Sam:
No, we’re not. At least, I’m not. I’m just trying to keep it from being used incorrectly (700 claims, 700 incidents, 700 burns, etc.).
I’m not, but it appears that you aren’t reading my posts. The remoteness of the risk of injury is an important factor in a negligence lawsuit, but it is not the determinative factor.
Fine, toss on “the coffee takes better” to the social utility side. Even if McDonald’s argued this (I’m not sure they did, but anway), how much social utility should be attributed to that? The public, by buying the product, had already demonstrated that it was content with the “worse” and cooler coffee sold by McDonald’s competitors. (Sides, you ever have McDonald’s coffee? Even when they were brewing it hotter, it wasn’t “good”. ;))
quote:
[The] executive director of the Specialty Coffee Association of America . . . is called upon frequently in similar cases . . . . [He] says the McDonald’s defense erred by not challenging the figures cited for home coffee brewers, which were incorrect. Standards set by the Association of Home Appliance Manufacturers require brewing temperatures to fall between 170 degrees and 205 degrees Fahrenheit and holding temperatures to be at least 130 degrees. [¶] The coffee industry has even higher standards. . . . They set a minimum water temperature of 195 degrees and a maximum of 205 degrees. To maintain flavor, coffee must be held at 185 degrees to 190 degrees. (emphasis mine).
How does that make the jury determination wrong? The jury is only capable of looking at the evidence presented to them. The evidence you cite above may well have made a difference, but the jury never heard it. Based on the evidence presented to them, a verdict for compensatory damages was proper (though not necessarily punitive damages - I promise I will get to that).
If McDonald’s failed to put on exculpatory evidence, the jury cannot be faulted. The remedy for McDonald’s is to sue their attorneys for malpractice.
Sua
I haven’t linked to everything I read. This is another part of a link I posted previously:
http://www.cooter-ulen.com/tort_liability.htm#McDonald’s Coffee Case
This one says “complaints”. The link in the o.p. says complaints that “have been settled by the Corporation”. I have no idea what that means. As far as we know, it could mean McDonald’s gave them an apology and a coupon for a free Big Mac.
Logically, if you are trying to establish that 180 degree coffee creates a risk for instantaneous 3rd degree burns way beyond the risk of 160 degree coffee, you would need to show that a significant number of people GOT INSTANTANEOUS THIRD DEGREE BURNS. All we have is that an INSIGNIFICANT number of people were “burned”. But 160 degree coffee can also burn. As far as proof goes, that’s pathetic.
[I’m not quite sure how Robert Knall gets the 1 in 24 million figure - I get about 1 in 14 million. However, it remains an unbelievably low number either way.]
If there is some vast number of burn victims far exceeding 700 people in 10 years, DON’T YOU THINK THE PLAINTIFF’S LAWYERS WOULD HAVE BROUGHT IT UP IN TRIAL? I don’t get the feeling that Ms. Liebeck’s lawyers didn’t know what they were doing - after all, they originally got an almost 3 million dollar judgment for their client. If all these people supposedly complained, their letters would have been in McDonald’s files. I suppose you could make a case that there were massive numbers of phoned-in complaints. But do you really think these hoards of horribly burned customers would just make a phone call and then let the matter drop without writing a letter, if it wasn’t resolved to their satisfaction? It’s pure speculation - and unlikely at that.
But FOR THE SAKE OF ARGUMENT ONLY, let’s say that somehow there were twice as many incidents, and somehow it didn’t get brought up in trial. 1400 out of 10 billion is STILL trivially different from zero.
Unless someone has a cite that shows a very large number of complaints/incidents/lawsuits beyond 700, I don’t find this argument at all convincing, no matter how many times it is repeated.
[Not to pick on you, spooje - Your post just happened to be the one handy to quote.]
