McMahon v. Bunn-O-Matic Corp.
United
States Court of Appeals for the Seventh Circuit
150
F.3d 651 (7th
Circuit 1998)
The McMahons filed suit in state court. Bunn-OMatic removed
it to federal court under 28 U.S.C. ' 1441(a), asserting
that the district court would have had original jurisdiction. Removal
was improper, because only Bunn among the three defendants
signed the notice. But
no one paid any attention to the requirement that all defendants
(or none) join a notice of removal, and any defect in the
removal process other than the lack of subject-matter jurisdiction
must be raised within 30 days or is forfeited. 28
U.S.C. ' 1447(c). As
it happens, no one paid attention to subject-matter jurisdiction
[based on diversity of citizenship] either. Bunn's
notice of removal states that it is a Delaware corporation
with its principal place of business in Illinois and that
the McMahons are residents of Indiana. An
allegation of residence is inadequate. Of what state are the McMahons
citizens? And
what about the other two defendants? . . . The
notice of removal did not mention their citizenships, yet
no one gave jurisdiction a second thought. James River Paper Company and Wincup
Holdings, L.P., did not bother to put the details of their
own citizenships into the record, and the district court
neither assured itself that jurisdiction exists nor flagged
the issue for the parties' attention. . . . When
the subject arose at oral argument, both sides reacted
as if the thought that all parties' citizenship matters
was a revelation.
After a false start, Bunn has filed a proposed amendment
to the notice of removal to put the jurisdictional details
in the record. See
28 U.S.C. ' 1653. . . . The
motion to amend the pleadings under ' 1653 to show the
existence of jurisdiction is accordingly granted, and we
move on to the merits B with a reminder to the district
court and future litigants that it is best to attend to
this issue at the outset, before unpleasant discoveries
about jurisdictional facts require the parties and the
judge to bemoan the waste of the time and money invested
in the litigation.
The McMahons have two theories of liability under Indiana
law (which the parties agree supplies the rule of decision):
(i) that Bunn failed to warn consumers about the severity
of burns that hot coffee can produce; and (ii) that any
coffee served at more than 140 degrees F is unfit for human
consumption (and therefore a defective product) because
of its power to cause burns more severe than consumers
expect, aggravated by its potential to damage the cup and
thus increase the probability of spills. After
the parties agreed to accept the decision of a magistrate
judge, the court entered summary judgment for the defendants. 1997 U.S. Dist. LEXIS 22318. The
magistrate judge observed that both McMahons conceded during
their depositions that "hotness" was one of the elements
they value in coffee and that they sought out hot coffee,
knew it could burn, and took precautions as a result. These
concessions B which any adult coffee drinker is bound to
make B foreclose the possibility of recovery, the opinion
concluded. Other, similar suits have come
to the same summary end, see Barnett v. Leiserv, Inc.,
968 F. Supp. 690 (N.D. Ga.), affirmed without opinion,
137 F.3d 1356 (11th Cir. 1997); Greene v. Boddie-Noell
Enterprises, Inc., 966 F. Supp. 416 (W.D. Va. 1997); Lamkin
v. Braniff Airlines, Inc., 853 F. Supp. 30 (D. Mass. 1994);
Oubre v. E-Z Serve Corp., 1998 La. App. LEXIS 1392 (5th
Cir. 1998); Huppe v. Twenty-First Century Restaurants of
America, Inc., 130 Misc. 2d 736, 497 N.Y.S.2d 306 (Sup.
Ct. 1985), although one published opinion has held that
a claim of this sort is triable, see Nadel v. Burger King
Corp., 1997 Ohio App. LEXIS 2144 (1st Dist.), review denied,
80 Ohio St. 3d 1415, 684 N.E.2d 706 (1997), and a suit
in New Mexico (Liebeck v. McDonald's Restaurants, P.T.S.,
Inc. [1994]) produced a widely publicized jury verdict
of some $3 million but not a published opinion (the case
was settled before appeal).
