A Massachusetts mother is making a meal out of a Dunkin' Donuts hash brown, alleging in a $200,000 lawsuit that the perilous potato was so hot it severely burned her toddler son after he dropped it on his neck.

Parents have sued over injuries to their children resulting from hot mashed potatoes. In 2005, a Chili's Grill and Bar in Chesapeake, Va., paid $8,500 to settle a case alleging it was liable for overheating mashed potatoes that a child managed to splash on his face.

Robin MacLeod's lawsuit against a Dunkin' Donuts in Quincy, Mass., may be the first to allege a child was injured by an overheated or defectively heated hash brown –- and has drawn comparisons to the notorious McDonald's hot coffee case.

"There is no question the negative connotations the McDonald's case brings up is one of the challenges for us," MacLeod attorney Joseph K. Curran told Massachusetts Lawyers Weekly.

According to the complaint, MacLeod visited the Dunkin' Donuts' drive-through for a breakfast snack on Jan. 14. She ordered the hash browns -– a delicacy which is served in the form of bite-sized medallions -– and handed one to her 15-month-old son Cullen after feeling that it was “lukewarm” to the touch.

“Upon biting into the hash brown,” the suit says, Cullen “was immediately startled by its extremely hot temperature, causing him to instinctively drop the hash brown onto his neck.” Even though MacLeod quickly removed it, “the extremely high temperature of the interior portion” of the hash brown caused the boy's skin to “severely burn and blister.”

In the McDonald's case, a New Mexico woman scalded by hot coffee sued the fast-food giant for serving coffee at a temperature that was about forty degrees hotter than most other restaurants kept it. A jury in 1994 awarded Stella Liebeck $2.9 million in damages.

MacLeod doesn't say what the internal temperature of the hash brown was but is arguing a similar theory of negligence. Dunkin' Donuts, she says,

had an obligation to prepare its heated food items in a manner that was safe for all customers' consumption and reasonably would have expected that some customers would be injured by overheated food items and by food items that have not been heated evenly due to the use of defective heating equipment and/or human error in the use of such heating equipment.

"We aren't just talking about a hot food item," Curran says. "This was scalding hot and capable of destroying skin on contact, which is exactly what it did in this case.”

Causation, however, certainly seems more attenuated than in cases where hot coffee has spilled directly onto customers. Would Dunkin' Donuts reasonably have expected that a hash brown would land on Cullen's bare skin after he bit into it?

The restaurant also could argue that the difference in temperature between the exterior and interior of a hash brown is a matter of potato physics that would be known to an ordinary consumer.

“Anyone who has EVER eaten a baked potato knows the outside may be normal temp but the center is MOLTEN HOT!” a Quincy Patriot Ledger reader exclaimed.

In Massachusetts, a plaintiff's “failure to discover [a] product's defect or to guard against the possibility that such a danger exists” constitutes contributory negligence and there is no recovery if the plaintiff's negligence is greater than the total amount of negligence attributable to the defendants.

By Matthew Heller
9/21/09