Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/20

 such attributes or to warn plaintiffs about them, and (2) the plaintiffs cannot establish proximate cause.


 * A. Count III: Inherently Dangerous Food


 * 1. Whether McDonalds Had a Duty to Plaintiffs Because the Dangers Were Not Within Common Knowledge

In addition to the allegations in the Complaint with regard to McDonalds’ duty, arguments raised for the first time in the papers on this motion will be addressed.


 * a. Allegations Within the Complaint

Count III essentially alleges that McDonalds’ products are inherently dangerous because of the inclusion of high levels of cholesterol, fat, salt and sugar. McDonalds argues that because the public is well aware that hamburgers, fires and other fast food fare have such attributes, McDonalds cannot be held liable. E.g., Olliver v. Heavenly Bagels, Inc., 189 Misc.2d 125, 127, 729 M.Y.S.2d 611, 613 (2001) (“Where as here a product by its very nature has a dangerous attribute, liability is imposed only when the product has an attribute not reasonably contemplated by the purchaser or is unreasonably dangerous for its intended use.”) (quoting Huppe v. Twenty-First Century Restaurants, 130 Misc.2d 736, 738, 497 N.Y.S.2d 306 (1985) (citing ''Robinson v. Reed-Prentice Div. of Package Mach. Co.'', 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 720, 403 N.E.2d 440 (1980))).

McDonalds cites to the Restatement (Second) of Torts and claims that because plaintiffs’ claims hinge on injuries resulting from excessive consumption of food, they face a high bar indeed: Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to some diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” …. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably