Note: strict products liability makes it more likely that the plaintiff recovers. I just want to get the facts right before plunging back in. Now negligence need not be proven.
However, I contend if what Sam just told us is true the “consumer contemplates”* (the test from section 402A of the Second Restatement of Torts) really hot coffee. I know this intuitively but now we have multiple citations backing it up. I don’t see how industry standards are not relevant. Should we let the jury just make up a standard without reference to actual facts? Are we limited to looking at Burger King? This gets us back to my “open and obvious”* arguments going back to page 1. What is “known to the community”* is crucial. Here, the the open and obvious danger known to the community (hot coffee) cannot be found to be an unreasonable risk. Under this test I think the plaintiff loses big time.
The “danger-utility test.”* This is the one that might get McDonalds into some hot water. (sorry) Here we look at the magnitude of the danger as compared to the utility of the product. I leave that to the jury. The jury must look at “1) The harmful consequences in fact from forseeable uses resulting from the way the product was designed and marketed up to the time of plaintiff’s injury outweighed the benefits in terms of wants, desires, and human needs served by the product; 2) although the harmful consequences did not in fact exceed the benefits, alternative products were available to serve the same needs or desires with less risk of harm; 3) although the harmful consequences did not outweigh the benefits, there was a feasible way to design the product with less harmful consequences.” Prosser and Keaton on Torts
This test is not only confusing, but when you sift through it, it is almost impossible to find for the defendant. 2 and 3 basically say, “c’mon, find for the plaintiff.” When are there no alternatives or feasible ways to redesign the product? Under this test every seriously injured plaintiff almost certainly wins - every time.
*important legal mumbo jumbo terms related to products liability
People on the ‘con’ side seem to be having problems with the actual nature of the injury. A Third degree burn is a monumentally serious injury and is not some silly, “I put my hand on the stove” kind of boo-boo. I have an analogy. Tell me if my thinking is flawed or doesn’t work for this case.
Fast Food Company A cooks their fries in peanut oil, because they sell more this way and because it’s cheaper to do so (probably not realistic, but I don’t know the relative costs of cooking oils and/or their allergic risks). They are aware of the risk of anaphalatic shock but feel that the incidents would be so rare that it is not worth switching to canola oil. After all, their customers have shown that they prefer the taste of their peanut oil cooked fries. If they switched, they’d lose sales to the competitor across the street since there’d be no distinguishing between the two fries. They do not publish the fact that they cook their fries in peanut oil. Over the course of 10 years, they sell 100 million orders of fries. 700 people fall into anaphylatic shock and either die or nearly die. Does anyone think this company is not liable?
It also depends on how you define the product. If being hot enough to potentially burn people is an intrinsic property of coffee served at the temperature people want, then by definition you cannot modify it in a reasonable way.
Sorry I never finished my last message. I had to run out. Let me continue:
Jodi Said:
Well, like I said, I’m not a legal scholar. But is this literally true? Is ANY injury that occurs in McDonalds actionable?
Let’s say that someone slips on McDonald’s floor, and breaks a hip. The floor was not wet, and used materials standard to the industry. Is McDonalds going to be found legally liable for damages? After all, they COULD spend a zillion dollars and put non-slip flooring in all their restaraunts. Of course, people wouldn’t like walking on it as much, and it would be harder to clean, but those are CBA decisions. So if McDonalds says, “We’re going to use industry standard flooring instead of the ultra-safe non-slip flooring that costs 10 times as much”, that makes them automatically liable for any slip?
Where do you draw the line? If I’m not watching where I’m going, and slam into a door jamb and break a tooth, is McDonalds liable for my damages because they *could have put a soft rubber coating on it?
If this is the case, then the legal system is seriously screwed up. If not, then it would appear that the company is not liable for ALL long-shot accidents as you claim. Instead, they would only be liable for accidents where it was shown that their CBA was unreasonable, or they did not follow their own accepted practices.
But every time I try to show that their standards appear to be reasonable, you move the yardstick. Now you’re claiming that if a CBA shows a 1 in a billion chance of an accident, if that unlucky billionth guy has bad luck McDonalds has to pony up.
Of course it does. Let’s see if you will stipulate two things: 1) ANY activity can be made safer, as long as money is no object, and 2) McDonalds doesn’t have the resources to make every aspect of their operation totally, 100% safe and still remain profitable.