One more time - the plaintiff has to prove no such thing. Notice may be taken of facts commonly known in the community. It is a fact commonly known in the community that hotter things are more likely to cause burns than cooler things. So, everyone walked into court with the fact established that 180 degree coffee is more likely to cause serious burns than 160 degree coffee. That is all that needs to be established to demonstrate there was an increased risk caused by McDonald’s actions.
If you have a problem with the four-part test for negligence I have set forth (in excruciating detail) have at it. If you think the balancing test set forth in the 4th part of the test should have come out in favor of McDonald’s, explain why.
But stop coming up with your own tests, then arguing that the jury was wrong because they didn’t apply your test. The jury followed the law, at least as concerns compensatory damages.
This is getting ridiculous.
Sua
Sua, there are two unrelated issues here. The first is whether the jury, given the information they received, came to the correct decision.
The other is whether the decision in this case was just. Did the defense screw up? Did the jury lack in understanding of the technical issues?
In other words, some of us are not trying to determine if the jury was technically correct given the circumstances, we are attempting to re-try the case here. I think that’s why we’re all talking past each other. You’re approaching this as a lawyer evaluating the trial itself. We’re approaching it as if the trial never happened, but the situation had just come up anew.
Should a company that manufactures a product that has a ‘defect’ rate well under 1 part per million be held liable in this situation? Forget the technical details of how the trial was presented. Approach the issue objectively and analyze it on its own merits.
Sua, there are two unrelated issues here. The first is whether the jury, given the information they received, came to the correct decision.
The other is whether the decision in this case was just. Did the defense screw up? Did the jury lack in understanding of the technical issues?
In other words, some of us are not trying to determine if the jury was technically correct given the circumstances, we are attempting to re-try the case here. I think that’s why we’re all talking past each other. You’re approaching this as a lawyer evaluating the trial itself. We’re approaching it as if the trial never happened, but the situation had just come up anew.
Should a company that manufactures a product that has a ‘defect’ rate well under 1 part per million be held liable in this situation? Forget the technical details of how the trial was presented. Approach the issue objectively and analyze it on its own merits.
BLOWERO –
No worries. I was just having a bad day. I’m a pretty smart ass, myself. 
That’s true, but it doesn’t mean the conclusions of the jury didn’t make sense.
No. Why would the number of injuries have to be SIGNIFICANT, if the injury itself is very serious and if injuries of that severity could be avoided altogether by a cheap and easy means? And you don’t have to prove a remedy of the situation in order to show liability. You have to prove the person (or company) acted unreasonably, but you don’t have to prove they could have done something else that would have been more reasonable. That is for them to do in their defense: “We did it this way because there wasn’t any other way to do it.” Obviously, if you know the defendant could have taken simple steps to prevent the injury but willfully declined to take those steps, that will go to the issue of whether the defendant’s conduct was reasonable, or was egregious, but that is not something you have to specifically prove in order to recover.
I don’t think it was a battle of the experts. It seems like the most damage was done by the testimony of McDonalds’ own people, regarding their knowledge of the danger, their knowledge of how easily it could be fixed, and their refusal to fix it. But even if it was a battle of the experts, so what? Many (perhaps most) trials include the presentation of evidence by opposing experts. The jury must decide whose expert is more credible and more persuasive. Just because this jury believed one expert when you would apparently believe the other, doesn’t mean they were wrong.
You do realize that the jury also found her partially liable, yes? So on what basis do you assert that her failure to move “didn’t matter”? Maybe that’s one of the reasons the jury reduced the award.
I’m sorry – where did I say I faulted them for doing a CBA? Where did I fault them for not doing one?
[qutoe]I think it would have hurt them. Juries tend to hate big corporations, and it would give them an excuse to think “Hey, they were just doing it for the money”. (And no, I still didn’t say juries are stupid).
[/quote]
They were doing it for the money. That’s pretty clear. They had an easy and cheap means to reduce injuries of this severity down to none, and they refused to do it. Why? For the money. The only other possible excuse would be to say “We did it because that is the temperature that optimizes the taste of the coffee. And we want you, our beloved customers, to have the best possible coffee.” I can find no indication they made that argument, however.
