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Do I have a case? If not, should I pursue in small claims?

Santa Clara, CA |

In December of 2011, my family went ice skating at San Jose Sharks arena in San Jose, CA. My 7-year-old daughter spilled her hot chocolate and received 2nd degree burns on her midriff. 911 was called and she was treated by paramedics on-site. She still has a scar. I contacted the Manager of Operations and he said "what do you want us to do?" not being a litigious person, I didn't know what he meant. I called a couple of personal injury attorneys and they said there is no temperature regulation of hot beverages in California. I really don't want to let this go because of my daughter's scar and because children's drinks should not be scalding hot.

Do you have any advice? Should I go the Small Claims route?

Attorney Answers 4

Posted

Sorry to hear about your your daughter. Even if California does not have a specific temperature regulation in place, the injury is still very severe. You shouldn't throw in your hat just because California may or may not have some regulation in place. Obviously if the arena was violating some regulation that was designed to protect people from burns, your case could be a slam dunk. You should call around and speak to personal injury attorneys who are are not only taking on slam dunk cases.

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Posted

You may try asking the arena or the provider of the concessions if there is a no-fault medical payment they could offer to help cover the costs. Most homes and facilities have insurance to cover medical expenses regardless of fault -- with homes it can be $1,000 or so and more with bigger facilities. The other option is to try calling more attorneys. To win in small claims you will have to prove the arena did something wrong.

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Posted

If you are not able to find an attorney to undertake this case, I see no reason why you could not attempt to bring a claim through your Small Claims Court. You would be limited to the maximum recovery amount in small claims.You will probably need an expert to testify that the establishment was negligent in maintaining Hot chocolate at too hot a temperature.
This is similar to the famous McDonald's case, however, in that instance there were third-degree burns.

If this information has been helpful, please indicate below.

Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

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Posted

As Mr. Lundeen notes, your case bears some resemblance to the McDonald.'s hot coffee case. Although that case involved third degree burns, a second degree burn that leaves a scar is no laughing matter. Keep looking for an attorney. You have plenty of time before the two year statute of limitations expires. I agree that children's drinks should not be scalding hot. Thre may also be an issue as to failure to warn. After you find an attorney, one approach might be to have your attorney write a demand letter. If that doesn't work you can consider filing suit. Good luck.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

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2 comments

Asker

Posted

Thanks for your response. Can you recommend an attorney in Santa Clara County?

Paul Y. Lee

Paul Y. Lee

Posted

Unfortunately I am not familar with attorneys in Santa Clara County. In addition to avvo, you can check with Santa Clara County Bar Association Lawyer Referral Service. www.sccba.com

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