Nadel V Burger King

Court of Appeals of Ohio, First District, Hamilton County.

NADEL et al., Appellants, v. BURGER KING CORPORATION et al., Appellees.

No. C-960489.

-- May 21, 1997

Edward J. Felson and Stephen R. Felson, Cincinnati, for appellants. Jonathan P. Saxton,

Cincinnati, for appellee Burger King Corporation. Droder & Miller Co., L.P.A., A. Dennis Miller

and Kevin J. Ryan, Cincinnati, for appellee Emil, Inc.

I. Facts

On a morning in early December 1993, plaintiff-appellant Paul Nadel was driving his son,

plaintiff-appellant Christopher, and two younger daughters, Ashley and Brittany, to school.1

 Paul's mother, plaintiff-appellant Evelyn Nadel, was seated next to the passenger window.  

Christopher was seated in the front seat between Evelyn and Paul, with one foot on the

transmission hump and one foot on the passenger side of the hump.   Brittany and Ashley were

in the back seat.   On the way, they ordered breakfast from the drive-through window of a

Burger King restaurant owned and operated by defendant-appellee Emil, Inc. (“Emil”) under a

franchise agreement with defendant-appellee Burger King Corporation (“BK”).   Paul's order

included several breakfast sandwiches and drinks and two cups of coffee.   The cups of coffee

were fitted with lids and served in a cardboard container designed to hold four cups, with the two

cups placed on opposite diagonal corners.   Emil's employee served the coffee through the car

window to Paul, who passed it to Christopher, who handed it to Evelyn.

  Evelyn testified that she tasted the coffee in the cup on the right side of the container, by raising

the flap on its lid, and found it too hot to drink.   She also testified that the lid of the coffee

“jiggled off” and burned her on her right leg after she lifted the flap.   After bending the flap of

the lid so that it was closed, Evelyn returned the cup, covered by the lid, to the container.   She

then...