Well, what do you mean by “severe”? I am talking about injuries of this severity – i.e., full-thickness, third-degree burns in less than 10 seconds. How about a second-degree burn suffered in 30 seconds? Is that severe? How about a first-degree burn, but over a larger amount of your body? How severe is that? The injury we are discussing here is a third-degree burn sustained in a span of time that was too short to reasonably expect the burn-sufferer to be able to act to prevent it. Injury is a continuum, as I have said before, and concluding that one injury is very severe does not preclude concluding that other injuries might be severe as well. In this case, McDonalds had an easy and cheap way to prevent burns of this severity. Does that mean that no one would be burned at all Obviously not. But it would mean that no one would be burned this badly.
I find the phrasing here interesting. If you fall on a barbeque, and cannot scramble up within the 10 seconds it takes before you are severely burned, is it accurate to say you have “held the barbeque next to your skin”?
“If any”? We know of at least one, right? I mean, unless you’re asserting this woman was lying. And what the hell does “virtually zero” mean? One is more than zero, right? Once again: The jury was apparently not impressed with the “percentage-wise/virtually zero” argument, because a simple and cheap action could have reduced the percentage of burns of this severity, sustained in this amount of time, to actual zero. As in none. And in light of that, they found McDonalds refusal to undertake that cheap and easy step to be unreasonable. It would not matter if the actual number of injuries of this severity/time was ONE and the number of incidents was a BA-ZILLION, if McDonalds could have easily prevented that ONE, at no cost of effort to itself. In other words, and as I have already said: The likelihood of the injury is only one factor, and not necessarily the determinative factor, in liability.
You misread my posts. I said that McDonalds could cheaply and easily attain literal zero of injuries of this severity, simply by turning the knob down on the coffee pot. And that in light of the ease of the fix, the jury might well decide that no injury of this severity should be acceptable. In fact, this appears to be what they did decide. But I am talking about this injury – a third-degree burn in less than, say, 10 seconds. I am not talking about less severe burns, or burns sustained in a longer period of time.
That is exactly what juries are supposed to do. The entire inquiry of whether a given action is “reasonable” or not necessarily involves placing that action on a continuum with “perfectly fine” on one end and “absolutely not okay, ever ever ever” on the other. And the jury decides where on that line the action in question falls. This is not an arbitrary determination; it is made after weighing all the facts and opinion presented to you as a jury. “Here is the line: You were below it, so your are not liabile, or you were above it, so you are.” That’s what juries do.
:: Shrug :: Okay. Don’t buy it. The jury did. The jury determined that the optmizing of profits or flavor – both the concern of the “coffee experts” – did not justify running the risk of burns of this severity. You disagree. Fine with me. That obviously does not mean the jury was high on crack to decide as it did.
You think everyone knows that spilling coffee on their pants will result in third-degree, skin-graft necessitating burns in 5 to 15 seconds? I seriously doubt it.
Excuse me, but – Duh. Witnesses are presented to the jury. They do their song and dance, relate their stories, give their opinions. And the jury decides who is more persuasive and credible – who makes the most sense, who they believe. When two experts attempt to testify to opposite conclusions, the jury must pick one to believe. That’s not “arbitrary;” that’s the way it works.
SAM –
I don’t think anyone has done that. What we are saying is that if McDonalds coud have easily avoided injuries of this severity (third degree, suffered in this short a period of time) by a simple and cheap remediation, then maybe any number of injuries of this severity is an unacceptable number. (A) People (some, not many but some) get really hurt this way. (B) You could have easily prevented that by doing something that cost you nothing (except some profits) to do. (C) You knew both (A) and (B), but you consciously decided not to fix the problem. (D) Therefore, we think you should pay for the few people who get hurt. (And, again, if this is just so-not-a-problem because this really doesn’t happen to hardly anyone, then pay the ‘hardly anyone’ for her injuries and continue taking to the bank the money you make from the other multi-billion coffees you sell. Nobody made McDonalds take this to trial.)