If you’ll agree with that, then how in the world are you supposed to make safety decisions without doing a CBA?
The relevant facts here should be whether or not McDonalds did a proper safety analysis of their coffee, whether their conclusions fell within reasonable standards of risk, and whether McDonalds was acting within the guidelines of their CBA.
But nowadays, if an engineer went into court and said, “We determined that out of every 1 billion cups one person might be burned severely, but that fixing that one burn case was unreasonably expensive so we chose not to”, the defendent would be in a world of trouble. But that’s EXACTLY what should be discussed. And God help you if the jury decides that you ‘traded lives for profits’. But of course, that’s exactly what every company does. So the lawyers have to do flips and twists to avoid telling the jury.
So, if the only remedy was to remove all the coffeemakers and replace them, at a cost of 10 million dollars, do you think that would be an acceptable defense?
Now, if the problem can be ‘fixed’ by rotating a knob a little bit, but as a result McDonalds loses 10 million in coffee sales, is that an ‘easy, cheap’ fix?
Because the end result to the corporation is roughly the same, given the markup on coffee.
You keep going on about the ‘easy’ fix, but I’ve seen absolutely no evidence presented by anyone just how much McDonalds thought it would lose by lowering the temperature. Until then, let’s drop the, “it was easy and cheap to change” argument.
Perhaps you should tell me what the difference is. Revenue-expenses == profit. Whether the ‘fix’ is expensive or costs in lost revenue is irrelevant. Why do you keep claiming there is a fundamental difference?
Suasponte Said:
Why is social utility relevant at all here? Are you saying that if instead of McDonalds, the woman was burned by coffee during a fundraiser for Greenpeace that would have been relevant in court? I honestly don’t understand this. Tort law should be about paying damages for negligence, not social engineering.
You lost me on the distinction between those two claims. Both come down to the same thing - the cost of implementing the remedy was more expensive than a company should reasonably have to spend. Whether the company is swimming in profit or almost bankrupt should be irrelevant. Why isn’t it?
WHY? What if McDonald’s focuses much of their profitability efforts on high-quality, good tasting, high margin coffee, while other companies choose to focus on other areas?
The only thing that should matter here is whether other companies served coffee at lower temperatures for safety reasons, and not because cooler-serving coffee machines were cheaper, or because they used cheaper paper cups which can’t be comfortably held with hotter coffee, rather than foam. Or perhaps they have a proprietary brewing method that allows them to serve it cooler. Were any such issues brought up in court?
Your argument is like saying that GM is liable for a car crash if a 2-wheel drive vehicle loses traction and crashes, because Subaru makes all their cars four-wheel drive. Again, engineers understand intuitively that tradeoffs are always made, and that different initial assumptions can lead you down different paths to the same goal.
For all I know, Burger King owns a coffee-cup manufacturing company, and their cost savings for supplying paper cups overwhelms the losses from lower sales of lukewarm coffee.
The bottom line for me: Show me the studies. Show me a CBA with an unreasonable conclusion. Show me evidence of negligence in following their own guidelines from a properly concluded CBA. Show me the millions of people that should be running around with coffee burns if the coffee was so ‘obviously’ a danger. I haven’t seen any of it. Given the few number of court cases, and the number of spills that much have occured in 10 billion servings, I can only conclude that their coffee was NOT unreasonably dangerous.
As I said before, this case seemed like a longshot accident. First, the woman had no business trying to pry a tight lid off a coffee cup while holding it over her lap. If she had just held it over the floor of the car, as I would have done, she’d be okay. Second, as I recall she was wearing some kind of clothing that did not absorb the liquid well, but held it against her skin. Finally, she was elderly, and had a lot of loose skin and was more susceptible to burns due to her age. And also, perhaps because of her age she wasn’t able to move quickly to avoid the burns.
[QUOTE]
*Originally posted by Sam Stone * It also depends on how you define the product. If being hot enough to potentially burn people is an intrinsic property of coffee served at the temperature people want, then by definition you cannot modify it in a reasonable way.
[quote]
1st degree burns? Sure. Second Degree burns? Probably. Near instantanious third degree burns? No bloody way.
BEAGLE, I never said industry standards were irrelevant; I said they were one factor to consider, and an important one at that. But they do not necessarily carry the day, and here they did not.