Before taking up the McMahons' objections to the district
court's conclusions, we offer a prefatory note about the
parties' litigation strategy. Plaintiffs
proceed on the assumption that Bunn-O-Matic made and sold
coffee, as opposed to a tool that retailers use to make
coffee. Bunn's
failure to challenge this perspective is puzzling. Why should a tool supplier be liable
in tort for injury caused by a product made from that tool? If a restaurant fails to cook food
properly and a guest comes down with food poisoning, is
the oven's manufacturer liable? .
. . Consider
the plaintiffs' claim that they should have received warnings. How is a manufacturer of coffee-making
machines to deliver them? Many consumers of coffee never
see the machine that made it B someone brings coffee to
the customer in a cup or pot (as in Lamkin); a fast food
outlet may deliver a sealed container to a take-out window
(as in Greene and Nadel) or place the coffee maker so far
behind the counter that customers cannot read whatever
warnings it bears. And
coffee makers are small; where would a warning more elaborate
than "Hot!" go? If
warnings are in order, then, they belong on a restaurant's
menu, or on the cups containing take-out coffee. Consider,
too, plaintiffs' contention that hot coffee is extra dangerous
to take-out customers who are more likely to spill it,
or because it destabilizes Styrofoam cups. What has this to do with the claim
that a machine is defective, as opposed to a claim that
the vendor used the wrong machine for the job? Restaurants
that serve coffee in china cups would not worry about the
effect of a liquid's temperature on foam, or about the
jostling of a moving car. They
could serve at whatever temperatures their clientele preferred. Thus it cannot be that producing
hot liquids makes a machine defective any more than a knife
is defective because its blade is sharp; the theory has
to be that vendors with a more mobile trade and weaker
cups must use machines that brew and hold coffee at lower
temperatures (or must use cups capable of holding liquids
at the temperatures they have chosen to serve). Perhaps Bunn advertised the machine
used by the Mobil station as suitable to businesses serving
carry-out coffee in flimsy cups; that would be a better
basis of liability, but it is not one to which plaintiffs
advert. Still, both sides in this case
treat Bunn and the retailer as identical. We proceed on that basis, while
doubting that it is sound.
Let us tackle the contention that Bunn should have warned
the McMahons about the dangers of hot coffee. What would this warning have entailed? A
statement that coffee is served hot? That
it can cause burns? They
already knew these things and did not need to be reminded
(as both conceded in their depositions). See
American Law Institute, Restatement of Torts: Products
Liability ' 2 comment j (Proposed Final Draft 1997). That
this coffee was unusually hot and therefore capable of
causing severe burns? Warning consumers about a surprising
feature that is potentially dangerous yet hard to observe
could be useful, but the record lacks any evidence that
179 degrees F is unusually hot for coffee. Neither
side submitted evidence about the range of temperatures
used by commercial coffee makers, or even about the range
of temperatures for Bunn's line of products. The
McMahons essentially ask us to take judicial notice that
179 degrees is abnormal, but this is not the sort of incontestable
fact for which proof is unnecessary. In
Barnett and Oubre the courts reported that the industry
standard serving temperature is between 175 degrees and
185 degrees F, and if this is so then the McMahons' coffee
held no surprises. What
is more, most consumers prepare and consume hotter beverages
at home. Angelina McMahon is a tea drinker,
and tea is prepared by pouring boiling water over tea leaves. Until 20 years ago most home coffee
was made in percolators, where the water boiled during
the brewing cycle and took some time to cool below 180
degrees. Apparently the McMahons believe
that home drip brewing machines now in common use are much
cooler, but the record does not support this, and a little
digging on our own part turned up ANSI/AHAM CM-1-1986,
which the American National Standards Institute adopted
for home coffee makers. Standard
5.2.1 provides:
On
completion of the brewing cycle and within a 2 minute interval,
the beverage temperature in the dispensing vessel of the
coffee maker while stirring should be between the limits
of 170 degrees F and 205 degrees F (77 degrees C and 96
degrees C).