Well, as a legal matter, “assumption of risk” is the wrong term. It would be “contributory negligence” – i.e., doing something unreasonable yourself that contributed to your own injury or damages. And, again, the jury here did find this woman contributorily negligent, and reduced the damages award accordingly.
SAM –
If the jury came to the correct decision, how could the decision be other than just? What is the distinction you’re drawing here – between a decision that is right and one that is fair? How could one that is the former ever not be the latter? The only way I can see to do that is by appealing to the idea of equity, not law – i.e., yeah, the underlying principle was correct, but the result still isn’t fair. Usually “not fair” means the punishment is disproportionate to the harm done. The spanking is too severe, in other words. And that’s exactly what the judge concluded when he decided to reduce the punitive ware from over $2 million to less than $500 thousand. But you don’t appear to mean to be arguing that the decision was unfair (i.e., “unjust”); you appear to me to be arguing that the decision was wrong.
Is that the effort? Or is the effort to decide if the case was decided wrongly? Because I’ve been under the impression the issue was the latter. Personally, I have no interest in the former – it’s based too much on hypothesizing facts and there’s no way to reach a consensus on which web source is “better” or more convincing. But if that’s the deal, you kids have fun. 
jodi
You keep repeating things like this:
First of all, EVERYTHING McDonald’s does is ‘for the money’. They have a fiduciary duty to their stockholders to take responsible steps to make the most money they can, while staying within accepted practices for the product they sell. So saying they did it for the money is irrelevant. If they HAD turned down the temperature, that also would have been ‘for the money’ - their CBA would have told them that that was the best balance of risk vs revenue and cost.
Second, you keep saying they had an ‘easy and cheap’ way to fix the problem. You have offered NO evidence that this was the case. Focusing on which knobs they would have to turn is silly. By that standard, they have an ‘easy and cheap’ way to reduce their electricity bills - just turn off the switches to the equipment.
How much would McDonald’s lose to wastage? How much revenue would they lose to the competitors if their coffee wasn’t as enjoyable? I haven’t seen one shred of evidence suggesting that it was ‘cheap’ to fix this problem.
Clearly, McDonalds felt that it wasn’t cheap, because as you say, changing the temperature of their coffee is easy. They could have changed their entire coffee distribution temperature with one memo. They instead chose to settle hundreds of complaints and take the risk of a major lawsuit. This wasn’t malice or laziness. Clearly, their experts felt that, on balance, their coffee was set at the right temperature, and they would incur significant costs if they deviated from it.
OK, fine. But we have to agree on the standards for determining whether the result was just. I submit that the appropriate standard is common law negligence jurisprudence, the relevant factors I have presented above. Do you have an alternative standard to propose?
As for a retrial, two points:
(1) None of the evidence brought up here but not brought up in the trial - for example, that coffee tastes better when brewed hotter - would affect the outcome of this case. See my conluding paragraph, below.
(2) there are no “technical issues” in play here. You keep asserting that this is a “defects” case. It is not. There is no “technical” issue in the facts that (a) hotter temperatures increase the potential risk of injury and (b) the coffee could have profitably been served at a lower temperature. Issue (a) is resolved by looking to common knowledge; issue (b) is resolved by looking at the conduct of McDonald’s competitors and determining that they profitably served coffee at lower temperatures.
Unlike a defects case, this was about voluntary conduct by McDonald’s. They could have acted otherwise. They chose not to.
Objectively, that issue is not relevant in a negligence action. It doesn’t matter if we are looking at the actual trial or our hypothetical retrial. Because this ain’t a defect issue.
It doesn’t matter how small the baseline risk is. The question in negligence is did the conduct of the party increase that risk?
The “1 part per million” is only relevant as part of the determination of the magnitude of the risk. It does not answer the question.
