As noted yesterday, U.S. District Judge Robert Sweet has dismissed the lawsuit filed against McDonald's by fat New York teenagers who blame the fast food chain for their obesity. "This opinion is guided by the principle that legal consequences should not attach to the consumption of hamburgers and other fast-food fare unless consumers are unaware of the dangers of eating such food," Sweet wrote. "If consumers know the potential ill-health effect of eating at McDonald's, they cannot blame McDonald's if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald's products."
As anyone who is familiar with the history of tobacco litigation knows, this will not be the end of the story. Back in 1965, the Restatement (Second) of Torts took it for granted that the hazards of smoking were common knowledge. Explaining how plaintiffs could recover damages for a defective product, it said:
?"The article sold must be dangerous 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 fusel 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 dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous."
Yet smokers were ultimately able to recover damages for tobacco-related illness, even though they knew the habit was risky. If judges and juries can reject common sense in dealing with tobacco, why not in dealing with butter—or, in this case, cheeseburgers?