Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/25

 This argument comes closest to overcoming the hurdle presented to plaintiffs. If plaintiffs were able to flesh out this argument in an amended complaint, it may establish that the dangers of McDonalds’ products were not commonly well known and thus that McDonalds had a duty toward its customers. The argument also addresses McDonalds’ list of horribles, i.e., that a successful lawsuit would mean that “pizza parlors, neighborhood diners, bakeries, grocery stores, and literally anyone else in the food business (including mothers cooking at home)” (Defs.’ Mem. at 3), could potentially face liability. Most of the above entities do not serve food that is processed to the extent that McDonalds’ products are processed, nor food that is uniform to the extent that McDonalds’ products are throughout the world. Rather, they serve plain-jane hamburgers, fries and shakes—meals that are high in cholesterol, fat, salt and sugar, but about which there are no additional processes that could be alleged to make the products even more dangerous. In addition, there is the problem of causation; hardly any of the entities listed above other than a parent cooking at home serves as many people regularly as McDonalds and its ilk.

In response to this argument, McDonalds claims that, even if true, it is also a matter of common knowledge that any processing that its foods undergo serve to make them more harmful than unprocessed foods. Defs.’ Reply Mem. at 12–13. It is premature to speculate as to whether this argument will be successful as a matter of law if the plaintiffs amend their complaint to include these allegations, as neither argument has been more than cursorily presented to the Court and certainly is not properly before it. McDonalds’ argument is insufficient, however, to convince this Court that the plaintiffs should not have the opportunity to amend their complaint to include these allegations.


 * ii. Allergic Sensitivity

Plaintiffs also argue in their papers, less successfully, that McDonalds has a duty to plaintiffs because they have an “allergic sensitivity” to McDonalds fare. E.g., Restatement (Third) Tortsof Torts [sic]: Product Liability, § 2 (1998).

To state such a claim, however, “the ingredient that causes the allergic reaction must be one whose danger or whose presence in the product is not generally known to consumers. When both the presence of an allergenic ingredient in the product and the risks presented by such an ingredient are widely known, instructions and warnings about that danger are unnecessary.” Id.; see also ''Kaempfe v. Lehn & Fink Prods. Corp., 21 A.D.2d 197, 200–01, 249 N.Y.S.2d 840, 845 (1st Dep’t 1964) (holding that existence of duty depends upon manufacturer’s actual or constructive knowledge that product contains ingredient to which substantial number of population is allergic) (citing'' Tentative Draft No. 7 of Restatement (Second) Tortsof Torts [sic]).

As noted above, there are no allegations in the Complaint with regard to this claim. Plaintiffs have not alleged that cholesterol, fat, salt and sugar—or any other ingredients in McDonalds products—are “allergens,” nor have they made the case that the existence and effects of such ingredients are unknown to the public at large. In the absence of such allegations, the theory fails.


 * iii. Foreseeable Misuse

Plaintiffs also attempt to ground a duty in a claim that eating McDonalds with high