I have provided my analysis of the balancing test. My analysis is as follows:
- The social utility of increasing the serving temperature of coffee to above industry norms is minimal. That the coffee tastes better at hotter temperatures (which issue was not raised at trial) is of marginal social utility at best, and does not affect my analysis.
- The magnitude of the risk is extremely small, but is not minimal. The odds of actual serious injury is tiny. The interest affected - human life and limb - is accorded very high value in law and in society. The extent of the injury to the interest affected - third degree burns - is significant.
- The balancing test therefore weighs in favor of a finding of negligence.
Criticize my analysis as you see fit, and toss in whatever extrinsic evidence you want. I’ll debate it.
If you do not agree that the balancing test of social utility v. magnitude of risk is an unjust test, I suggest we start a new thread on that issue. It is a question wholly separate from the merits of the coffee case.
Sua
I argue negligence, someone switches to PL. Then I switch to PL, you argue negligence.
I already settled, but, do you know the citation for this case? (strict legal definition: reporter, volume, page) If this was posted, sorry. Was this thing argued both through PL and negligence?
SAM –
“Accepted practices” according to whom? It is not an “acceptable practice” to serve coffee so hot it causes near-instantaneous third-degree burns – that was the jury’s conclusion. This amounts to saying “they were wrong,” but of course you haven’t proved why they were wrong, except to claim that industry standards should be the be-all and end-all of the issue of negligence. Both I and SUA have explained why this is not the case.
You do understand the “cost” end of a “cost/benefit” analysis, right? If you do a CBA, you determine which course you’re going to follow to maximize the benefit and minimize the cost. That doesn’t mean you don’t have to pay the cost when it comes up. If there is only a one in a ba-zillion chance if this type of injury, and McDonalds considers that an acceptable risk and refuses to turn the coffee down on that basis, fine. But then when Ms. “one in a ba-zillion” comes knocking, McDonalds arguably still has an obligation to pay. That’s the “cost” end of it.
In other words, these are two different issues: (1) Did McDonalds act unreasonably in serving the coffee that hot? This has nothing to do with a CBA. (2) Did McDonalds reasonably choose to keep the coffee temperature that high, because the risk of injury in their mind was outweighed by the desire to maximize profits? This necessary implies – indeed is – a CBA.
But No. 2 is not probative of No. 1. You want to argue that a incidence of one in a billion (or whatever) severe injuries means the actions of McDonalds were definitionally reasonable, and could not possibly be found to be unreasonable. But this is not necessarily the case. As I have said (multiple times), if the problem could be easily fixed, the jury might reasonably decide that no severe injury was acceptable. Not one in ten, not one in a million, not one in a billion, not one in a google. The incidence of injury is probative of the reasonableness of a given action, but does not by itself prove the action is reasonable. It is one factor; it is not the only factor.
Right. Have there been allegations that people are severely injured by them keeping the lights on? Could they have turned them off without significantly impacting their business (other than a hit to the profit line, and probably not much of hit at that, given the volume of their business)? If having the lights on causes severe injury (rarely, but occasionally) and they could be turned off with minimal impact to the business – you still can see, you still can order, it’s only, say, ever-so-slightly darker than it used to be), would it be reasonable to keep them on?
As I have already said, I am talking about the cost of remediation – i.e., fixing it. I am not talking about lost profits. Do you assert it would be difficult to fix the problem? Do you assert it would be expensive?
And, clearly, they lost, because, clearly, the jury disagreed about the reasonableness of their actions, in light of the ease and cheapness of remediating the problem. The only “significant costs” McDonalds would incur through remediating the particular problem would be lost profits. Do you really think the jury cared about McDonalds’ efforts to maximize its profits? How do you think that flew as an explanation for failing to safeguard the safety of its customers? It flew so well the jury punished the company to the tune of $2.9 million dollars, that’s how well it flew.
