BARRY J. TRICHE
MCDONALD'S CORPORATION D/B/A MCDONALD'S RESTAURANT #23088, MCDONALD'S RESTAURANTS OF LOUISIANA, INC., MCDONALD'S USA, L.L.C., XYZ INSURANCE COMPANY, AND JOHN DOE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 717-241, DIVISION " D" . HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING.
LISA A. MONTGOMERY, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
LYON H. GARRISON, KEVIN F. TRUXILLO, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson and Stephen J. Windhorst.
MARC E. JOHNSON. Judge.
[14-318 La.App. 5 Cir. 2] Plaintiff, Barry Triche, appeals the granting of summary judgment in favor of Defendant, McDonald's Restaurants of Louisiana, Inc. (" McDonald's" ), dismissing Plaintiff's claims with prejudice. For the reasons that follow, we affirm.
Plaintiff filed suit in July 2012 alleging he sustained personal injuries when three large cups of coffee that he ordered from a McDonald's drive-thru fell out of a cup holder, spilling hot coffee onto his foot, ankle and groin. Plaintiff claimed that the coffee cups were not properly secured in the cup holder by the McDonald's employee in accordance with McDonald's policies and procedures. He further alleged that the temperature of the coffee exceeded the temperature limits set forth in McDonald's policies and procedures. Plaintiff asserted that he suffered first, second, and third degree burns to his body as a result of the incident. He alleged McDonald's was liable for various acts of negligence including heating the coffee to an unsafe temperature in deviation from its standards, failing to post proper warning and advise Plaintiff of the temperature of the coffee, serving [14-318 La.App. 5 Cir. 3] scalding coffee through a drive-thru window without properly seating the coffee cups in the cup holder, and failing to train its employees on the appropriate procedures for serving coffee to patrons at the drive-thru window.
After answering the lawsuit, McDonald's filed a motion for summary judgment asserting there were no genuine issues of material fact and that it was entitled to summary judgment as a matter of law. Specifically, McDonald's argued that Plaintiff could not meet his burden of proof under either a theory of products liability or negligence. As to products liability, McDonald's alleged Plaintiff could not prove the coffee was unreasonably dangerous and pointed to the lack of evidence to support Plaintiff's allegation that the coffee was too hot. Regarding negligence, McDonald's maintained Plaintiff could not show that its employee(s) failed to properly seat the coffee cups in the beverage tray prior to the incident. McDonald's relied on excerpts from Plaintiff's deposition in which he stated that he did not know whether the coffee cups were not properly secured in the beverage tray prior to the incident.
In opposition to McDonald's motion for summary judgment, Plaintiff relied on photographs of his injuries and parts of his deposition to support his position that there were issues of fact that precluded summary judgment. Plaintiff pointed to his deposition testimony wherein he explained that he returned to the restaurant after seeking treatment for his burns and confronted the employee who served him
the coffee. Plaintiff told the employee that she did not push the coffee cups into the holder, at which time the employee allegedly responded that she did not check the cups or push them down before handing the tray to Plaintiff. Plaintiff maintained this created a question of fact as to whether McDonald's firmly and securely placed the coffee cups in the tray.
[14-318 La.App. 5 Cir. 4] After a hearing on the motion for summary judgment, the trial court granted summary judgment in favor of McDonald's and ...