Your business, McNamara's Drive-Through Coffee, sells millions of cups of very hot coffee in styrofoam cups through its numerous drive-through outlets every year. According to its operating manual McNamara's coffee is to be kept at 180 degrees, although this is on average 40 degrees hotter than coffee brewed at home and has resulted in hundreds of complaints of scalding. McNamara feels there is a competitive advantage to keeping coffee extremely hot as its aroma attracts customers. Moreover, McNamara feels that the money paid out to customers who complain for medical bills, pain and suffering is statistically insignificant when compared to the volume of cups sold yearly.
When an elderly customer suffers third degree burns (worst degree) after spilling McNamara's coffee on herself in stationary car and required several painful days of hospitalization, she sues. At trial the plaintiff's expert witness showed that liquid kept at 180 degrees can create severe burns in 2- 7 seconds, and that by lowering the temperature to 140-150 degrees the possibility of is severe burns is greatly decreased.
Based upon your understanding of elements and defenses in tort law which statement below best summarizes McNamara's liability?
options:
1) McNamara's may not be liable as there is no duty of care that extends to this plaintiff.
2) McNamara's may not be liable as the plaintiff assumed the risk of all harm by buying coffee at a drive-through window.
3) McNamara's may be liable as the type of harm that occurred was reasonably foreseeable as NcNamara's was on notice of similar injuries; and therefore, a duty of care arose to protect this client from harm.
4) McNamara's may be liable as the customer is a licensee and therefore there was a duty to warn of known dangers.