Thursday, April 2, 2009

Saving the Great American Burger

I posted last week about the new, 4-pound hamburger available -- finally! -- this summer at West Michigan Whitecaps games. The post was promoted by the tireless Nick at RightMichigan and, in comments following, the idea of a burger-eating challenge rose like a groundswell. (Those who know The Wiz personally will confirm that if he enters, the battle is for second place).

The great BlogProf now reports that the Fifth Third Burger may be in jeopardy due to a busybody dietitian ("dietitian" is actually Latin for "buzz killer"). Quoting the Detroit News, the Prof blogged:

Susan Levin of the Washington-based Physicians Committee for Responsible Medicine sent a letter to the Grand Rapids minor-league team on Tuesday. She's asking that the 4,800-calorie burger be labeled a "dietary disaster" that increases the risk of cancer and heart disease.

Now wait just a minute. This burger has FIVE hamburger patties, a CUP of chili, FIVE slices of American cheese, salsa, nacho cheese, and corn chips, along with lettuce, tomato and sour cream. It contains 4,800 CALORIES! Does it really need a warning label?

In Michigan law, there is a concept, usually applied in slip and fall cases, known as the "open and obvious doctrine." Under this doctrine, where the dangers are known or are so obvious that a person might reasonably be expected to discover them, there is no duty to protect or warn the person. Determining if a condition is open and obvious requires considering whether an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection.

Casual inspection? The dangers (and delights!) of the Fifth Third Burger are visible from the international space station! Those of us who are willing to assume the risk of consuming what may be the greatest burger ever are well aware of what those risks are and do not require assistance from the meddlesome Susan Levin or the PCRM.

As an aside, the persistence of lawyers and the questionable judgment of many of their clients result in lawsuits that end when judges make rulings like this one from the Court of Appeals:

"[W]e hold as a matter of law that, by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery."

Duh, really? Unfortunately, that's what our courts are reduced to deciding these days.

So, burgermeisters, take heart! We need to start training at the Shamrock Pub in Utica, Miller's Bar in Dearborn, or Nemo's in Detroit. All grills point to Fifth Third Park!

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