Yes, Jodi, using the plain meaning of a term is always wrong. Your definitions provided a nice distinction without a difference, thanks.
I tried to be nice, and settle the case, but you will have none of it. Did you at least take the settlement offer to your client?
Cup holder not a safety device: “sez you.”
Robb Paraphrasing, “ownership, control, or feasibility…if controverted or impeached” This was relevant in the case how?
BEAGLE –
I wish I had a baffled smiley. You do blow hot and cold, don’t you? Res judicata and collateral estoppel are not the same things. They are as different as a case is from an issue, since one deals with the former and the other with the latter. If you see no difference there, that’s fine with me, I guess; I obviously can only tell you the difference, I can’t make you understand that there is one.
Am I the plaintiff’s lawyer here? Then, yes, I took the offer to my client and she happily settles for 20K, since all she ever really wanted was 11K for her meds. Tell your client to turn their coffee down, or keep their checkbook out; every one of these settlements will bit them in the ass one day.
Actually, “cup holder = safety device”: sez you. It’s your theory; you prove it.
Yes, Beagle, I should have confined myself to this:
As a products liability case, your above statement is most likely wrong, as subsequent remedial actions can be admitted to prove liability. Whether that occurred in Liebeck’s case, I don’t know. Forgive me for thinking that your blanket statement required mentioning its common exceptions.
Beagle,
Which kind of cupholder that a customer might request from McDonalds are you calling a safety device? The one that wraps around the cup like a sleeve but won’t prevent a spill at all or the ones with indentations that allow a person to carry four cups with only two hands but don’t even come close to preventing all spills?
I conceed that the McDonald’s employee blew it for McD’s when he said that the only reason McD’s kept the coffee that hot was to keep it fresh longer.
However, the fact that the McD’s employee was an idiot does not change the fact that coffee IS properly made at 200[sup]o[/sup]. See here for one cite. So there is a quality reason to make it with near boiling water.
**
What I’m gonna do in about 10 minutes is brew coffee in the fancy brewer that my folks bought me and see A) what temperature it comes out of the machine at, B) what temperature it is once it’s doctored and C) what temperature it is when I can drink it. “A” should be around 200[sup]o[/sup] +/-. I’ll be interested in seeing what “B” and “C” are. My guess is that “B” will end up at about 180[sup]o[/sup] and that “C” will end up at about 165-170[sup]o[/sup].
If I’m right, then I’ll stand by my feeling that McD did nothing wrong, regardless of the idiot admission (“We brewed coffee properly! And properly brewed coffee can hurt people. So we’re guilty!” :rolleyes: ). However, looking back at those numbers, they do seem kinda high…if it turns out my numbers guesstimate for “B” and “C” are way off, then you’ll see a retraction from me.
Fenris
blowero - late response but -
No, we don’t expect that you respond to every point, but it was interesting that you wanted to hijack it off to a discussion of why I did or did not choose to sue (whoever) in that case, and ignore the actual thrust of my post which was the instantaneous nature of the injury.
In my case, I was able to semi remove my clothing instantly upon the water hitting my back and still sustained 2nd degree burns. This woman wasn’t able to instantly remove her clothing and so the burns went to 3rd degree. Part if the problem could have been that she was sitting in a car, vs. me who was standing in an office. If so, then McDonalds shouldn’t be selling coffee through it’s drive through. Part of it may have been the specific nature of the clothing, but the concept remained that she still would have sustained 2nd degree burns, still a very serious injury.
To address your hijack: Why didn’t I sue the manufacturer of the pot? Why would I? the pot was manufactured to boil water, and it did that successfully. The accident happened on the job, my medical bills were paid through worker’s comp insurance (because it happened on the job) and I had sick leave that compensated me for the 10 days I was off work. (that was 10 calendar days, it was while I worked at a 24 hour correctional facility, and not necessarily office hours). That of course, was all the McDonald’s grandma was looking for (payment of her medical bills).
Who’s fault was my burn? There’s several, none of which are the manufacturer. My supervisor should not have had the thing sitting on top of a stack of magazines on top of a stack of files on top of a stack of books on a cabinet. It was dangerous, and in several ways, not the least of which was that it could tip over easily. I should have noted said item and refrained from trying to get something out of said cabinet while said thing of boiling water was sitting precariously atop. Which is analogous to McD’s being somewhat at fault for creating a dangerous situation (my boss shouldn’t have had the thing sitting in such a precarious way), and the grandma being considered somewhat at fault as well (I shouldn’t have messed w/the cabinet while that thing was sitting on top). fair enough?
Is independant research admissible in GD?