SAM –
“Actionable” means you can file suit (i.e., bring an action), not that you necessarily win so, yes, any injury that occurs in McDonalds that would support at least an assertion of negligence would be actionable. Whether every injury should result in the imposition of liability – of course not. The point is that a jury might reasonably find (as this one did) that the acceptable number of injuries of this type and of this severity is none. That has nothing to do with slip-and-falls or food poisoning or the Golden Arches falling off the wall and braining someone. Surely you see that your beloved “industry standards” would be different based on different facts; just so with the liability that might be imposed.
I can’t answer this becaue you haven’t provided enough information. If the floor was not wet adnt he materials not defective, what is the alleged negligence of McDonalds? In other words, what is it that McDonalds is asserted to have done wrong in order to give rise to the case? For a negligence case to be “actionable,” a plaintiff has to say “this is the duty the defendant had; this is how he/she/it breached that duty; and this is how it caused me damage.” So what’s our hypothetical breach of duty here? What does our hypothetical plaintiff allege McDonalds did wrong?
Ah. So the breach of duty alleged is inadequate or unreasonably unsafe flooring. Is McDonalds “automatically” liable for any slip? Of course not. But does its adherence to industry standards mean it is automatically not liable? No. A fact-finder (judge or jury) must determine whether McDonalds’ actions were reasonable. Industry standards are relevant but not alone determinative of that question. In other words, if McDonalds could have fixed the flooring at no cost to itself (except lost profits) and the injury was extremely severe and McDonalds knew that eventually someone would sustain that extremely severe injury . . . then yes, a jury might find it liable and find it’s flooring choices unreasonable.
Oh, I don’t know. You know coffee that’s served so hot it nearly instantaneously causes third-degree, skin-graft necessitating burns? Let’s draw the line somewhere before that.
Except, of course, that I never claimed this. What I said is that a jury might decide (as I think we can infer this jury did) that no injury of this severity and this cause is acceptable. That may well translate to their opinion that McDonalds should pay for every single one of the injuries of this type/severity/cause. But of course, the jury only decides the one case, and has no basis to impose blanket liability on McDonalds, and maybe the next jury reaches a different conclusion. So it is inaccurate to say that I ever asserted the company is liable for all this occurrences.
But, you see, that’s exactly what happened here: The jury determined that McDonalds CBA was not reasonable – the precise circumstance under which you admit a jury may impose liability. So what is your problem with the verdict again?
There is no yardstick to move. The industry doesn’t get to decide if its own practices are reasonable or not.. Just like lawyers don’t get the last word on whether they commit malpractice, and doctors don’t get the last word about whether leaving a sponge in a patient is “reasonable” or excusable. Reasonable and unreasonable are on a continuum, and the jury decides where each incident falls. “Industry standards” do not generally get a company a pass on liability – as, say, compiance with government safety standards might. That’s because the industry doesn’t alone decide what reasonable is.
But we are not talking about every aspect of their operation, are we? And we are not talking about making it “100% safe,” are we, as opposed to “safe enough that burns of this magnitude don’t occur”? Does or does not McDonalds have the resources to make this aspect of their operation 100% safe with regard to third-degree burns sustained in less time than a person might reasonably be expected to react? If they hit that mart, meet that standard, can they or can they not remain profitable?
By deciding that certain injuries from certain causes are so unacceptable that the risk of them, however small, must be removed. That doesn’t entail doing a CBA, does it? If you start from “we must fix this,” you don’t have to move on to “how much will it cost us?”, though as to that – once again and importantly – it would have cost them nothing to remediate the problem.
The jury concluded that McDonalds’ position did NOT fall within reasonable standards of risk.McDonalds, and the industry as a whole, do not alone get to decide what the reasonable standards are. I’m not asking you to agree with me, but do you at least see this point? Because I’m frankly getting tired of posting it.
You realize, do you not, that this merely begs the question? Your hypothetical witness is testifying that the remediation would have been “unreasonably expensive” – patently untrue in this case, by the way – but HE doesn’t get to decide that. The jury does. The jury doesn’t have to sit there and go, “Well, gosh darn it, an engineer said this was reasonable so, as a matter of law it must have been! Let’s all go home!” Though as to that, the plaintiff almost certainly had an engineer (and other experts) of her own, that would testify to the contrary.
