Daily Reporter Staff

A former Spirit Lake woman's lawsuit over spilled hot chocolate was dismissed in Clay County District Court last week.

Spencer Burger King owners Valgene and LaJean Long, along with the Florida-based Burger King Corporation were named in the lawsuit after Marilyn Conway went through the franchise's drive-thru on Dec. 19, 2003, according to court records. Conway "ordered hot chocolate at the window and the cup was passed to her from the driver of the vehicle," according to the ruling, which ended with Judge Don Courtney dismissing the case.

The cup contained hot water and Conway was to add the hot chocolate mix to the water herself. The lid on the cup was not securely fastened to the cup causing hot water to spill onto Conway's right foot, according to court records.

Conway has 30 days -- or until May 18 -- to appeal the judge's April 18 decision.

"I put the chances of that at less than two percent," said Joel Greer, a Spencer High School graduate who represented the company in the lawsuit.

Conway, the lawsuit alleges, sustained "grievous permanent injury, monetary cost and pain and suffering" because of the spill.

Her attorney, Lonnie Saunders of Spirit Lake argued the Longs and Burger King Corporation were negligent in:

* providing a vessel for hot water that was unsafe;

* supplying a lid for the vessel that did not fit or was improperly designed;

* providing water that was too hot for safety;

* providing or supplying the equipment that generated water too hot for safety;

* failing to properly train or supervise the employees of the Spencer Burger King.

As a result of the mishap, Conway, who is in a wheelchair and now lives in Arizona, was asking for $25,000 for past pain and suffering and another $25,000 for permanent disfigurement, according to Greer.

"By the way, I have seen a picture of it -- where she spilled it on herself and there's a 3-inch diameter blotch on her skin that I doubt you'd see now unless she gets a good sun tan," he said.

The burn required some antibiotic ointment, but no stitches. Greer said the medical bill, which was covered by Title XIX came in at under $80 and wasn't included in the lawsuit.

"All a jury could have awarded her is pain and suffering and disfigurement," Greer said. "I've got to tell you, juries don't like giving out money for pain and suffering."

Juries drawn from rural Iowa populations are especially reluctant to pay out for pain and suffering -- even if the injured party presents a legitimate claim, Greer said.

The Burger King parties said the franchisor system and the Longs were removed enough from day-to-day operations in Spencer that they would have no way of anticipating the actions of an employee. The company and investing couple argued that "hot coffee and hot chocolate require a certain water temperature to make them soluble and palatable, the temperatures are scientifically established and standardized and the danger of spilling hot liquids is open and obvious."

The groups also noted: "a tight lid could pose as much danger as a loose lid; there is no duty to place any lid at all upon cups let alone to place them so securely that the contents would not spill when tipped over."

Courtney's ruling focused more on corporate relationships than it did on the hot liquid arguments posed by the sides.

"I wish he had, and that's what I indicated to my clients when we got the ruling," Greer said. "It would have been better, cleaner and I would have felt better about it myself if he had just said 'when you buy a hot beverage, you expect it to be hot and there's not responsibility, in Iowa law, for that.'"

Greer explained the basis for Courtney's decision:

"There are really two separate concepts going on," he said. "The first one is that the individual defendants -- the Longs -- are just individual people and their only connection to the franchise is that they're shareholders of this corporation called VLBF Corporation. They were sued individually as Valgene and LaJean Long, a husband and wife, and the suit should have been against VLBF Corporation. That is the true owner of the Burger King restaurant in Spencer. They were let out, not so much on a technicality, but more because that is the reason we incorporate people -- to put the corporate assets at risk, but not your own personal assets at risk."

The judge also dismissed another part of the lawsuit, which named the Florida-based Burger King Corporation.

"If you're a landlord or a franchisor, you don't really have any responsibility for what happens when your tenant or the franchisee is out there selling burgers," Greer explained.

Put another way, Greer said a landlord who lives in Cincinnati would have no way of knowing if a tenant in Spencer caused an accident by leaving a tricycle on the sidewalk -- the unfortunate landlord would have no way to prevent the mishap.

"It's kind of a strange analogy, but that's why he's saying Burger King itself isn't responsible because it wasn't involved in the day-to-day operations," Greer said, referring to the judge.

The Spencer case is reminiscent of Stella Liebeck's controversial win. The 79-year-old woman from Albuquerque, N.M., ordered a cup of coffee from her local McDonalds in February 1992. In the process of adding cream and sugar, she spilled the entire cup of coffee on her lap. The well-known product liability lawsuit sparked debate after a jury initially awarded $2.9 million to Liebeck. The trial judge reduced the total award to $640,000, and the parties settled for a confidential amount before an appeal was decided.