Hhmmm…my fancy-shmancy top o’ the line coffee maker (which even grinds the beans) brews the coffee a tad under 190[sup]o[/sup] (measured with my candy thermometer). However, after pouring it, adding milk, stirring it, etc, it dropped almost immediately to 165[sup]o[/sup]-ish.
And the hottest I could drink it (which is the best way…“slurping temperature”: too hot to drink without slurping) was a little under 150[sup]o[/sup] (call it 145[sup]o[/sup]). So…I conceed that the coffee was improperly served if it hit the cup at 185. Even without the milk, I’m guessing it shoulda been at about 170-175[sup]o[/sup].
Fenris
You make some good points. I thought they argued that adding cream and delay in drinking would cause the coffee to cool, necessitating a higher serving temperature. I’m not disagreeing with you, but do you have a cite? It would seem to defy common sense that everyone who gets coffee at a drive-through drinks it within 2 minutes. The study I linked to was for coffee shops, where the coffee is right there on the table - and even then there was a delay in drinking it. I would expect MORE delay at a drive-through, not less. It seems surprising that McDonald’s torpedoed their own case by saying it on the stand. You wouldn’t happen to know the actual wording of WHAT McDonald’s admitted, would you? I wish I could read the case, but I have no idea how to find it without driving to New Mexico.
Well it stands to reason that if you brew coffee at 200 degrees or more, that it will still be pretty hot when it comes out - but you do have a point. Let me do some more research right now…
Here’s another link. I just did a search on “coffee holding temperature”, and this was the first site (not having to do with McDonald’s) that came up:
http://www.javatrends.com/gifts.asp
Contrary to what a lot of people are saying, McDonald’s was not smoking crack when they came up with 185 degrees. They apparently did a poor job of refuting the plaintiff’s contention that it should be much lower.
Oh, actually that wasn’t the first site that came up - I missed this one:
http://www.rimag.com/801/ops_jm.htm
Is that a fact that came out in testimony, or did you just make it up?
I agree - it seems like they put on a really crappy defense. That doesn’t mean they were in the wrong, though.
Don’t miquote me. Please find the phrase “juries are stupid” in ANY of my posts.
BINGO! You should consider the number of complaints received. And if that number is trivially different from zero…
If I sell 5,000 cups of coffee a year, and 700 people get burned, it’s something to look into. If I sell a billion cups of coffee a year, and 700 people get burned, can you not see the difference?
That’s great - but we’re debating whether it causes instantaneous THIRD DEGREE burns. Your link just says “burn risk”. I think we have already established that hot coffee will burn you.
Here’s pldennison’s quote:
So we aren’t talking about instantaneous 3rd-degree burns vs. delayed minor burns - we are only talking about a 5-8 second difference in the amount of time it takes for EITHER temperature to produce THIRD-DEGREE burns. And that’s just what the expert that was paid by the plaintiff said. The defense expert didn’t even say that.
Oops - I’m not really suggesting that McD’s not sell coffee through their drive through (but you posted that, didn’t you??) well, what I meant was : either turn down the temp so instantaneous burns won’t be the problem or refuse to sell it through the drive through.
(hoping against hope that this goes through before 15 people jump all over my case)
Now that I think about it, it might be better to refer to New Mexico’s rule for subesquent remedial measures.
blowero
I’ve seen a couple of statements like this (not necessarily all from you) apparently distinguishing drive through customers from sit down customers (more of a delay expected for drive through etc). Is there something to suggest that Mc Donald’s serves coffee at different temperatures to their eat-in customers (who will expect to drink it almost immediately) and their drive-thru or take-out customers (who in some people’s experience are bringing it somewhere causing a longer delay,although my experience differs)
Jodi After looking back at our previous posts I think we are not on the same page. You think I am arguing whatever (RJ, CE). I was arguing that no matter how any court previously resolved any of the issues, or the case itself, we can still debate it. I am not arguing that RJ or CE applied to this debate. That was not my point, the oppostite was my point.
The SDMB hypothetical settlement check is in the mail.
Robb “Redesign” has been admitted, right?* Is that what you are arguing? The general rule you cited in your next to last post - which is what I was getting at - contradicts the statement in your last post. Note: I am not saying your last post was wrong. No mutual exclusivity exists.
I have had it with this topic. McDonalds should have settled. The temperature evidence at least raised the spectre of a products liability case. I still contend that this case stretches the definition of a defective product - and I think warnings regarding obviously hot water are the height of absurdity - but, that is what makes it a good law school hypothetical. Case closed, for me anyway. Open your wallet, Ronald.
*not a rhetorical question
Robb I think you posted when I was not expecting it. Interpret the previous post accordingly.
One final observation: Is “instantaneously” the same thing as “three seconds”?
[ul]Subsequent remedial measures is normally inadmissable in negligence to prove the defendant’s liability.