And that’s perfectly okay, huh? “Trading lives for profits” – no problem there! Bring back the Pinto! As long as the industry decides the number of lives lost or injuries done is okay – and of course they’re in an unassailable position to decide that, because they’re not motivated by the desire to maximize profits – then it must be okay.
Look, this is simple: If a company decides to “trade lives for profits” then it arguably should pay for the lives it so blythely sacrificed for its profits. Again, that’s the “cost” of a “cost-benefit analysis.”
Yes. Certainly more of an acceptable defense than the one they mounted. The cost of remediation is certainly another factor to look at when deciding if the defendant was or was not negligent.
Yes. How do you allege it is not? We are talking about remediation – fixing the problem – not lost profits. Are you asserting that, if the remediation could be done by turning a knob, that would not be both easy and cheap?
No, sorry, it’s not an argument I’m willing to drop, because it’s important, seeing as how the cost of remediation is a factor that tends to show negligence. (If it costs a lot to fix, maybe you’re failure to fix it is more excusable. In other words, if it’s too expensive to fix, maybe you don’t have a duty to fix it. Recall that proving negligence involves proof of a duty and the breach thereof.) You continue to mix up lost profits and remediation, but that doesn’t mean I am required to do so as well.
Irrelevant to what? To their bottom line of profit? Sure it is. But that doesn’t mean they are the same; they clearly are not. Lost profits are just that; they are not the cost of fixing the problem, nor are they subsumed in the cost of fixing the problem. These are two different things. It doesn’t “cost” McDonalds millions of dollars to turn that knob, and it would be intellectually dishonest – to the point of being laughable – for them to say that it did. This is not an argument I can find any indication they made, BTW, and small wonder there – it would have been a sure fire way to enrage the jury more: “You could have solved this problem by having 1 million teenagers in 1 million restaurants in one second by turning a knob, correct?” “Yes.” “And that would have cost you . . . .” “Ten million dollars.” [Jury begins to dream about how much they can give the plaintiff to punish this insult to their intelligence.]
Logically, I agree with you. Legally, [beat dead horse] however, I think McDonalds knowingly shifted some risk of burning onto the plaintiff. Why? Because others got burned. They should have paid the plaintiff’s medical bills. [/beat dead horse] I think they could have turned a lawsuit into good publicity if they acted quickly. (McDonalds Pays Octogenarian Seriously Injured by Coffee Spill, page A3, The Local Paper - never to be mentioned again)
I do not agree that McDonalds should have changed the temperature of their coffee. Nor do I think the plaintiff was without fault. I guess I am for large signs which say something to the effect of “Coffee is made with water near its boiling point, which can cause severe burns.”* Make the plaintiff 50% liable and I’m happy. This is such a minor objection, I think I have become a lukewarm supporter of the plaintiff’s position.
I’m surprised we have gotten this far without delving into “proximate cause” or “control” explicitly. Given the legal test which I think was applied in this case, I believe that would only factor into reducing McDonalds percentage of comparative fault slightly.
In the law of negligence, is there a distinction between not taking extra steps to increase safety and taking affirmative steps that increase danger?
As I understand things, CBA can be used to justify the former (and the “victims” need not be paid). But from this discussion, it sounds like some people are saying that the latter cannot be justified using CBA (or, at a minimum, the additional victims must be paid).
I agree that there’s a legal question and a “moral” question. Even if the results in the case were consistent with modern products liability law, there is still the question of whether modern products liability law is a Good Thing.
Here, I would say “yes.” In general, when companies frustrate the reasonable expectations of consumers and cause harm as a result, the companies should pay. (IMHO).
Caveat: As far as the facts go, I’m going by what other people have said in this thread.
Again, Sam, legal terms may have meanings different than the common usage. It does not mean that Greenpeace is considered to have more social utility than McDonald’s. If anything, it is the reverse, since McDonald’s contributes more to the economy and the pubilc wealth than Greenpeace does.
The point of social utility is that you are allowed to shift more risks to others the more the activity in which you are engaged benefits the public. It’s really just another cost/benefit analysis.
