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Is The Soup Too Hot?
We have all heard of the case of the woman who sued McDonalds after she was burnt by a cup of hot coffee. Recently Canada has seen a similar case go before the Courts however the Canadian case, Laflamme v. Groupe TDL ltée, involves our own Tim Hortons and a bowl of hot potato soup.
The facts of the case are that on August 14, 1998, Laflamme purchased a bowl of cream of potato and bacon soup from the Defendant. At the time of purchasing the soup, Laflamme was being treated for a throat infection and was taking medication. As well, she suffered from depression and pre-existing neuralgia. After purchasing the soup, without blowing on it or sipping it to determine its temperature, Laflamme put a spoonful in her mouth, at which time she was burnt.
The Quebec Superior Court examined the duty on the defendant pursuant to the rules of civil liability and the contract of purchase and sale as it relates to the soup. The evidence at trial indicated that the Tim Horton’s franchisors placed requirements on restaurants to take regular measurements of temperature and to ensure soup was not being served at temperatures over 170 Fahrenheit. The Defendant failed to keep proper records of soup temperature and when records were kept, they showed temperatures in excess of the prescribed maximums.
There were two important things the Court took into account when determining liability. The first was the fact that the Restaurant was a fast food restaurant where the Restaurant knew that the clients came from the general public, would be eating quickly and would be in the restaurant only for a limited period of time to eat. The second was the fact that there was no indication on the ceramic bowl that caution should be exercised due to the consumable being burning hot.
The Court went on to find that the obligation of security is an implicit obligation in a contract for sale and that the sale of the hot soup to be one of a potentially dangerous product for which careful attention must be given to the respective obligations of buyer and seller. The Court found that the Defendant had breached the implied term of security by failing to determine the true temperature of the soup before it was served, at which time they could have cautioned Ms. Laflamme. The Court did find Ms. Laflamme contributorily negligent in failing to take precautions, such as taking a small sip of the soup to test its temperature or blowing on the soup in the spoon to cool it off.
The Court awarded Ms. Laflamme $69,454.59, $33,333 of which represented Ms. Laflamme’s non-pecuniary damages.