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Disney Sued Over Hot Nacho Sauce

Child's family contends that Disney sold them 'scalding' sauce

- by Bob McLain, February 11, 2011

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On Wednesday, lawyers representing the family of a four-year-old boy named Isaiah filed a civil suit against Disney claiming that injuries suffered recently by Isaiah at Walt Disney World from hot nacho sauce were the result of Disney selling the sauce to them at an unsafe temperature and with 'malice and oppression'.

According to the plaintiffs, the nacho sauce was not just hot - it was 'scalding'.

Isaiah's alleged injuries are quite astounding: severe burns, permanent scarring, and emotional trauma. A photo taken of his face immediately after the incident does show trauma to his upper lip. Whatever the merits of the case, the kid deserves our sympathy.

This case is somewhat similar to the famous McDonald's Hot Coffee Case (officially known as Liebeck v. McDonald's). In that case, the plaintiff won a huge award which the judge later reduced and which likely was reduced further in the settlement.

But the plaintiff did walk away with some money. Is that likely to happen here?

My last brush with Tort law was in a classroom at New York Law School in 1989 when I paid more attention to a Greek girl in the first row than I did the esteemed professor behind the desk. So, for some real insight into the case, I asked William G. Childs, Associate Dean for External Affairs and Professor of Law at Western New England College School of Law.

Here's our brief chat:

For the plaintiff to prevail in this case, what must he prove?

PROFESSOR CHILDS: Some of that will depend on which state's law ends up controlling, but the standard doesn't vary much. The plaintiff will have to show that the defendant (or its agents) failed to act with reasonable care - essentially that they did something that a reasonable food seller wouldn't have done, and that the negligent act caused foreseeable harm. The causation part seems fairly evident here, so the real issue is likely to be whether the defendant did anything wrong.

The plaintiff in Liebeck (the 'McDonald's Hot Coffee Case') was an adult. Do you think the child's age in the Disney case makes it more likely that the court will rule in his favor?

PROFESSOR CHILDS: Well, it certainly makes it unlikely or impossible that the plaintiff (Isaiah) will be found to have been negligent himself; in cases involving adults (or older kids), the recovery can be reduced based on comparative fault. The conduct of others may be relevant, though.

Can Disney argue that parental neglect led to the injury?

PROFESSOR CHILDS: As alluded to above, it's possible to reduce the plaintiff's recovery due to the fault of others. The complaint is phrased in the passive voice in describing how the injury actually occurred: "The nacho cheese from the nachos spilled onto Plaintiff..." That is susceptible of multiple meanings, some of which might suggest fault on the part of the parents. I don't want to speculate beyond that.

In your opinion, based on the complaint and relevant case history, do you think this case will be settled or will it go to court? And if it does go to court, what is the likely outcome?

PROFESSOR CHILDS: It's really impossible to tell from what there is so far. I know that Disney has had a reputation of settling most cases, and of course something around 95% of all civil cases are resolved short of trial. The case is not the same as the Liebeck case (no matter what you think of that case), for reasons you identify (age of the plaintiff, potential other comparative fault) and for others (cheese is different than coffee, and coffee is ordinarily brewed at a higher temperature (170-190F, ballpark) than nacho cheese (evidently 140-150F). If this cheese was hotter than normal for nacho cheese, that would be potentially powerful evidence. But beyond that, all we have is a fairly brief complaint and no actual evidence.

Thank you, Bill. It will be interesting to see how Disney handles this case.

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