Subsequent remedial measures is more likely admissable in a products liability case to prove the defendant’s liability.
You wrote, “like McDs lowering the temperature of coffee - which is wrongly cited above as some kind of admission of guilt”.
In a products liability case, changing your behavior can be “some kind of admission of guilt”, and can correctly be referred to when suggesting the initial product was defective.[/ul]
The above is what I am getting it. If I have contradicted myself, please be kind enough to point it out so that I can explain it or learn from it.
I don’t know whether McDonald’s changed their behavior during or after the trial. We got that from the article that I’m not going to pay to read. It has been reported that the coffee temperature was lower after the trial. I do not know whether such information was presented to the jury.
blowero:
Can you not see the difference between “700 people getting burned” and “700 times in which a person getting burned resulted in a legal settlement,” since the distinction has been made multiple times in this thread? I mean, apologies for getting snippy, but Jesus. I’m sure that every single time someone was burned by McDonald’s coffee, the person hired a lawyer and ended up receiving a sum of money. Does that make any sense to you?
I vaguely remember hearing about “redesign” cases which may relate to SRMs. I think that redesigning a product has been admitted against a defendant company. I concede that subsequent remedial measures in the context of products liability are not my specialty.
The question of evidence coming in is within the judge’s discretion. Since the “abuse” standard is hard to overcome - who knows what might come in under certain circimstances? Even if there is error, that may not overturn the verdict.
Beagle, there’s certainly more about this case I’d like to see - the jury charge would be pretty interesting. For all that is written about this case on the internet, there isn’t very much information.
No, of course not, at least not in an absolute context. Now if we take three seconds and apply it to the context of human actions and human response time to unexpected stimulus? In this context three seconds is virtually instanteneous.
I did a google for “Human reaction time” and came up with a bunch of sites about how long it takes to stop a car when something happens. The numbers they present for human reaction time to unexpected events is around 1.25-1.5 seconds. So if you’ve just spilled coffee of the temperature McD’s was serving it at on yourself, you’ve got about 2 seconds from the time your brain registers “damn, we just got hot coffee spilled on us” to the time you get 3rd degree burns. That’s less time than it takes to say “Supercalifragilisticexpialidocious”. Some humans have higher reaction times, especially the elderly, and some have lower times, such as race car drivers, but this is a decent average.
Quite frankly the degree of the burn is what convinced me that McDonald’s had done something wrong. Spilling something you have just been served, especially when it’s intended that you consume it shortly thereafter(and yes, this is the normal expecation at a fast food resturant) should not cause parts of your body to look like this. (warning, very graphic)
3rd degree!?! How many of you have ever even HAD a 3rd degree burn? I never have, and I hope that I never do.
Steven
shudder
I think the picture removed any doubts I MIGHT have had.
The coffee literally cooked her skin.
OUCH!!!
BLOWERO –
You lost me here; a cite for what? And while it may “defy common sense” that everyone who gets coffee at a drive-thru drinks it within 2 minutes, surely you will also concede that it defies common sense that no one who gets coffee at a drive-thru will try to drink it within 2 minutes.
Actually, I don’t think you can. We studied the case in law school in products liability class, but it is not AFAIK a reported case. That is because it was settled before it was appealed, and (as you may know) generally only appellate cases are reported (meaning, collected into published books and kept). (I do not mean to insult the learned ones in the audience, who probably just uttered a collective “duh,” but I try to remember that not everyone reading a thread knows everything – or maybe anything – about the law.) There are, however, approximately a ba-zillion links to the case on the web, many of which talk extensively about it.
It’s not a fact, it’s an argument (hence the starter “the argument is . . .”) and, yes, I made it up, if by that you mean presented it. It’s my argument. I realize that was not clear when I phrase it ambiguously as “the argument is . . . .”
If I had quoted you, the words would appear in quotation marks. Though as to that, you said “McDonald’s argued in the trial that the number of coffee burns was statistically insignificant, but the jury obviously did not grasp the concept.” You also said, “I think McDonald’s blew it big time . . . they tried to appeal to the jury’s intellect[.]” Surely you will concede those two statements sound an awful lot like “the jury was stupid.”
Of course I can. But if you choose to embrace a .01% (or whatever) chance of very serious injury as an acceptable risk in your business (instead of taking steps to reduce that risk to literal zero – and remember that that could be done in this case at no cost or effort to McDonalds), then IMO you are still arguably liable for the .01% who are seriously injured by your product. That is the “cost” in “cost-benefit analysis.”
We are? Why? Has anyone argued that any person seated in a car could reduce their damages in, say, 3 seconds as opposed to 1? Are you arguing that? If not, is it relevant that it took 3 seconds to burn her that badly, instead of 1? If so, why?
