "duty," if rather than a thief, someone else with a cheese allergy thought the burger was an abandoned one, ate it, and was seriously injured as a result.) Though the cheeseburger that should have been a QP w/o that injured the thief was negligently prepared with cheese by the McD employee and the harm that might have been foreseen did in fact come about as a result of said negligence, no "duty" came about in "retrograde" fashion, because "duty" is an upfront or precursor matter, not something that arises after negligence. (So, in case of thief, "negligence" + "causation" + "injury," but no D liability, since no "duty.")
That's not right. "[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." Rest. (2d) Torts § 282. First, there doesn't have to be any relationship between the parties for there to exist duties between them. Second, "foreseeability" of the type of harm (not of the type of plaintiff) is relevant to duty, because it goes to what is an "unreasonable risk of harm." I mean "foreseeability" objectively, of course.
I know, and I thought my post reflected that by listing duty first (though reserving discussion for a later paragraph). I'm not sure if you're disagreeing here. I should point out that my view is that the duty is not to serve cheese to someone who asks for no cheese.
I agree completely. The claim for punitive damages and for the distress of the family members who had to rush Jackson to the hospital, however, will surely be dismissed.
I agree with your conclusion to this hypothetical, but I think the analysis is wrong. Imagine instead that McDonald's served a hamburger with shards of broken glass in it to the customer, and that again the thief steals and bites into it. I think McDonald's is liable on a negligence theory (and they're certainly liable in products liability). There's a duty not to serve glass-containing burgers to anyone. The fact that the victim was a thief makes him possibly an unforeseeable plaintiff (though probably not in my opinion), but this would go to proximate causation, not duty. As I have said, duty does not require a relationship between the parties.
With cheese, as I have posited above, the duty is not to serve cheese to someone who asks for no cheese. This is because many people want cheese and few will be injure by it, while no one wants glass and anyone would be injured by it. McDonald's owes this duty to everyone, including the thief. The problem here is, since the thief did not ask for no cheese, McDonald's didn't breach its duty to him. So the case turns on breach of duty, not duty. In short, in this case McDonald's had a duty to the customer and breached it, but there was no causation and no damages; and there was causation and damages as to the thief, but while McDonald's owed him a duty it did not breach it.
In fact, anybody who has ever been to the drive through (or seen Lethal Weapon 2) knows that one checks one's order because it is not uncommon for the minimum wage employees to make mistakes. The idea that someone who had a life threatening allergy wouldn't check is... not credible.
Actually, that just serves to make his story less credible. If you think they're going to get it right, you tell them once. Maybe you remind them once. But you don't do it five times, unless you think they can't be relied upon. And if you think that, there's no way you don't check.
Not exactly.
1) It isn't true that you have to ask; the exact opposite, in fact. They're trained to up-sell. If you ask for a QP, they'll say, "Do you want cheese with that?" And half the time you say No and you get Yes.
2) Even if the issue never arises, they may just pick up the wrong sandwich from under the heat lamps and put it in the bag without checking.
By this reasoning, it's unreasonable to expect measures taken to stop medical malpractice, if the company in the question hires janitors to do surgery because they're cheaper than physicians.
Saying "McDonalds won't hire workers who won't mess up orders, because it's too expensive" really isn't an answer.
Wow! You gotta be a guy who just finished his first year of law school. No discovery, just right to a decision, as in your view, the allegations in the complaint are dispositive. I wish it were that easy.
Let me give you the quick overview of how it works. Whether a duty exists is a question of law. Whether one violated that duty and whether that violation is a proximate cause of Plaintiff's injuries is almost always a question of fact for the fact-finder (i.e. jury or bench trial judge). And, the apportionment of negligence is a question for the fact-finder as well.
Time to get an externship at a law office. In your case, a civil defense firm would be the way to go.
After asking whom 5 times? If you pay any attention at all to what's going on on the other side of the counter, you'll notice that you are not speaking to the person who is actually preparing the food, and cannot speak directly to him. However many times you repeat something to the counter-person, only one message goes to the back end, in the form of the order on the screen. The way a fast food place is organized, the counter person just enters orders, collects the payment, and takes wrapped items out of the chute and puts them in the bag or tray; they have to assume that the labels on the wrapping are correct. They aren't allowed to unwrap the food, since they also handle money - nor would they have the time. It's that organization, specialization of tasks, and relentless pressure to finish each transaction in minimum time that allows fast food joints to deliver sanitary and sort-of acceptable quality prepared food so cheaply.
