Judge: Loren G. Freestone, Case: 37-2022-00008849-CU-PO-CTL, Date: 2023-10-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 18, 2023

10/19/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00008849-CU-PO-CTL RODGERS VS STARBUCKS COFFEE COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Starbucks Coffee Company's motion for summary judgment is DENIED.

Plaintiff Curtis Rodgers allegedly sustained third degree burns to his inner thighs and penis when the lid on a cup of hot water provided by Starbucks fell off as he was attempting to make a Nissin cup of noodles while sitting in his car parked out front of the store. Rodgers alleges that Starbucks negligently failed to secure the lid to the cup of hot water, as well as negligently heated the water above the universally recognized and recommended safe temperature of 135 degrees.

The elements of negligence are duty, breach of duty, proximate cause, and damages. (See Vasquez v. Residential Investments Inc. (2004) 118 Cal.App.4th 269, 279.) Starbucks moves for summary judgment on two grounds: proximate cause and primary assumption of risk. The court addresses each in turn.

Proximate Cause 'Proximate cause has two elements. One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.' (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 104.) The other is 'proximate cause,' which asks whether the wrongful act was 'too remote' and 'attenuated' from the injury to impose liability. (Ibid.) 'There is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the fact finder, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.' (Ibid.) Starbucks does not argue cause in fact (i.e., that Rodgers would have sustained the full extent of his injuries even if the lid had been secured and the water had only been 135 degrees). Rather, Starbucks argues that 'causation is too attenuated to hold [it] liable for an injury that occurred off its property, after Plaintiff had taken exclusive control of the cup of hot water, and whilst Plaintiff was attempting to make hot soup between his legs.' Starbucks relies on Shih v. Starbucks Corp. (2020) 53 Cal.App.5th 1063.

In Shih, the plaintiff (Shih) purchased a cup of tea from Starbucks, took it to a table, removed the lid, and while seated attempted to bend forward to take a sip from the open cup in front of her. In the process, Shih tried to push her chair a little bit, but it got pushed out more than anticipated, which caused her to Calendar No.: Event ID:  TENTATIVE RULINGS

3034419  18 CASE NUMBER: CASE TITLE:  RODGERS VS STARBUCKS COFFEE COMPANY [IMAGED]  37-2022-00008849-CU-PO-CTL grab the table and the drink to spill and burn her. Shih alleged that Starbucks was negligent by double-cupping her drink instead of using a sleeve, and by filling the cup up to the brim. (Id. at p. 1068.) The trial court granted summary judgment, and the court of appeal affirmed, reasoning as follows: 'The absence of a sleeve on the cup and presence of tea filled to the top of the cup arguably were causes in fact of Shih's injuries. Shih argues that, 'but for' the fact the cup was 'too hot and too full' to hold (although she was able to hold the cup and carry it to the table), Shih would not have 'attempted to sip the water from the cup' in the manner she did. Instead, Shih presumably would have raised the cup to her mouth, and therefore would not have leaned forward, would not have moved the chair out from under her, would not have lost her balance, would not have grabbed the table, and would not have knocked the cup off the table and spilled hot tea on herself. But that's a lot of 'would not haves,' and because of that the alleged defects in the drink were too remotely connected with [her] injuries to constitute their legal cause.' (Shih, supra, 53 Cal.App.5th at pp. 1068–1069.) In other words, Starbucks had no liability because its actions (double-cupping and filling the cup to the brim) were not of the type that generally increased the risk of the harm Shih suffered (a spilled cup resulting from a loss of balance while attempting to execute an unorthodox drinking maneuver). (Id. at p. 1069–1070.) Or, stated another way, 'the course of events was not a foreseeable result' of the alleged issues with the drink. (Id. at p. 1070.) Notably, Shih did 'not argue Starbucks' failure to properly affix the lid caused her injuries,' nor could she because she intentionally removed the lid before the incident. (Shih, supra, 53 Cal.App.5th at p. 1068, fn. 2.) The court also noted that 'the absence of a cup sleeve may have increased the likelihood of certain other risks. For example, had Shih burned her hand when she touched the cup or dropped the cup because it was too hot for her to hold, Shih might have been able to allege and show that any injuries she may have suffered were proximately caused by the absence of a sleeve.' (Id. at p. 1070.) Here, unlike Shih, Rodgers alleges that Starbucks' failure to adequately affix the lid did cause his injuries and he did not intentionally remove the lid before the incident. And whereas the plaintiff in Shih tried to hold Starbucks liable based on conduct that set in motion a chain of largely unforeseeable events, Rodgers seeks to hold Starbucks liable based on conduct that led to a much more direct and foreseeable type of injury. Specifically, the failure to properly secure a lid on a hot drink is a type of conduct that can generally increase the risk that the lid will fall off when the cup is tilted. Or, stated another way, it may be foreseeable that a customer will tilt a cup of hot water to cause the contents to flow out (to drink, make soup, or otherwise), and that an improperly fastened lid would fall off in the process, causing its contents to spill and burn. Indeed, the risk of such a burn is precisely why it can be negligent to serve a hot beverage with an unsecured lid. There are triable issues as to proximate cause, and therefore the motion is denied on this ground.

Assumption of the Risk 'Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature. Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks. The doctrine applies to any activity done for enjoyment or thrill that involves a challenge containing a potential risk of injury.' (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1297.) It is debatable whether 'soup making' is the type of activity that the doctrine is intended to cover. But even if it could theoretically apply, and even if Rodger's could be said to have assumed the risk of a burn while attempting to make his soup, in order to prevail Starbucks would need to present evidence that it did not increase that risk. (See Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1059–1060.) Calendar No.: Event ID:  TENTATIVE RULINGS

3034419  18 CASE NUMBER: CASE TITLE:  RODGERS VS STARBUCKS COFFEE COMPANY [IMAGED]  37-2022-00008849-CU-PO-CTL Here, Rodgers alleges that Starbucks overheated the water and failed to adequately secure the lid to the cup. If true, then Starbucks increased the risk of a burn. Starbucks does not submit any evidence that it did not overheat the water. And while Starbucks submitted evidence that the lid was at least partially secured and did not fall off while the cup was upright, Rodgers testified that the lid immediately fell off when the cup was tipped. Based on that testimony, the jury could reasonably infer that the lid was not adequately secured. There are triable issues as to assumption of the risk, and the motion is therefore denied on this ground as well.

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