The classic example is railroads. As is often noted in case law, even the most prudently run railroad will cause injuries and death - it is the nature of the business when you run extremely large objects at high speeds. As is also noted, railroads provide vital public benefits - the public wants and needs railroads for innumerable reasons. Thus, negligence liability will not be imposed when someone is injured in a railroad accident even though the risk was foreseeable and severe (assuming of course that the railroad is prudently run). The railroad provides a good deal of public benefit, so they are allowed to shift a good deal of the costs (in terms of risk) to the public.
In comparison, a guy who wants to build an extension onto his house is not providing much in the way of public benefits - he hires a few workers, buys some building supplies, and that’s about it for public benefit. The overwhelming majority of the benefit is for the homeowner himself. In this case, the homeowner is allowed to shift only a minimal amount of risk to the public, because he is providing minimal benefit to the public.
So, whether Greenpeace or McDonald’s was selling the coffee, the question remains the same: how much, if at all, does the public benefit from hotter coffee? McDonald’s increased profit is primarily a private benefit. The public benefits slightly if McDonald’s is more profitable, and that is considered, but is not accorded much weight.
…doesn’t seem to have been discussed. I thought that ut was a legal priciple-the lady got scalded-part of the blame was to too-hot coffee-part of the blame was her stupidity in holding the cup between her legs. So, I would have found McDonalds to be about 0.0001% responsible, the plaintiff to be 99.9999% responsible. So an award of $500,000 is made, she gets $50.00
Seems fair and reasonable to me…oops, forgot-her lawyer gets 30%, so she nets $35.00!
SuaSponte: Not always. There was a case (IIRC, in Illinois federal court under diversity jurisdiction) where the plaintiff was found to be 97% contributorily negligent and was therefore awarded 3% of the verdict amount. The validity of such a determination was upheld on appeal (opinion by Posner).
When did joint and several liability change? Because I remember reading cases from the 80’s and 90’s where several parties were found to be liable, but none of them had the resources to pay, and therefore the company with the deepest pockets wound up paying the entire amount of the judgement. This used to lead to ‘shotgun’ lawsuits where the lawyers would name anyone with deep pockets, hoping to pin even a tiny amount of the responsibility on them so they would be guaranteed the payout.
It hasn’t changed. Comparative and contibutory negligence and joint and several liability are different concepts.
Joint and several liability means that each tortfeasor is independent fully responsible for the full amount of damages. The plaintiff can’t recover more than the full amount - instead the plaintiff gets the option of choosing who to recover from (after plaintiff gets paid, the joint tortfeasors can fight it out in a contribution action to apportion who should have paid what.)
Joint and several liability comes into play when the defendants are found to be “joint tortfeasors.” That means that they have been found to have acted in concert to inflict the same injury. If an agent and a basketball team act in concert to induce a player to break his contract with his original agent, they have acted together to commit tortious interference with contract, and may be found jointly and severally liable - each are fully responsible.
If the defendants didn’t act in concert, then liability is apportioned among them, and the plaintiff can go after each only for the percentage of damages for which they are liable.
Comparative and contributory negligence addresses the issue of levels of negligence between plaintiffs and defendants. Under comparative negligence, the plaintiff’s own negligence reduces the amount of the award by the percentage of fault. Usually, though as KellyM as point out, not always, if the plaintiffs are >50% liable, they can’t recover anything.
Under contributory negligence, the minority theory at this time, if the plaintiff is at fault in any amount, he/she can’t recover.
Sua, there were more than a few verdicts of the type described by KellyM. It’s just a function of state comparative responsibility laws. In a “pure” comparative fault system, the plaintiff recovers whatever portion of her injuries are attributable to the defendant’s fault, regardless of the plaintiff’s own responsibility. When that problem became apparent, the statutes were rewritten to prevent plaintiffs who bear large percentages of responsibility from recovering against minimally-responsible defendants. At most one or two states still allow tort recovery in such circumstances.
–minty green, esq.
(Who actually wrote a couple of the reporter’s notes for the Restatement (Third) of Torts: Apportionment of Liability)
P.S.: How on earth can anybody think that 700 settlements is so small McDonald’s shouldn’t be bothered to take notice? If I’m their lawyer and I’ve had to settle 700 of those suckers, I am going to be raising hell with the dummies to get the problem fixed. That is a lot of litigation.
Yer right, minty. Mebbe its just been too long since torts class, or maybe because I don’t practice in such states, or mebbe I just wanted to forget that such a blight on the law exists. I just forgot.