And another thing: I hope what this going on four-page discussion has at least illustrated is that this was not the simple, cut-and-dried, the-jury-must-have-been-high sort of decision it’s painted as. Because that’s what continually pains me: Every person who wants this case to be an example of the justice system run amok. “Those morons! How could they come to that verdict?”
There are two sides to this case, and I have no hopes I’m going to convince SAM or BEAGLE or BLOWERO that I am right and they have been in error. Another jury, given the arguments they are making, might have ruled as they think a jury should have ruled. That doesn’t mean the real jury were a bunch of idiots to rule as they did.. There is a legitimate argument here and, like any legitimate argument, it has two legitimate sides. It’s not one side that’s so obviously true that the other side is just ridiculous and laughable. And that’s really the point I’d like to make. Our justice system has come up with some dumb-shit decisions. Agree with it or not, this isn’t one of them.
Beagle, just did an on-line search and the case appears unpublished.
I’ve just assumed it was negligence (I missed the switches you refer to in the debate here). Negligence makes sense as the theory of liability - this isn’t a “manufacturing” issue. Coffee remains coffee regardless of what temperature it was served at.
Sam Stone
- Saying they did it for the money is highly relevant. There is minimal social utility ascribed in law to increasing profits.
- McDonald’s internal cost benefit analysis is irrelevant in law. “But your honor, we made more money by increasing the risk to the consumer” is not an argument with merit in court. “Your honor, this is the lowest risk we could impose on the consumer while still profitably providing the service to the consumer” is a meritorious defense. McDonald’s didn’t have that defense.
Um, actually, there is scads of evidence - McDonald’s competitors profitably served coffee at lower temperatures - even while competing with McDonald’s hotter and therefore “better” coffee.
That’s all the evidence necessary. McDonald’s could have profitably served the coffee at a lower temperature - the experience of their competitors proves that.
McDonald’s was seeking a competitive advantage over their competitors. You can’t do that when you increase the risk to consumers. Consider a car manufacturer who determines that they can increase their profits by using a cheaper steel alloy on their gas tanks than their competitors do. Only one in a million of their cars explode as a result. They are still negligent - because they could have used a better steel alloy.
Sua
This is a law school exam. It is obviously no legal authority at all. But the professor seems pretty adamant that the case was grounded in products liability. Since we don’t have the actual opinion, check this out. Scroll down to question 4.
I think all you need is a “dangerously defective or unsafe product.” Then you look at flaws, failure to warn, or defective design. I am pretty sure these are independent. Three does not apply here but one and two do. Also, sellers and suppliers can be sued in products liability. I am citing the general rule - your state mileage may vary.
We had a paper cup case here in Florida: 181 So.2d 641. Perhaps the plaintiff should have pursued the maker of the cup* - or McDonalds should have impleaded.
*seems equally (questionably) meritorious to me. Then we sue the maker of the car. Someone made the plaintiff’s clothes, they probably have money.
First of all, I’d like to point out that I entered this debate supporting the Plaintiff’s side. If you’ll look back in the archives for similar discussions of this case, you’ll find that I’ve agreed with Suasponte in the past, and thought that McDonald’s actually was liable.
However, I’m beginning to doubt that. I wasn’t aware before of the difference between their sales and actual damages, and as someone who has had to study and employee engineering issues around safety and risk, this bothers me a little.
Let me take some points one at a time:
Suasponte said:
Well, you’re thinking like a lawyer, and I’m thinking like an engineer. Safety engineering IS a technical subject. And from a safety engineering standpoint, a coffee burn IS a ‘defect’, in that it is an outcome of a process that is undesirable. I have no idea whether the case met the *legal requirement for being a ‘defects’ case, but from an engineering standpoint it sure is.
And unless the jurors are capable of comprehending the difficulting of engineering a process to achieve a defect rate below 6 sigma, then it IS a technical communication problem.