The
upper finished brew temperature limit assures that the
coffee does not reach the boiling point which can affect
the taste and aroma. The
lower temperature limit assures generally acceptable drinking
temperature when pouring into a cold cup, adding cream,
sugar and spoon.
Standard 5.2.3.2 adds, for
any coffee maker that "incorporates means to maintain beverage
temperature on completion of a brewing cycle":
With
the appliance containing maximum rated cup capacity of
liquid, basket and pump removed (if present), allow to
stand while still energized in an ambient temperature of
73 9 degrees F (23 5 degrees C) for a period of 1 hour
at which time the beverage temperature in the appliance
should not be lower than 170 degrees F (76.7 degrees C).
Thus home coffee makers that
claim to follow the standard (a voluntary step; no statute
or regulation requires compliance) must brew and hold coffee
at a temperature that does not fall below 170 degrees. Coffee served at 180 degrees by
a roadside vendor, which doubtless expects that it will
cool during the longer interval before consumption, does
not seem so abnormal as to require a heads-up warning.
What remains is the argument that Bunn should have provided
a detailed warning about the severity of burns that hot
liquids can cause, even if 179 degrees F is a standard
serving temperature. The
McMahons insist that, although they knew that coffee can
burn, they thought that the sort of burn involved would
be a blister painful for several days (that is, a first
degree burn), not a third degree burn of the sort Angelina
experienced. [Editor=s
note: The magistrate judge had rejected this argument. Stating
that A[t]he matter of >degree= of >injury > is
not a matter of a completely different injury,= s/he held
that >[t]he degree of burns is irrelevant.=] An
affidavit submitted by Kenneth R. Diller, a professor of
biomedical and biomechanical engineering, observed that "full
thickness third degree burn injuries would require 60 seconds
of exposure [to a liquid at] 140 degrees F, but only 3
seconds of exposure at 179 degrees F." We may assume that ordinary consumers
do not know this B that, indeed, ordinary consumers do
not know what a "full thickness third degree burn" is. But how, precisely, is this information
to be conveyed by a coffee maker? Bunn can't deliver a medical education
with each cup of coffee. Any
person severely injured by any product could make a claim,
at least as plausible as the McMahons', that they did not
recognize the risks ex ante as clearly as they do after
the accident.
Insistence on more detail can make any warning, however
elaborate, seem inadequate. Indiana courts
have expressed considerable reluctance to require ever-more
detail in warnings. For
good reasons, laid out in Todd v. Societe BIC, S.A., 9
F.3d 1216, 1218-19 (7th Cir. 1993) (en banc) (Illinois
law): "Extended warnings present several difficulties,
first among them that, the more text must be squeezed onto
the product, the smaller the type, and the less likely
is the consumer to read or remember any of it. Only
pithy and bold warnings can be effective. Long passages in capital letters
are next to illegible, and long passages in lower case
letters are treated as boilerplate. Plaintiff
wants a warning in such detail that a magnifying glass
would be necessary to read it. Many
consumers cannot follow simple instructions (including
pictures) describing how to program their video cassette
recorders." Indiana has the same general understanding. To
be useful, warnings about burns could not stop with abstract
information about the relation among a liquid's temperature
and volume (which jointly determine not only the number
of calories available to impart to the skin but also the
maximum rate of delivery), contact time (which determines
how many of the available calories are actually delivered),
and the severity of burns. It
would have to address the risk of burns in real life, starting
with the number of cups of coffee sold annually, the number
of these that spill (broken down by location, such as home,
restaurant, and car), and the probability that any given
spill will produce a severe (as opposed to a mild or average)
burn. Only
after understanding these things could the consumer determine
whether the superior taste of hot coffee justifies the
incremental risk. Tradeoffs are complex. Few consumers could understand
the numbers and reach an intelligent decision on the spot
at a checkout counter. Yet
such a detailed warning (equivalent to the package insert
that comes with drugs) might obscure the principal point
that precautions should be taken to avoid spills. Indiana
does not require vendors to give warnings in the detail
plaintiffs contemplate. It
expects consumers to educate themselves about the hazards
of daily life B of matches, knives, and kitchen ranges,
of bones in fish, and of hot beverages B by general reading
and experience, knowledge they can acquire before they
enter a mini mart to buy coffee for a journey.
