Woman Sues Dunkin' Donuts Over Hot Cider; A Look Behind Beverage Suit Tsunami

Feb. 25, 2014 -- A New Jersey woman, Jennifer Fragoso, is suing Dunkin' Donuts for burns she says were caused by hot apple cider that was too hot.

The suit, filed Feb. 11, follows national Burn Awareness Week and comes 20 years after McDonalds' famous "hot coffee lawsuit."

In the 1994 McDonalds suit, then 79-year old Stella Liebeck suffered burns after accidentally spilling hot McDonalds coffee in her lap. She sued the restaurant chain, and was awarded $2.9 million by a jury.

A judge reduced the award to $400,000, and Liebeck and the company later reached an out of court settlement for an undisclosed amount. Advocates of tort reform seized on the case as an example of frivolous litigation.

The counts in Fragoso's suit include product liability, negligence and breach of warranties. It seeks compensatory damages, punitive damages, attorney's fees, interest and costs.

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Amos Gern, the attorney representing Fragoso, told ABC News his client's suit is anything but frivolous. According to her complaint, she patronized a Dunkin' Donuts store in Belleville, N.J., in September 2012, buying hot apple cider. The cider's hotness, says the complaint, was excessive -- "beyond industry standards."

The cup's lid "was not properly secured," the complaint says. It dislodged, spilling the hot contents into her lap and causing what the suit says were second degree and third degree burns that left Fragoso "painfully and permanently injured."

Gern describes his client as a "24-year-old attractive young lady" who now, as a result of her burns, has scars on her inner thighs -- "full thickness scars that cannot heal and will never heal." For an idea of what they look like, he says, viewers can watch the 2011 documentary "Hot Coffee," which depicts Liebeck's burns.

He said Dunkin' Donuts has made no response yet to the suit, having just been served.

A spokeswoman for Dunkin' Brands, reached by ABC News, said she was unable to comment on the matter. She confirmed, however, that all Dunkin' Donuts' hot beverage cups display a warning that reads, "CAUTION: THIS BEVERAGE IS EXTREMELY HOT."

Does that warning on the cup absolve Dunkin' of some responsibility?

"That's a specious argument," Gern said. "No one suggests it didn't have a warning. We know it's hot."

The warning, he said, provides Dunkin' an opportunity to argue that the purchaser didn't handle the cup correctly.

"We know that's the approach they will want to take," he said.

The issue, however, he said, is the temperature of the cider, which was too high.

"You can't get third degree burns unless it's too hot for consumption," he said.

That's not necessarily true, says Dan Cox, author of the book "Handling Hot Coffee." Cox is an expert witness and legal consultant for hot beverage suits, testifying, he says, both for defendants and for plaintiffs though he is not involved in this case.

On any given day, he told ABC News, there are roughly 10 hot coffee, hot tea and hot chocolate suits in progress.

"The majority of these revolve around coffee burns or someone getting burned by a spilled hot beverage," he said.

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The popular belief that the fast food industry, in response to the 1994 McDonalds suit, has reduced the temperature of its hot beverages is wrong, Cox said.

The reason is that there are minimum and maximum temperature ranges necessary to extract the flavor of coffee beans or tea leaves or cocoa, and to deliver to the customer the taste they expect, he said.

All of these "are well above the threshold for burning," he said.

He offers this comparison: The temperature of very hot bathtub water would be 105 degrees. A steaming hot shower would be 120. Brewed coffee is 195 to 205 degrees; the temperature at which it's held by a restaurant is 180; and it typically is served at 165 to 180 degrees. All major retailers, he says, adhere to these temperatures.

If served coffee is 60 degrees hotter than a steaming shower, he asks, how do customers tolerate it? They take tentative sips, add cream or milk, or wait until it cools.

"Somebody spills it on himself and says it was too hot," he said. "But it has to be that hot in order for the flavor to work."

Other factors besides temperature determine whether the spilled liquid will result in a burn, he said. These include how long the hot liquid stays on the skin, and the age, sex or physical circumstances of the spill victim.

If the victim is able to remove their soaked clothing immediately, to splash cold water on their skin and to apply a topical cream, he says, they may not receive a lasting burn.

If, however, they're driving and trapped in a car seatbelt, unable to pull over to the side of the road and disrobe, then the hot liquid can cause a lasting burn.

Women, Cox said, tend to be less willing to disrobe in public than men are.

"That's what happened to poor Ms. Liebeck," he said.

Some fast food chains have taken steps to reduce the likelihood of customers being burned, he said. Some McDonalds, he said, have added machines that help secure the lid: the coffee cup is put into the device, and a piston seals the lid tightly.

Dunkin' Donuts' staff, he said, have been trained not to hand customers unlidded cups of coffee: customers are handed their cup only after a staff member has secured the lid.

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The number one thing the fast food industry should do is buy "really good cups and lids," he said. The problem is cost: When you're buying cups and lids by the tens of millions, a penny's difference adds up, he said.

He points to Australian lid-maker Smart Lid, which six months ago started selling (so far only in Australia) a lid that changes color to reflect the temperature of what's inside the cup. If what's inside is too hot to be safe, the lid turns red.

Anthony Bayss, Smart Lid's director, tells ABC News the product sells for about four cents each, or about half a cent to one cent more the cost of conventional white lids.