It bothers me that the whole field of safety engineering can be poison in court. Every time we do an FMEA, we assign potential failures and their severity, and we set an acceptable limit for defects. That limit, other than in cases where death or catastrophic damage can occur, is almost NEVER zero. In fact, most industrial processes have failure rates of around 3 Sigma, which is about sixty-seven thousand failures per million opportunities.
Another thing: I’ve seen no evidence of what McDonald’s process variance was. What was the range of temperatures they serve? Was 180 degrees the median? Depending on how good their machines are and how well they can be controlled and maintained, and how their errors manifest themselves, perhaps McDonald’s set those temperatures so that even the lower range of variance would be acceptable.
This is engineering. It’s far more complex than, “Hey, it’s just coffee. How tough is that to understand?” In fact, situations like this may be worse, because a jurie’s day-to-day exposure to coffee may make them feel like they understand the subject better than they do.
Jodi Said:
Was there not evidence in this thread that coffee served at the temperature McDonalds served it tastes better? Didn’t someone point out that McDonald’s lawyers erroneously tried to defend themselves based on the standard for home coffee machines, rather than industrial standards for coffee temperature?
This site recommends a coffee brewing temperature of between 195 and 205 degrees.
The Coffee Quality Instuture tests coffee makers. The linked page shows a pass-fail for coffee makers based on their ability to maintain coffee at a certain temperature. Any coffee maker that can’t maintain 92 degrees C. gets a failing mark. 92 degrees C is 197.6 degrees F.
The Specialty Coffee Association of America, which certifies coffee machines for the brewer’s industry, will not pass a machine that does not maintain at least 92 degrees C for 90% of the brewing cycle.
According to the Boyd Coffee Company, the proper serving temperature for Coffee is 185 degree F.
In fact, I have been unable to find any source which recommends serving coffee at a temperature below 185 degrees.
Your evidence for ‘industry standard’ is that other fast food outlets do not serve coffee at that temperature. That’s a lousy guideline, unless you can show me WHY they chose that. Because I can think of many reasons why they might. First, McDonald’s around here uses insulated foam coffee cups. If Burger King uses thin paper cups, then hotter coffee might be uncomfortable to hold. So they may have decided to trade off coffee quality for cheaper cups.
Also, it turns out from what I could read that it’s not easy or cheap to buy and maintain coffee machines that can hold those kinds of temperatures. So again, the other fast-food places may just be cutting corners and buying cheaper materials, intentionally sacrificing coffee quality.
In other words, it could be that the other restaraunts are the ones that aren’t following accepted industry practices.
Gotta run. More later.
But we are talking about legal liability. Lawyers’ definitions of defects and the like win here.
Irrelevant. It doesn’t matter why Burger King brews at lower temperatures. The lower temperatures demonstrate that coffee can be brewed at lower temperatures and sold profitably. Motivation is not important - “irreducible minimum of risk” is.
Sua
First of all, I’d like to point out that I entered this debate supporting the Plaintiff’s side. If you’ll look back in the archives for similar discussions of this case, you’ll find that I’ve agreed with Suasponte in the past, and thought that McDonald’s actually was liable.
However, I’m beginning to doubt that. I wasn’t aware before of the difference between their sales and actual damages, and as someone who has had to study and employee engineering issues around safety and risk, this bothers me a little.
Let me take some points one at a time:
Suasponte said:
Well, you’re thinking like a lawyer, and I’m thinking like an engineer. Safety engineering IS a technical subject. And from a safety engineering standpoint, a coffee burn IS a ‘defect’, in that it is an outcome of a process that is undesirable. I have no idea whether the case met the *legal requirement for being a ‘defects’ case, but from an engineering standpoint it sure is.
And unless the jurors are capable of comprehending the difficulting of engineering a process to achieve a defect rate below 6 sigma, then it IS a technical communication problem.
It bothers me that the whole field of safety engineering can be poison in court. Every time we do an FMEA, we assign potential failures and their severity, and we set an acceptable limit for defects. That limit, other than in cases where death or catastrophic damage can occur, is almost NEVER zero. In fact, most industrial processes have failure rates of around 3 Sigma, which is about sixty-seven thousand failures per million opportunities.