With warnings out of the way, the remaining theory of
liability comes into focus. Indiana has codified the principles
of product liability at I.C. ' 33-1-1.5-3. Under ' 33-1-1.5-3(a) any person
who sells "any product in a defective condition unreasonably
dangerous to any user or consumer . . . is subject to liability". If the defect in question is a
design defect (as opposed to a blunder in the manufacture
of a well-designed product), then "the party making the
claim must establish that the manufacturer or seller failed
to exercise reasonable care under the circumstances in
designing the product". In other words, a design defect
claim in Indiana is a negligence claim, subject to the
understanding that negligence means failure to take precautions
that are less expensive than the net costs of accidents. To
prevail the plaintiff must show not only that the design
is defective but also that the defective product is Aunreasonably
dangerous.@ Indiana's
law differs in this respect from Ohio's, which permits
recovery if either the design is defective or the consumer
is surprised by the risks. The
either-or nature of the liability standard in Ohio led
the court in Nadel to hold that questions about consumers'
understanding of coffee's propensity to burn present a
triable issue on the consumer expectations issue.
In Indiana "'unreasonably dangerous' refers to any situation
in which the use of a product exposes the user or consumer
to a risk of physical harm to an extent beyond that contemplated
by the ordinary consumer who purchases it with the ordinary
knowledge about the product's characteristics common to
the community of consumers." I.C. ' 33- 1-1.5-2(7). Plaintiffs concentrate their energies
on an argument that, although they knew that coffee could
burn, Bunn's coffee exposed them to harm "to an extent
beyond that contemplated by the ordinary consumer" (emphasis
added). What we have said about warnings
leads us to doubt this line of argument. Several cases, of which [a couple
of Seventh Circuit cases] are examples, reject claims under
Indiana law that consumers' failure to appreciate the gravity
of the damage a product could do made it "unreasonably
dangerous", when the consumers understood that the product
could cause a serious injury. Still, we need not decide today
whether a third degree burn is "harm to an extent beyond
that contemplated by the ordinary consumer" who knows that
hot liquids burn. For even if hot coffee is "unreasonably
dangerous", the record does not permit a reasonable juror
to conclude that the coffee maker was defectively designed.
Start with the contention that Bunn's coffee maker was
negligently designed because, in the words of Professor
Diller, "at the temperatures at which this coffee was brewed
and maintained the structural integrity of the styrofoam
cup into which the coffee was poured would be compromised
making it more flexible and likely to give way or collapse
when its rigid lid is removed." It is far from clear to us that
this effect, if a substantial one, should be laid at the
door of Bunn rather than of the cup's producer (for cup
manufacturers must make their products sturdy enough to
hold the liquids apt to be poured into them) or the retailer
(which must choose a cup designed to hold the beverage
safely). But
even if there were only one kind of beverage cup in the
world, we could not follow the argument down this line. How
does Diller know that hot beverages make Styrofoam cups
too flexible? How much more flexible, under what
circumstances? How
likely to collapse, and how does the failure rate vary
with temperature? What
is the reasoning (and the data) behind the statement we
have quoted? The affidavit does not say; we
have reproduced 100% of the pertinent exposition. Professor Diller, since 1990 Chairman
of the Department of Mechanical Engineering of the University
of Texas at Austin, is the author of more than 200 scholarly
works, many concerning heat transfer. If
there is an explanation behind, or empirical support for,
the statement we have quoted, Diller is in a good position
to furnish it. But it is not there; he offers
only a bare conclusion. We
have said before, and reiterate, that "an expert who supplies
nothing but a bottom line supplies nothing of value to
the judicial process." Diller's affidavit is inadmissible
. . . , and without it the plaintiffs have no evidence
to support this theory of design defect. Naked
opinions cannot stave off summary judgment.