Minty: It all depends on what those 700 cases were. If there were 700 cases of serious, 3rd degree burns, then yeah, that’s an issue. If, on the other hand, the vast majority of them were just people writing letters saying, “Your damned coffee burned my mouth and it was sore for a week”, and the settlement was, “Sorry about that. Here’s a coupon for a complimentary Big Mac”, then that’s a different issue.
I’ve seen no evidence presented as to what the nature of those 700 cases were.
Also important is the number of overall opportunities for the defect to manifest itself. If there were 10 billion coffees served, and each one was a potential 3rd degree burn, tehn there should have been way, way more than 700 burn cases. That’s the part of this whole case that I really don’t understand. For instance, let’s say that 1 person in 10,000 spilled coffee on themselves. That’s 100,000 people who spilled coffee on themselves. If only 700 were burned by it, wouldn’t that be evidence that their coffee was being served at a reasonably safe temperature?
It seems to me another reasonable measurement here would be how many people are burned by coffee in total in a year, which would give us some idea of the relative risk of coffee in general, as the average person drinks it. Unfortunately, after half an hour of searching I couldn’t come up with any statistics on that at all.
By the way, here’s a very similar coffee case. A woman was served a coffee in a restaraunt, which spilled in her lap and gave her 3rd degree burns.
The district court dismissed the case. It was appealed. Here’s the appeal decision:
This case in interesting, because the court agreed that the industry standard for coffee serving was between 175 to 185 degrees. The court also agreed that an average person has an understanding that coffee is hot and dangerous if spilled. That’s what those of us on the defendent’s side have been saying in this thread.
Just to give you some idea of how small a number 700 in 10 billion is, consider these statistics (compiled through emergency-room stats, primarily, which means injuries severe enough to seek medical attention) :
[ul]
[li]In 1989, 28,745 Americans reported injuring themselves with paper money and coins.[/li][li]40,000 Americans are injured by their toilets each year[/li][li]700 to 800 Americans are injured each year by swallowing batteries[/li][li]100,000 Americans are injured each year by their clothing[/li][li]40,000 Americans are injured severely enough by shaving that they must seek medical attention[/li][li]In 1991 alone, 5,744 people injured themselves playing billiards.[/li][li]In 1991, 6000 golfers were injured by their golf carts[/li][li]20,000 Americans each year are injured by their television sets[/li][/ul]
This is why I was so surprised at the low number for McDonalds coffee burns (less than 50 per year). Because when the number of opportunities for injury is up there in the billions, stuff happens. Hell, 5-gallon pails kill more people every year than are burned by McDonald’s coffee.
And by the way, when I was trying to dig up stats for coffee burns in cars, I found oodles of web sites that detailed the dangers of coffee, especially to the elderly and children. One medical center said that 1 in 3 burn cases they receive were scalds from hot coffee and tea.
That leads me to believe that tens of thousands, or maybe even hundreds of thousands of people per year are burned by coffee severly enough to seek hospital attention. Given the nature of coffee drinking (burning hot liquid continually being poured and handled and sipped even in moving vehicles), I would expect a number like that. Tens of thousands of burns. Maybe hundreds of thousands.
And McDonalds is only responsible for about 50 of them per year? Given the amount of coffee they serve, and the manner in which people drink it (a large percentage drink it in moving vehicles), that just seems really, really low.
** Sam** you are correct in that we have no definative info re those other 700 cases.
however, I believe that you are incorrect as to the likely nature of them.
without some specific medical evidence to indicate ‘serious’ injury, it’s unlikely to be a lawsuit that would need to be ‘settled’, so I think we can justify assuming some medical bills, ie physical damage by a burn. which means 2nd degree or higher.
Sorry, no link (from a pay site).
Okay, it turns out it was 700 complaints, not lawsuits. It also turns out that McDonald’s had paid out big money in the past - at least two six figure settlements. As it turns out, this McDonald’s coffee suit cost McDonald’s less than at least one settlement it made.
Also, it demonstrates that McDonald’s utterly ignored one unimpeachable legal maxim - when a retired judge tells you how a jury is likely to rule, you listen to him.
Second legal maxim: when your own representative acknowledges the risk and states you intend to do nothing about it, you are going to lose the lawsuit.