Another thing: I’ve seen no evidence of what McDonald’s process variance was. What was the range of temperatures they serve? Was 180 degrees the median? Depending on how good their machines are and how well they can be controlled and maintained, and how their errors manifest themselves, perhaps McDonald’s set those temperatures so that even the lower range of variance would be acceptable.
This is engineering. It’s far more complex than, “Hey, it’s just coffee. How tough is that to understand?” In fact, situations like this may be worse, because a jurie’s day-to-day exposure to coffee may make them feel like they understand the subject better than they do.
Jodi Said:
Was there not evidence in this thread that coffee served at the temperature McDonalds served it tastes better? Didn’t someone point out that McDonald’s lawyers erroneously tried to defend themselves based on the standard for home coffee machines, rather than industrial standards for coffee temperature?
This site recommends a coffee brewing temperature of between 195 and 205 degrees.
The Coffee Quality Instuture tests coffee makers. The linked page shows a pass-fail for coffee makers based on their ability to maintain coffee at a certain temperature. Any coffee maker that can’t maintain 92 degrees C. gets a failing mark. 92 degrees C is 197.6 degrees F.
The Specialty Coffee Association of America, which certifies coffee machines for the brewer’s industry, will not pass a machine that does not maintain at least 92 degrees C for 90% of the brewing cycle.
According to the Boyd Coffee Company, the proper serving temperature for Coffee is 185 degree F.
In fact, I have been unable to find any source which recommends serving coffee at a temperature below 185 degrees.
Your evidence for ‘industry standard’ is that other fast food outlets do not serve coffee at that temperature. That’s a lousy guideline, unless you can show me WHY they chose that. Because I can think of many reasons why they might. First, McDonald’s around here uses insulated foam coffee cups. If Burger King uses thin paper cups, then hotter coffee might be uncomfortable to hold. So they may have decided to trade off coffee quality for cheaper cups.
Also, it turns out from what I could read that it’s not easy or cheap to buy and maintain coffee machines that can hold those kinds of temperatures. So again, the other fast-food places may just be cutting corners and buying cheaper materials, intentionally sacrificing coffee quality.
In other words, it could be that the other restaraunts are the ones that aren’t following accepted industry practices.
Gotta run. More later.
Beagle let’s do an alternative analysis under products liability. Products liability is addressed in the Restatement (Third) Torts, Product Liability (“R3TPL”)
Food Products are covered by section 7, which simply refers back to sections 2-4. ss. 3 & 4 aren’t relevant - s. 3 deals with circumstantial eviddence of defenct, and s. 4 covers non-compliance with product safety statutes or regulations.
Section 2(a) addresses defects in manufacturing where the manufacturing deviates from the design. Again, not relevant - the design here was the higher temperatures.
Section 2(b) is relevant. “A product: … (b) is defective when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.”
Section 2© is also relevant. “A product: … © is defective because of inadequate instructions or warning when the foreseeable risks of harm could have been reduced or avoided by the provision of reasonable instructions or warnings.”
I’d like to avoid s. 2©, if you don’t mind. No one appears to be hitting that point hard.
Comment d. informs us that s. 2(b) adopts a “risk-utility balancing” test. “More specifically, the test is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design … rendered the product not reasonably safe.” Finally, “nder prevailing rules … the plaintiff must prove that such a reasonable alternative was, or reasonably could have been, available at time of sale or distribution.”
That’s it for now - gotta actually do some paid legal work. Be back soon.
V.
SAM – Did you read my post? I said “This amounts to saying “they were wrong,” but of course you haven’t proved why they were wrong, except to claim that industry standards should be the be-all and end-all of the issue of negligence. Both I and SUA have explained why this is not the case.”
In response to the point that industry standards do not carry the day, you post four links on industry standards.