At first glance plaintiffs' alternative theory is stronger. Coffee
at 180 degrees F is considerably more likely to cause severe
burns than is coffee at 135 degrees to 140 degrees F, the
maximum at which Diller believes that coffee should be
served. Moreover,
because it is costly to serve coffee hot (it takes electricity
to keep the hotplate on), risks could be reduced for a
negative outlay. How
can it not be negligent to spend money for the purpose
of making a product more injurious? But
of course people spend money to increase their risks all
the time B they pay steep prices for ski vacations; they
go to baseball games where flying bats and balls abound;
they buy BB guns for their children knowing that the pellets
can maim. They
do these things because they perceive benefits from skiing,
baseball, and target practice. . . . To
determine whether a coffee maker is defective because it
holds the beverage at 179 degrees, we must understand the
benefits of hot coffee in relation to its costs. As
for costs, the record is silent. We
do not know whether severe burns from coffee are frequent
or rare. On the other side of the ledger
there are benefits for all coffee drinkers. Jack McMahon testified that he
likes his coffee hot. Why
did the American National Standards Institute set 170 degrees
F as the minimum temperature at which coffee should be
held ready to serve? Diller does not make any effort
to reconcile his "maximum 140 degrees F" position with
the ANSI's "minimum 170 degrees F" position B though this
is something that an engineer would be sure to do in scholarly
work. On this
topic, too, Diller's affidavit is worthless because unreasoned. Without
some way to compare the benefits of a design change (fewer
and less severe burns) against the costs (less pleasure
received from drinking coffee), it is impossible to say
that designing a coffee maker to hold coffee at 179 degrees
F bespeaks negligent inattention to the risks.
None of this would matter if it were obvious that consumers
derive no benefits from coffee served hotter than 140 degrees
F; then the principle of res ipsa loquitur could do the
rest of the work for the McMahons. The
ANSI minimum of 170 degrees F prevents us from treating
as obvious the absence of benefits from temperatures above
140 degrees. What is more, even a little investigation
(albeit unassisted by the parties) shows that there may
be good reasons for selecting a temperature over 170 degrees
F, as several other courts have recognized. See
Michael Sivetz & H. Elliott Foote, 2 Coffee Processing
Technology ch. 19.2 (1963). The
smell (and therefore the taste) of coffee depends heavily
on the oils containing aromatic compounds that are dissolved
out of the beans during the brewing process. Brewing
temperature should be close to 200 degrees F to dissolve
them effectively, but without causing the premature breakdown
of these delicate molecules. Coffee
smells and tastes best when these aromatic compounds evaporate
from the surface of the coffee as it is being drunk. Compounds vital to flavor have
boiling points in the range of 150 degrees F to 160 degrees
F, and the beverage therefore tastes best when it is this
hot and the aromatics vaporize as it is being drunk. For
coffee to be 150 degrees F when imbibed, it must be hotter
in the pot. Pouring
a liquid increases its surface area and cools it; more
heat is lost by contact with the cooler container; if the
consumer adds cream and sugar (plus a metal spoon to stir
them) the liquid's temperature falls again. If the consumer carries the container
out for later consumption, the beverage cools still further. Our
point in discussing these issues is not to endorse Sivetz & Foote;
their position may be scientifically contestable. It is only to demonstrate that
without evidence that a holding temperature of 180 degrees
F is of little worth to consumers, plaintiffs cannot show
that the choice of a high temperature makes coffee defective.
It is easy to sympathize with Angelina McMahon, severely
injured by a common household beverage B and, for all we
can see, without fault on her part. Using
the legal system to shift the costs of this injury to someone
else may be attractive to the McMahons, but it would have
bad consequences for coffee fanciers who like their beverage
hot. First-party health and accident
insurance deals with injuries of the kind Angelina suffered
without the high costs of adjudication, and without potential
side effects such as lukewarm coffee. We
do not know whether the McMahons carried such insurance
(directly or through an employer's health plan), but we
are confident that Indiana law does not make Bunn and similar
firms insurers through the tort system of the harms, even
grievous ones, that are common to the human existence.
Affirmed