The kitchen of an expensive restaurant is equally off-limits to the customers, and I've seen fouled up orders at such places, too - although less often, because the workers are better paid (presumably for being better at their jobs) and maybe a little less rushed, and because the waitress can see what she delivers to you on the plate, if she can keep all the different orders straight so she recognizes a mistake.
I prefer my burgers with cheese and lettuce only. I simply abhor mustard, catsup, and pickles. At most fast food places, I will definitely check the burger before leaving, although a mistake won't make me sick. At McDonald's, I'll order chicken nuggets instead, because special orders often take a long time, and because IMO they're using those condiments to cover the taste of poor quality patties.
It's inconceivable to me that someone who knew that a single bite of cheese could kill him, and so aware of the possibility of errors that he repeated himself 5 times, would then bite into the burger without checking. The offer to pay his full medical bill was more than generous. If I was on the jury, I'd figure the customer was 75% negligent. If the law allowed any award under that circumstance, I'd award 25% of the direct expenses (the emergency room bill), and nothing else. Punitive damages? You've got to be joking - unless there's a way to assess them against the plaintiff's parents or lawyers.
This was not some 12 year old, chafing under the restrictions of a food allergy who might get carried away before he became mature enough to be more careful. This is a man in his 20s, who drove through McDonald's with his mother.
Had they never ordered at McDonald's before? Do they not know that the drive-through is the worst place to make a special order? Why in the world would a man in his 20s, along with his mother, actually risk his life in this manner? I just don't believe that. I think this is a scam.
If the P survives a motion for summary judgment by D, as I expect he will, and after the evidence is weighed it is concluded that there was no negligence because the harm done was too remote a possibility to have been oreseen, then perhaps you could say there had been no duty, since there can be no duty to act in such a way as to avoid unforeseeable harm. But that is a circular way to think about "duty," isn't it? And such a "look back" approach (was the harm foreseeable, and if so there was a duty to avoid it) wouldn't be very useful when the question is one of duty under a variety of special circumstances.
Suppose it is concluded that the D did act negligently in not exercising the expected "duty of care" (in a med mal case, failed to meet the "standard of care"), and might have caused the P to suffer harm, but that D's negligence was not the cause-in-fact of P's injury. (P presents to emergency room complaining of acute abdominal pain which he attributes to the cheeseburger negligently served him a little while earlier by D. It turns out, however, that P's abdominal pain had nothing whatsoever to do with what he consumed, instead it was caused by a kidney stone.) After it was determined there was not proximate causation, would you say D was found not liable because the court concluded that D had no "duty" to prevent the unrelated, and hence unforeseeable, renal colic? Would you say that even though the judge had denied SJM on the "duty" issue and it was not until the trier of fact got to causation that the P's case crumbled?
First, I did mean that duty was the most difficult element to establish in this case. I don't know about the statistically most difficult element to establish across all tort cases, but my offhand guess is that it would be actual causation.
Second, the evidence is weighed in deciding a summary judgment motion. In West Virginia -- no surprise -- "[t]he [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." W. Va. R. Civ. P. 56(c).
However, the existence of a legal duty, and the question of objective foreseeability of harm, are both legal questions, and could be resolved on a motion to dismiss well before the summary judgment stage.
Third, I think that a court would most likely respond to your hypothetical by assuming arguendo that McDonald's does have a duty not to serve hamburgers that cause renal colic, and would base a ruling on the lack of actual causation. I suppose it might happen that they would decide ab initio that there is no such duty and dismiss the case on a 12(b)(6), but this seems to me intuitively less likely.
Last, I think this thread is about done. Very interesting discussion though!
If you want to meld "duty" and "negligence" together into one, you can find support for such an approach in Palsgraf and the framing of them as effectively one with "duty of care," "care" being non-negligent conduct. But I don't see them as one, since "duty" may depend on the relationship of the parties, while "negligence" may be seen as "negligence" whether or not the other elements are all present to establish legal liability for D. (The "standard of care," that is what is non-negligent for a physician, may be different according to whether the doctor is a general practitioner or a board certified specialist. So what is "negligence" for one may not be "negligence" for another, but that is not about "foreseeability," nor is it a matter of greater or lesser or different "duty." Rather it is the "care" part of "duty of care.")
In summary, according to my understanding of "duty," I don't think it in doubt in the instant case. P may be unsuccessful, but it won't be because there was no "duty" on McDonald's part. More problematic for P when the question turns to the exact nature of that "duty," in particular the "care" part.