Restaurant Burns and Hot Beverage Injuries in Georgia

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A hot beverage is served hot on purpose, and that fact shapes a restaurant burn claim in Georgia. A burned diner can proceed as an invitee under the premises statute, in ordinary negligence over how the food or drink was prepared and handed over, or under the implied warranty of merchantability, which treats serving food or drink for value as a sale. Each route asks a different question, and heat is part of what the customer ordered under all three.

The Injury

MedlinePlus describes a burn as damage to the body’s tissues caused by heat, chemicals, electricity, sunlight, or radiation, and it names scalds from hot liquids and steam among the causes. First-degree burns damage only the outer layer of skin, second-degree burns damage that layer and the one beneath it, and third-degree burns damage or destroy the deepest layer of skin and the tissue underneath. Burns can cause swelling, blistering, and scarring, in serious cases shock and even death, and infection because the skin’s protective barrier is damaged; treatment depends on the cause, the depth, and how much of the body is burned (MedlinePlus, “Burns”).

Three Routes, Three Questions

Route The question Statute
Premises Did the owner or occupier use ordinary care in keeping the premises and approaches safe? OCGA 51-3-1
Negligence Did the defendant fall short of the care an ordinarily prudent person would use in the same or similar circumstances? OCGA 51-1-2
Implied warranty Was the food or drink, sold by a merchant, fit for the ordinary purposes for which such goods are used? OCGA 11-2-314(2)(c)

In the premises and negligence routes, the facts that bear on the question include how the drink or dish reached the diner: how hot it was, the cup and lid, how it was carried or handed across a counter or a drive-thru window, and whether anyone was warned.

The Warranty Route

A merchant seller impliedly warrants that food or drink is merchantable unless the warranty is excluded or modified, and serving food or drink for value, on the premises or to go, counts as a sale (OCGA 11-2-314(1)). For a hot drink, the warranty question is whether the drink, as served, was fit for the ordinary purpose for which such drinks are sold (OCGA 11-2-314(2)(c)). The warranty also reaches a member of the buyer’s family or household who is expected to consume the goods and is injured by the breach, and a seller cannot exclude that extension (OCGA 11-2-318).

The Diner’s Own Conduct

A diner’s own handling of the drink can reduce or defeat recovery. A plaintiff who could have avoided the consequences of the defendant’s negligence by ordinary care is not entitled to recover (OCGA 51-11-7), and otherwise the damages are reduced by the plaintiff’s percentage of fault, with no recovery at 50 percent or more (OCGA 51-12-33).

For example, imagine a coffee handed through a drive-thru window with a lid that was not secured, which the driver then wedges between the knees while pulling away. A jury could weigh the lid against the choice of where to hold the cup. If it found $90,000 in damages and assigned the driver 40 percent of the fault, the award would fall to $54,000; at 50 percent or more, the driver would recover nothing.

Frequently Asked Questions

Must the diner notify the restaurant to keep a warranty claim?
Yes. A buyer must notify the seller of the breach within a reasonable time after discovering it, or should have discovered it, or be barred from any remedy (OCGA 11-2-607(3)(a)).

How long does a burned child have to sue?
A person under 18 when the claim accrues has the same time after turning 18 that others have, which for an injury to the person is two years, except as OCGA 9-3-33.1 provides (OCGA 9-3-90(b); OCGA 9-3-33).

Is there a different deadline for the warranty claim?
A claim for breach of a contract for sale must be brought within four years after it accrues, and a breach of warranty occurs when delivery is tendered (OCGA 11-2-725(1), (2)).

Can the restaurant’s own records be used as evidence?
Records kept in the regular course of a business, such as equipment or temperature logs, can be admitted under the business records exception if they meet its requirements (OCGA 24-8-803(6)).

  • MedlinePlus, “Burns” (last updated Oct. 10, 2024)
  • OCGA 51-3-1; OCGA 51-1-2
  • OCGA 11-2-314(1), (2)(c); OCGA 11-2-318; OCGA 11-2-607(3)(a); OCGA 11-2-725(1), (2)
  • OCGA 51-11-7; OCGA 51-12-33
  • OCGA 9-3-33; OCGA 9-3-90(b); OCGA 9-3-33.1
  • OCGA 24-8-803(6)

Disclaimer

This article provides general information about restaurant burn claims under Georgia law. It is not legal advice and does not create an attorney-client relationship. Which theory applies, and which deadline governs, depend on the specific facts, the age of the injured person, and the date of the injury. A person burned at a restaurant should consult a licensed Georgia attorney about the particular situation.

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